Transcript document

The Historical and Constitutional
Foundation
Chapter 1
What is the Law?
• A body of enforceable rules governing
– relationships among individuals, and
– between individuals and their
government/society as a whole.
Sources of Law
• There are four primary sources of law today
in the United States:
– Constitutional law
– Statutory law
– Administrative law
– Case law
Sources of Law
• Constitutional law
– Sets forth the fundamental rights of the
people living within the United States or
a given state.
– Describes and empowers the various
branches of government.
– Sets forth limitations on that power.
Sources of Law
• Statutory law
– Enacted by the United States Congress or
the legislature of a given state.
– Also includes ordinances of a City.
– Many statutory laws are Uniform Codes
adopted in the same form by all states.
Sources of Law
• Administrative law
– Rules, regulations, orders and decisions
created by government agencies.
– Creation of Agencies (Enabling
legislation)
Sources of Law
• Administrative law
– Rulemaking
Promulgated by federal, state, and local
regulatory agencies.
Published weekly in Federal Register and Texas
Register.
– Investigation and Enforcement
– Adjudication
– Oversight
Sources of Law
• Case Law (Common Law)
– Body of judicial decisions that interpret
and enforce the different laws and rule on
disputes between different parties.
– Precedent (“Stare Decisis”) - the
authority afforded to a prior judicial
decision in deciding subsequent disputes
involving the same or similar facts.
Common Law and Civil Law
• Common Law Systems
– Recognize the precedential value of prior
judicial decisions, which provide binding
authority in subsequent disputes.
– Doctrine of “stare decisis”
– Found in the United States, the United
Kingdom, and most of their former
colonies or possessions.
Law and Equity
• From their origin in the late-Eleventh
Century, common-law courts were typically
classified as either “courts of law” or
“courts of equity.”
Law and Equity
• Courts of Law were empowered only to
award wronged parties monetary
compensation for injuries or other losses.
• Courts of Equity were empowered to award
any manner of non-monetary relief, such as
ordering a person to do something or to
cease doing something.
• Merger of Courts in U.S. legal system.
Common Law and Civil Law
Civil Law Systems
Based primarily on statutory or codified law.
• Found in most of continental Europe,
Mexico and South America
The Legal System of Nations
Substantive vs. Procedural Law
• Substantive Law - creates, defines,
describes, and regulates legal rights and
obligations.
• Procedural Law - establishes the methods of
enforcing the rights established by
substantive law.
Civil and Criminal Law
• Civil Law - deals with defining and
enforcing the obligations of different
persons to one another.
• Criminal Law - deals with defining and
enforcing the obligations of persons to
society as a whole.
Constitutional Law and The
Commerce Clause
• Article I, Section 8 of the U.S. Constitution
empowers Congress “[t]o regulate
Commerce with foreign nations, and among
the several States, and with the Indian
Tribes.”
The Commerce Clause
• Interstate commerce is commerce
between two or more states.
• Intrastate commerce is commerce
within a single state.
The Commerce Clause
Since 1824 (Gibbons vs. Ogden at p. 12),
the Supreme Court has interpreted the
Commerce Clause to permit Congress to
regulate both interstate and intrastate
commerce that “substantially affects”
interstate commerce.
The Commerce Clause
•
•
•
•
What laws have been based on the
Commerce Clause?
Fair Labor Standards Act
Food and Drug Laws
Clean Air and Clean Water Acts
Civil Rights Acts (Heart of Atlanta Motel
V. U.S. p. 13 of book)
The Commerce Clause
Heart of Atlanta Motel vs United States
(case 1.1 in book at page 14)
similar to Katzenbach vs. McClung
• Upheld Civil Rights Acts
– Non-discrimination in public accommodations
– Non-discrimination in restaurants
The Bill of Rights
• The first 10 amendments to the U.S.
Constitution comprise the Bill of Rights—a
series of protections for individuals against
various types of government action.
The Bill of Rights
• Guarantees freedom of religion, speech, and
the press, the right to peaceably assemble,
and to petition the government. [Amend. 1]
Bill of Rights
• Restriction on commercial speech is valid
as long as the restriction:
-seeks to promote a substantial government
interest;
-directly advances that restriction; and
-goes no further than necessary to
accomplish its objective
The Bill of Rights
• Case involving state
law prohibiting the
“bad frog” making
obscene gesture on
label of beer vis-à-vis
freedom of speech
(page 19)
The Bill of Rights
• Guarantees the right to keep and bear arms.
[Amend. 2]
• Prohibits unreasonable searches and
seizures of persons or property. [Amend. 4]
The Bill of Rights
• Guarantees the rights to due process of law,
being free from self-incrimination, and
indictment by grand jury. [Amend. 5]
• Guarantees the rights to a speedy and public
(criminal) trial with the assistance of
counsel and to cross-examine witnesses and
to solicit favorable testimony. [Amend. 6]
The Bill of Rights
• Guarantees the right to trial by jury in both
criminal cases, [Amend. 6] and civil cases
involving more than $20 [Amend. 7]
• Prohibits excessive bail and fines and cruel
and unusual punishment. [Amend. 8]
Incorporation of Bill of Rights
• The protections afforded by the Bill of
Rights only apply to action by the federal
government.
• The U.S. Supreme Court applied them to
state and local governments by
incorporating the protections of the Bill of
Rights into the 14th Amendment.
Incorporation of Bill of Rights
• The Court used the 14th Amendment to
incorporate the Bill of Rights to apply to
states and local governments:
– “. . . . No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any State 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.”
Due Process of Law
Procedural Due Process
– Any government decision to take life, liberty,
or property must be made fairly
– Fairness requires:
• Notice
• Hearing
Rights to Privacy
Not Specifically Mentioned in Constitution
• Developed in 20th Century through Courts
using the 9th Amendment
– Griswold vs. Connecticut in 1965
• Also the Subject of Statutory Laws
– Family Educational Rights & Privacy Act
– Driver’s Privacy Protection Act
The Historical and Constitutional
Foundation
End of Chapter 1