Term Paper on "Corporate Civil Procedure & Constitutional Law"

Term Paper 32 pages (10293 words) Sources: 1

[EXCERPT] . . . .

Gilbert Law Summaries: Constitutional Law by Jesse Choper

The United States Constitution is the foremost legal authority for laws created in the United States. Though the Constitution is a federal document, it applies to all laws at every level in the United States. Therefore, any law that fails to comport to constitutional standards is illegal. The Constitution specifically prohibits certain types of laws and also dictates which branch of government has the power to enact certain types of legislation. This essay provides a brief overview of several of the key factors in constitutional law, including the areas where a practitioner is most likely to encounter constitutional issues.

Powers of the Federal Government

While the Constitution appears to establish the supremacy of the Supreme Court's decisions, the reality is that the federal courts, including the Supreme Court, only have limited jurisdiction. Federal court jurisdiction is limited to cases involving the Constitution, acts of Congress, or federal treaties; cases where the U.S. is a party; and cases involving diversity jurisdiction. The Supreme Court has two types of jurisdiction: appellate jurisdiction over federal cases or state cases involving constitutional questions, and original jurisdiction generally over disputes between states. There are limitations on the jurisdiction of the Supreme Court: there has to be a case or controversy, the parties must have standing, and the issue has to be ripe. The Constitution also discusses the limits on Congress' legislative powers. Essentially, any powers that are not delegated to the federal government are reserved to the states, though Congress can legislate in areas where the power to do so is implied. Finally, the Constitution gives specific powers to the Executive Branch. The President has all of the power of the executive branch, but he may appoint people in various capacities to carry out those duties. The President may veto legislation, may not declare war but does command the military, and has emergency powers.

Intergovernmental Relations

Next, the book considers the relationship between the state and local governments. It discusses those powers exclusive to the state and those exclusive to the federal government, as well as those areas where powers may be exercised by both state and local governments. State governments cannot pass laws trumping federal legislation. Moreover, state and local governments may not tax the federal government, but the federal government is also prohibited from taxing state property.

Regulation and Taxation of Commerce

The Commerce Clause, which gives Congress the power to regulate international and interstate commerce, is a significant source of power of the federal government. The federal government has exclusive jurisdiction over the regulation of foreign commerce. In addition, the federal government has concurrent jurisdiction with state courts over interstate commerce. This Commerce Clause-based power allows Congress to regulate intrastate activities that influence interstate commerce, as well as to regulate items that have moved in interstate commerce, even after they are no longer traveling in interstate commerce. States may regulate interstate commerce if there is no relevant federal legislation, as long as the state law is not unduly burdensome to interstate commerce.

Protection of Individual Rights

For many people, constitutional law is synonymous with protecting individual rights. The Constitution does guarantee specific protections of individual rights, and laws that violate those protections are found to violate the Constitution. The first ten amendments to the U.S. Constitution, otherwise known as the Bill of Rights, specifically address those rights applicable to citizens. Initially, the Bill of Rights was only considered applicable to federal legislation, but the Due Process Clause of the Fourteenth Amendment extended those protections to state laws. The Fourteenth Amendment's Equal Protection Clause is only applicable to state actions, but the Fifth Amendment may offer similar protections in federal proceedings. One of the most elemental of all individual rights is the right to procedural due process. Not all procedural due process must rise to the standard evidentiary hearing. Substantive due process speaks to governmental actions that would impact economic interests, social interests, and fundamental personal rights. Even if the legislature has the ability to legislate in a certain area, if the means are arbitrary or irrational the legislation violates substantive due process requirements. There are a number of fundamental personal rights protected under the Constitution. Although the right to privacy is not mentioned in the Constitution, it is a right that has repeatedly been protected by the Constitution and protects the right to abortion access (while permitting state regulations), and the right to consensual non-commercial sexual contact between adults. Other fundamental rights include: the right to interstate travel, the right to vote, rights for the mentally ill, and the right to refuse unwanted medical attention. The Bill of Rights also protects the right to bear arms.

Freedom of Speech, Press, and Association

The First Amendment guarantees freedom of speech, press, and association. There is no absolute right to free speech, but content-based restrictions on speech have to be narrowly drawn and necessary to serve a compelling government speech. Speech that is unpatriotic is protected, but there can be criminalization of speech that advocates illegal action. There is no constitutional protection for defamatory speech, and civil liability can attach to defamatory comments. However, when the subject of the speech is a public figure, the speech is generally protected unless it is stated as a fact and known to be false. The First Amendment protections do not extend to obscenity, but whether material is obscene is a mixed question of fact and law. Fighting words and other words likely to incite imminent violence can be prohibited. Commercial speech does not receive the same degree of protection as other forms of speech. Most notably, some symbolic conduct, such as burning the American flag as a form of political protest, receives First Amendment protection.

Freedom of Religion

The First Amendment also guarantees freedom of religion. The government may not establish a religion and must be neutral towards-religions. Church property is tax exempt. Public schools may not teach religion, but can promote the academic study of religions. The government cannot enact laws prohibiting the free exercise of religion, but can enact neutral laws that might otherwise prohibit a religious practice, such as recreational drug use or polygamy. There is no right to a religious exemption from a neutral law.

Equal Protection

The Fourteenth Amendment guarantees Equal Protection to U.S. citizens. Economic and social regulations are subjected to the rational basis test, which requires a rational relationship between the regulation and a legitimate government interest. Government actions impact fundamental rights or that intentionally discriminates against at group is suspect and is subject to strict scrutiny, whereby it can only be considered valid if the law is necessary to promote a compelling state interest. Classifications based on factors like gender, where there is traditional discrimination but no explicit Fourteenth Amendment protection, receive intermediate scrutiny and are held to violate equal protection unless they are substantially related to important government objectives.

State Action Requirements

Generally, only the government can violate a person's constitutional rights. However, the Thirteenth Amendment can be violated by an individual keeping a person in involuntary servitude. Moreover, the government's action or failure to take action when a person is experiencing discrimination in the private sector can be the government action.

Congressional Power to Enforce Constitutional Rights

Two clauses in the Constitution speak to Congress' power to enact legislation to protect constitutional rights. The necessary and proper clause gives the Congress the power to enact all legislation that is necessary and proper to prevent violations of constitutional rights. The Thirteenth Amendment gives Congress the power to prohibit almost all race-based discrimination, especially against African-Americans. The Fourteenth Amendment is the enabling Amendment for most Civil Rights Legislation, though the Commerce Clause is a source of power for Civil Rights Legislation, as well.

Safeguards in the Administration of Criminal Justice

The Bill of Rights has been expansively interpreted to offer criminal defendants a degree of protection in the criminal process. These protections include prohibiting the use of involuntary confessions, protections of the right to remain silent, and the exclusion of illegally-obtained evidence. Criminal defendants have a right to trial by jury, the right to an impartial jury, the right to a fair trial, the right to counsel (including appointed counsel), and proof beyond a reasonable doubt. The Bill of Rights' Eighth Amendment prohibition against cruel and unusual punishment has placed significant limitations on the death penalty, as well as required proportionality in other sentencing issues.

Conclusion

Constitutional law is an incredibly complex area, touching on almost all legal issues presented in U.S. courts. The information presented herein provides only a bare outline of the key issues in constitutional law.

Summary: Gilbert Law Summaries: Conflict of Laws by Herma Hill Kay

Introduction

Given that disputes can and do arise between people or entities who are residents of different states or even different countries, the question arises which set of laws is applicable to settle the dispute. Conflict of laws refers to those procedural rules used to determine which legal system's rules apply… READ MORE

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