Lecture Notes 5 2022-09-18 21 - 16 - 48

Ch 05 – Constitutional Law
Essentials of Business Law, 10th edition
INSTRUCTOR’S MANUAL
Chapter 5 Constitutional Law
LESSON OVERVIEW
Chapter 5 describes several provisions of the U.S. Constitution and explains the various
ways in which these provisions impact individuals and businesses in the United States. In
this chapter we will first define the two types of legal power, express and implied powers,
which are conferred to the government by the Constitution and the states. Then we will
describe the process used to amend the Constitution and explain judicial review and the
doctrine of preemption. Next we will discuss the main provisions of the commerce
clause, the full faith and credit clause, and the supremacy clause. Chapter 5 also
discussed the first, second, fourth, fifth, eight, fourteenth, and sixteenth amendments.
CHAPTER OUTLINE
5-1
© 2019 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or
distribution in any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in
whole or part.
A. THE UNITED STATES CONSTITUTION

1. Constitutional Powers
2. Constitutional Amendments
3. Judicial Review
4. The Doctrine of Preemption
B. THE COMMERCE CLAUSE, THE FULL FAITH AND CREDIT CLAUSE,
AND THE SUPREMACY CLAUSE
1. Article 1, Section 8, Clause 3: The Commerce Clause
2. Article IV, Section 1: The Full Faith and Credit Clause
3. Article IV, Section 2: The Supremacy Clause
C. THE FIRST AMENDMENT
1. The Establishment and Free Exercise Clauses Relating to Religion
2. Freedom of Speech
3. Freedom of the Press
D. THE SECOND AMENDMENT
E. THE FOURTH AMENDMENT
F. THE FIFTH AMENDMENT
G. THE EIGHT AMENDMENT
H. THE FOURTEENTH AMENDMENT
I. THE SIXTEENTH AMENDMENT
J. CHAPTER SUMMARY
K. CHAPTER FIVE ASSESSMENT
1. Matching Legal Terms
2. True-False Quiz
3. Discussion Questions
4. Thinking Critically about the Law
5. Case Questions
6. Case Analysis
7. Legal Research
KEY TERMS
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whole or part.
Key terms are listed at the beginning of the chapter, posted in the student textbook
margins, and placed in boldface in the copy. They are listed here for your quick
reference.
 express powers  supremacy clause

 implied powers  probable cause
 Bill of Rights  procedural due process
 judicial review  substantive due process
 doctrine of preemption  rational basis
 commerce clause  intermediate scrutiny
 full faith and credit clause  strict scrutiny
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whole or part.
LEARNING OUTCOMES
The chapter Learning Outcomes will help you and the students discover the concepts and
information that should be understood upon completion of the chapter. You may want to
access the PowerPoint (PPT) slides for Chapter 5 when you begin the study of the
chapter and discuss each Learning Outcome. Each Learning Outcome will be covered
separately in the instructor notes, but they are shown here in total as an overview of the
sections being presented in Chapter 5. These slides should be used to reinforce the main
points of the lecture.
After completing this chapter, the students will be able to
1. Explain the difference between express and implied powers; describe the process
used to amend the U.S. Constitution; and explain judicial review and the doctrine of
preemption.
2. Discuss the main provisions of the commerce clause, the full faith and credit clause,
and the supremacy clause.
3. Describe three provisions of the First Amendment.
4. Discuss the current state of constitutional law with respect to the Second Amendment.
Describe the requirement of probable cause under the Fourth Amendment.
5. Identify and explain four protections provided by the Fifth Amendment.
6. Provide examples of cases that are addressed by the Eighth Amendment.
7. Explain the due process and equal protection clauses of the Fourteenth Amendment.
8. Discuss how the Internal Revenue Service administers the collection of income taxes
pursuant to the Sixteenth Amendment.
LECTURE OUTLINE
A. THE UNITED STATES CONSTITUTION

Every federal statute enacted by Congress, every state statute enacted by state
legislatures, every ordinance and code enacted by local municipalities, every
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whole or part.
administrative law and decision, and every court decision in every case in every
jurisdiction—each of these must be consistent with the United States Constitution,
which is the basis for all American law. The federal Constitution and states confer
two types of powers on the governments: express powers stated specifically in
the federal Constitution and implied powers that have arisen as a result of
interpretation of the express powers by courts.
The Constitution can be amended, and the first 10 amendments are called the Bill
of Rights. Federal and state courts can decide whether enacted laws violate the
Constitution through judicial review. The doctrine of preemption is a principle
that states that when laws are inconsistent with the federal law, the federal law
must be followed.
B. THE COMMERCE CLAUSE, THE FULL FAITH AND CREDIT CLAUSE,

AND THE SUPREMACY CLAUSE
The Constitution is divided into major divisions, called articles; subdivisions,
called sections; and in some cases sub-subdivisions, called clauses. Three of these
particular clauses that have a specific impact on businesses are the commerce
clause, the full faith and credit clause, and the supremacy clause.
1. Article 1, Section 8, Clause 3: The Commerce Clause
This clause grants Congress the power to regulate commerce among states
in order to prevent the restriction of trade activity. Courts have held that
the term commerce, as used in the Constitution, is defined as the
movement or exchange of persons, goods, or information between states.
2. Article IV, Section 1: The Full Faith and Credit Clause

This clause mandates that each state respect and enforce both the
judgments awarded by courts in other states, and the statutes and case law
of other states.
3. Article IV, Section 2: The Supremacy Clause
This clause, closely tied to the doctrine of preemption, requires state
judges to follow federal law in the event of a conflict with state law.
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whole or part.
According to the supremacy clause, a Supreme Court ruling that involves

a constitutional issue is binding on state courts.
C. THE FIRST AMENDMENT

1. The Establishment and Free Exercise Clauses Relating to Religion
The First Amendment right to freedom of religion is divided into two
interconnected pieces, referred to as the establishment clause and the free
exercise clause.
The establishment clause makes it unconstitutional for government to
recognize a single national religion, or even to create policies or practices
that favor one religion over another. The free exercise clause requires that
government not interfere with an individual’s practicing the religion of his
or her choice.
2. Freedom of Speech
The First Amendment’s freedom of speech clause gives Americans a
fundamental right: the right to freedom of political or religious speech—a
right that should be guarded most zealously when the speech is unpopular,
upsetting, ignorant, or even anger-provoking. Speech that is sexist, racist,
ageist, or otherwise offensive is also protected. Similarly, the act of
burning the American flag is considered protected speech, and laws
prohibiting such acts are unconstitutional.
All speech, however, is not protected under the First Amendment. The
following are examples of speech that may constitutionally be limited or
silenced: speech that incites imminent danger; child pornography; speech
that is legally obscene; speech that threatens physical harm; speech that is
defamatory, including both slander and interference with works protected
by trademark, patent, or copyright law; and commercial speech such as
deceptive advertising.
3. Freedom of the Press
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whole or part.
It would certainly be unconstitutional for a state or municipality to pass a

law limiting what a journalist could write or say about a political candidate
or issue.
D. THE SECOND AMENDMENT
The Second Amendment states, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.”
E. THE FOURTH AMENDMENT
The Fourth Amendment says this: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” It requires that police officers
and other government officials (but not private citizens) have probable cause to
be able to conduct a personal or property search.
F. THE FIFTH AMENDMENT
The Fifth Amendment does not allow a person to be put in double jeopardy of
life or limb or a court to try a criminal defendant more than once for the same
offense; it gives individuals the right to refuse to self-incriminate (to divulge
information that could later be used against them in a criminal proceeding); it
requires that all persons be granted both procedural and substantive due
process; and it give the government the right of eminent domain in that it
permits the government to take private property, both real and personal, for a
public purpose so long as the owner receives just compensation.
G. THE EIGHTH AMENDMENT
The Eighth Amendment restricts both the severity and the types of punishments
that may be imposed by federal and state governments. In addition, it mandates
that people accused or convicted of crimes are not to be subject to excessive bail;
and finally, it prevents the government from imposing an unjustly harsh fine on a
person convicted of a crime. If a fine is found to be grossly disproportionate to the
crime committed, the fine may be overturned.
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whole or part.
H. THE FOURTEENTH AMENDMENT

The Fourteenth Amendment states, “No State shall . . . 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.”
The Fourteenth Amendment also provides that when states pass laws they must
treat all individuals equally; thus laws that do not treat all people equally are
unconstitutional unless the state can pass the following test:
1. The rational basis test: a standard that measures whether the legislature had
a reasonable, and not an arbitrary, basis for enacting a particular statute.
2. The intermediate scrutiny test: a standard that measures whether a particular
statute is substantially related to an important government objective.
3. The strict scrutiny test: a standard that measures whether the legislature had
a compelling interest for enacting a particular statute.
I. THE SIXTEENTH AMENDMENT
The Sixteenth Amendment reads as follows: “The Congress shall have power to
lay and collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard to any census or
enumeration.”
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whole or part.
INSTRUCTOR NOTES
A resulting answer or explanation is provided here for each Learning Outcome in Chapter
LO1. Explain the difference between express and implied powers; describe the
process used to amend the U.S. Constitution; and explain judicial review and
the doctrine of preemption.
Express powers are specifically stated in the federal Constitution and implied
powers that have arisen as a result of interpretation of the express powers by
courts. The first 10 amendments to the Constitution are called the Bill of Rights.
Federal and state courts can decide whether enacted laws violate the Constitution
through judicial review. The doctrine of preemption is a principle that states that
when laws are inconsistent with the federal law, the federal law must be followed.
LO2. Discuss the main provisions of the commerce clause, the full faith and credit
clause, and the supremacy clause.
The commerce clause grants Congress the power to regulate commerce among
states in order to prevent the restriction of trade activity. The full faith and credit
clause mandates that each state respect and enforce both the judgments awarded
by courts in other states, and the statutes and case law of other states; and the
supremacy clause requires state judges to follow federal law in the event of a
conflict with state law.
LO3. Describe three provisions of the First Amendment.

The First Amendment right to freedom of religion is divided into two
interconnected pieces, referred to as the establishment clause and the free exercise
clause. Under the same amendment, the freedom of speech clause gives
Americans a fundamental right—the right to freedom of political or religious
speech. All speech, however, is not protected under the First Amendment. The
freedom of the press provision protects journalists from unconstitutional laws that
would limit what they can write or say what about a political candidate or issue.
LO4. Discuss the current state of constitutional law with respect to the Second
Amendment.
The Second Amendment states, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be
infringed.”
LO5. Describe the requirement of probable cause under the Fourth Amendment.
The Fourth Amendment says this: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
5-9
whole or part.
searched, and the persons or things to be seized.” It requires that police officers
and other government officials (but not private citizens) have probable cause to be
able to conduct a personal or property search.
LO6. Identify and explain four protections provided by the Fifth Amendment.
The Fifth Amendment does not allow a person to be put in double jeopardy of life
or limb; it gives individuals the right to refuse to self-incriminate; it requires that
all persons be granted both procedural and substantive due process; and it give the
government the right of eminent domain.
LO7. Provide examples of cases that are addressed by the Eighth Amendment.
The Eighth Amendment restricts both the severity and the types of punishments
that may be imposed by federal and state governments. In addition, it mandates
that people accused or convicted of crimes are not to be subject to excessive bail;
and finally, it prevents the government from imposing an unjustly harsh fine on a
person convicted of a crime. If a fine is found to be grossly disproportionate to the
crime committed, the fine may be overturned.
LO8. Explain the due process and equal protection clauses of the Fourteenth
Amendment.
Under the Fourteenth Amendment, no person can be deprived of life, liberty, or
property without due process of law; nor can a person be denied the equal
protection of the laws. When states pass laws they must treat all individuals
equally; thus laws that do not treat all people equally are unconstitutional unless
the state can pass one of the following tests as applicable: the rational basis test,
the intermediate scrutiny test, and/or the strict scrutiny test.
LO9. Discuss how the Internal Revenue Service administers the collection of income
taxes pursuant to the Sixteenth Amendment.
The Sixteenth Amendment reads as follows: “The Congress shall have power to
lay and collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard to any census or
enumeration.”
Chapter 5 Assessment Answers
Matching Key Terms
1. d 4. i 7. j 10. b 13. a
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whole or part.
2. h 5. k 8. l 11. o 14. m
3. g 6. c 9. n 12. f 15. e
True/False Quiz
16. F 19. F 22. F 25. T
17. T 20. F 23. T
18. T 21. T 24. F
Discussion Questions
26. Each amendment must be proposed by a two-thirds vote of Congress and ratified,
or approved, by the legislatures of three-fourths of our 50 states.
27. Examples of speech that may constitutionally be limited or silenced include
speech that incites imminent danger; child pornography; speech that is legally
obscene; speech that threatens physical harm; speech that is defamatory, including
both slander and libel; interference with works protected by trademark, patent, or
copyright law; and commercial speech, such as deceptive advertising.
28. Examples of laws that are permissible under the Second Amendment include
certain laws that prohibit the possession of firearms by felons or persons who are
mentally ill; laws forbidding the carrying of firearms in sensitive places, such as
government buildings and schools; and laws imposing conditions and
qualifications on the commercial sale of arms.
29. Examples of unreasonable searches and seizures include a detention of longer
than 48 hours after a criminal arrest; a nonconsensual extraction of blood; and the
gathering of fingerprint evidence in certain circumstances.
30. If a law places restrictions on economic or property interests, or if a law
discriminates on a basis other than race, sex, national origin, or related categories,
the state must show that the law passes the rational basis test. If the law
discriminates on the basis of race, sex, national origin, or related categories, the
state must show that the law passes the strict scrutiny test.
31. Examples of cases covered under the Eighth Amendment include (1) a person
convicted of armed robbery is sentenced to death; (2) a person convicted of
shoplifting is sentenced to life in prison; (3) a minor is sentenced to life in prison
for stealing a car; (4) a person convicted of assault and battery is sentenced to
death; (5) a person convicted of any crime is sentenced to being burned at the
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whole or part.
stake; (6) a person accused or convicted of a crime is subject to excessive bail;

and (7) a person convicted of a crime is subject to an unjustly harsh fine.
Thinking Critically about the Law

32. While each state has the power and the right to pass its own laws, they are all part
of the United States. Therefore, they must respect and enforce both the judgments
awarded by courts in other states, and the statutes and case law of other states.
33. The right to freedom of speech should be guarded most zealously when the
speech is unpopular, upsetting, ignorant, or anger-provoking.
34. While a number of lawyers and historians have promoted the view that the term
"to bear arms" applies only to the military use of arms, most courts now agree that
this right also applies to private citizens. Opinions may vary.
35. The Supreme Court has never ruled that the Eighth Amendment completely
prohibits the use of the death penalty, although it is possible that the Court might
rule this to be the case at some future time.
36. While answers may vary, only a court can decide that a law is contrary to the
Constitution. The process of deciding whether a law is contrary to the
Constitution is known as judicial review.
Case Questions
37. a. Y b. N c. N
38. a. Y b. Y c. Y
39. a. Y b. N c. N
Case Analysis
40. Principle of Law: A search occurs only when a person expects privacy in the
thing searched and society believes that expectation is reasonable.
Decision: Since the device had been placed outside the booth, the court rejected
the contention that the recordings had been obtained in violation of the Fourth
Amendment
41. Principle of Law: An Eighth Amendment violation may not be predicated on
exposure to any risk of serious harm; the risk must be substantial.
Decision: Because a jury could not reasonably conclude that serious injury is a
common or likely occurrence in tackle football games, this was not cruel and
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whole or part.
unusual punishment.
42. Principle of Law: The Sixteenth Amendment granted the federal government
power to impose and collect a tax on individuals’ incomes.
Decision: The court found Stern’s position to be “absolutely devoid of merit”

because the Supreme Court has consistently interpreted federal income tax to be
allowed under the Sixteenth Amendment.
Legal Research
43. Answers will vary.
44. Answers will vary.
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whole or part.
BONUS ACTIVITIES
 Ask students to read newspapers, either online or in print version, and find articles
critical of the federal government. Discuss why and how such articles are
protected under the First Amendment.
 Direct a class discussion on how federal income taxes, allowed under the
Sixteenth Amendment, can unfairly impact persons who are less wealthy than
others.
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whole or part.

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Ch 05 – Constitutional Law

Essentials of Business Law, 10th edition

Chapter 5 Constitutional Law

A. THE UNITED STATES CONSTITUTION

 express powers  supremacy clause

points of the lecture.

After completing this chapter, the students will be able to

A. THE UNITED STATES CONSTITUTION

B. THE COMMERCE CLAUSE, THE FULL FAITH AND CREDIT CLAUSE,

2. Article IV, Section 1: The Full Faith and Credit Clause

According to the supremacy clause, a Supreme Court ruling that involves

C. THE FIRST AMENDMENT

It would certainly be unconstitutional for a state or municipality to pass a

H. THE FOURTEENTH AMENDMENT

LO3. Describe three provisions of the First Amendment.

Chapter 5 Assessment Answers

Matching Key Terms

16. F 19. F 22. F 25. T

17. T 20. F 23. T

18. T 21. T 24. F

stake; (6) a person accused or convicted of a crime is subject to excessive bail;

Thinking Critically about the Law

Decision: The court found Stern’s position to be “absolutely devoid of merit”

44. Answers will vary.

protected under the First Amendment.

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