This document provides an overview and introduction to key concepts in the United States Constitution including the three branches of government established in Articles I-III, levels of scrutiny used in constitutional analysis, Congress' powers under the Commerce Clause, protections in the Bill of Rights such as free speech and eminent domain, and the incorporation of rights and equal protection requirements through the 14th Amendment. Key topics covered include the legislative, executive, and judicial branches, levels of scrutiny for analyzing laws, Congress' commerce power, protections for speech, religion, and property under the 1st and 5th Amendments, and the application of Bill of Rights protections and equal treatment to state laws.

1. Module # 4 An Introduction to the United States Constitution

2. Overview Introduction Articles I, II, and III Levels of Scrutiny Commerce Clause The Bill of Rights First Amendment Eminent Domain Fourteenth Amendment

3. Introduction The Constitution is the back bone of our nation Succeeded the Articles of Confederation, adopted after the War for Independence Initially contained ONLY the seven (7) Articles and NO Amendments

4. Article I Sec 1: All legislative powers in two houses: Senate House of Representatives Sec 2: House of Representatives Age requirements Each State has at least one Representative Sec 3: Senate Age requirements Sec 4: Elections

5. Article I Sec 8: Gives Congress power to: Tax Spend for the General Defense and Common Welfare Regulate Commerce Declare War Raise and Support the Military Necessary and Proper Clause

6. Article II Sec 1 Creates the office of the President/Vice President Qualifications Method of Election Sec 2: Commander & Chief of the Military Conduct Foreign Affairs Appoint Judges, Ambassadors, and other Gov’t Officers Requires “Advice and Consent” of the Senate

7. Article II Sec 3 State of the Union Address Sec 4 Impeachment Treason, Bribery, or other High Crimes and Misdemeanors

8. Article III Sec 1: Creation of the Supreme Court Sec 2: Original Jurisdiction Cases and Controversies This has been amended by Congress Sec 3: Treason “[S]hall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

9. Levels Scrutiny Strict Scrutiny Intermediate Scrutiny Rational Basis

10. Strict Scrutiny Fundamental Rights, Race, National Origin, Some types of Speech (i.e. political) Test: in order to be valid: Compelling state interest Narrowly tailored Must be the LEAST restrictive means Burden is on the GOVERNMENT to prove the Government Action is Constitutional

11. Intermediate Scrutiny Gender, Illegitimacy, Sexual Orientation, Speech: Time, Place, and Manner Restrictions Test Important Government Interest Substantially related to that Interest Burden is on the GOVERNMENT to prove the Government Action is Constitutional

12. Rational Basis Any other Government Law or Regulation (i.e. Commerce, Taxation, Spending, Criminal Laws) Test Reasonably Related Legitimate Government Interest Does not have to be the least restrictive means, only must be REASONABLE Burden is on the PARTY challenging the Government Action to show the action is Unconstitutional.

13. Commerce Clause Article I, Sec. 8, Clause 3, U.S. Const. Congress has the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Rational Basis Review Congress may: regulate the use of the channels of interstate commerce regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce)

14. Commerce Clause Prior to the New Deal the Court was very restrictive on Congress’ power During the New Deal the Court was deferential to Congress Currently the Court is more restrictive on Congress’ power United States v. Lopez, 514 US 549 (1995) and United State v. Morrison, 529 US 598 (2000) SCOTUS invalidated two Federal Criminal Statutes which tried to regulate Intra-State Crime Finding no “substantial relationship” to interstate commerce

15. Bill of Rights First Ten (10) Amendments to the Constitution: Speech, Press, Assembly Militia and The Right to Bear Arms No “quartering” of Soldiers Unreasonable Search and Seizure Self Incrimination, Takings Clause Right to Counsel Right to Jury Trial Cruel & Unusual Punishment; Excessive Bail No denial or rights Powers not delegated to the Federal Government are reserved to the States

16. First Amendment Religion: Establishment or Prohibition Assembly : right to assemble peacefully Press Speech Petition the Government for redress of grievances

17. Speech Political Speech: Fundamental Right; requires Strict Scrutiny Gov’t may regulate the Time, Place, and Manner of speech but it must comply with Intermediate Scrutiny Commercial Speech: Rational Basis Fighting Words Doctrine “[I]nsulting or fighting words, those that by their very utterance inflict injury or tend to incite an immediate breach of the peace"

18. Eminent Domain Takings Clause, Amend V: “nor shall private property be taken for public use, without just compensation.” I. e. new road ways, parks, or public buildings Kelo v. City of New London, 545 US 469 (2005) 5-4 Decision Property taken from private land owner, by Eminent Domain, and transferred to another private person Found the taking constitutional because the taking was for a “public purpose” because it would create “new jobs and increase tax revenue.”

19. Fourteenth Amendment Incorporation Due Process Substantive Due Process Procedural Due Process Equal Protection

20. The Incorporation Doctrine The process by which the Bill of Rights is applied to the many states, through SCOTUS decisions. Originally, the Bill of Rights only applied to the Federal Government Types of Incorporation Total: argument favoring total application of the Bill of Rights to the states Selective: incorporation of the Bill of Rights in small incremental steps. This is method that has been used. Most provisions have of the Bill of Rights have been applied to the states in this manner.

21. Due Process Clause “…nor shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, Amend XIV, Sec 1. Ensures fairness for persons who are subject to a Governmental Action. (i.e. criminal laws) Types of Due Process Substantive Procedural

22. Substantive Due Process Prevents the government from taking away a fundamental right, without due process (i.e. fairness) Types of Fundamental Rights “takings” De Jure: a law by its text specifically denies or infringes on a fundamental right De Facto: a law as it is applied is discriminatory in nature. Yick Wo v. Hopkins, 118 US 356 (1886). (Chinese Laundries) Level of Scrutiny Strict Scrutiny: governmental action must be narrowly tailored to further a compelling governmental interest. Must be the lease restrictive means necessary.

23. Procedural Due Process Requires that a governmental action – generally a form of adjudication – be fair and neutral Factors Notice Opportunity to be heard Fair and neutral Judge Levels of Scrutiny Strict Scrutiny: Criminal and Fundamental Rights Rational Basis: All other adjudicative hearings (i.e. administrative). Procedure must be “reasonably related to a governmental interest.”

24. Equal Protection “… nor shall any State deprive any person of life, liberty, or property … nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, Amend XIV, Sec 1. Prevents discrimination based on “suspect classes” Levels of Scrutiny Strict Scrutiny: Race or National Origin Intermediate Scrutiny: Gender Rational Basis: Age Sexual Orientation: rational basis, but some courts are using intermediate scrutiny. Lawrence v. Texas, 539 US 558 (2003).

25. Equal Protection – Race Plessy v. Ferguson, 163 U.S. 537 (1896) Separate train cars for Caucasians and Negros (verbiage at the time) “Separate but Equal” Held: that it was acceptable to separate races, as long as the facilities for each race was “equal” Brown v. Board of Education, 347 US 483 (1954) Separate Schools for Whites and Blacks NAACP brought a series of cases Held: even if separate facilities are equal, the mere separation of races is discriminatory, and therefore an unconstitutional violation of the Equal Protection Clause.

26. Review Constitutional Article Article I: Legislative Article II: Executive Article III: Judicial

27. Levels of Scrutiny Strict: government action must be narrowly tailored to further a compelling governmental interest. Burden on Government Intermediate: government action must be substantially related to further an important governmental interest Burden on Government Rational Basis: government action must be rationally related to a legitimate governmental interest Burden on Challenging Party

28. Review Commerce Clause Congress’ power to regulate the streams and instrumentalities of commerce Action must be related to commerce The Bill of Rights First 10 Amendments to the Constitution Know the basics of each Amendment i.e. Fourth Amend applies to unreasonable searches & Seizures

29. Review First Amendment Speech Levels of Scrutiny Political Time, Place, and Manner Commercial Speech Fighting Words Assembly Press Religion

30. Review Eminent Domain 14th Amendment Incorporation Due Process Substantive Procedural Equal Protection