Chapter Three:Constitutional Law

1. Functions

Constitutions serve two general functions. First, they set up the structure of government, allocating power among its various branches and subdivisions. Second, they prevent government from taking certain actions—especially actions that restrict individual or, as suggested by the Coors scenario with which this chapter opened, corporate rights. This chapter examines the U.S. Constitution's performance of these functions and considers how that performance affects government regulation of business.

2. An overview of the U.S. Constitution

The U.S. Constitution exhibits the principle of separation of powers by giving distinct powers to Congress, the president, and the federal courts. Article I of the Constitution establishes a Congress composed of a Senate and a House of Representatives, gives it sole power to legislate at the federal level, and sets out rules for the enactment of legislation. Article I, section 8 also defines when Congress can make law by stating its legislative powers. Three of those powers—the commerce, tax, and spending powers—are discussed later in the chapter.

Article II gives the president the executive power—the power to execute or enforce the laws passed by Congress. Section 2 of that article lists other presidential powers, including the powers to command the nation's armed forces and to make treaties. Article III gives the judicial power of the United States to the Supreme Court and the other federal courts later established by Congress. Article III also determines the types of cases the federal courts may decide.

Besides creating a separation of powers, Articles I, II, and III set up a system of checks and balances among Congress, the president, and the courts. For example, Article I gives the president the power to veto legislation passed by Congress, but allows Congress to override such a veto by a two-thirds vote of each House. Article I and Article II provide that the president, the vice president, and other federal officials may be impeached and removed from office by a two-thirds vote of the Senate. Article II states that treaties made by the president must be approved by a two-thirds vote of the Senate. Article III gives Congress some control over the Supreme Court's appellate jurisdiction.

The Constitution recognizes the principle of federalism in the way it structures power relations between the federal government and the states. After Article I lists the powers Congress holds, a later section in Article I lists certain powers that Congress cannot exercise. The Tenth Amendment provides that those powers the Constitution neither gives to the federal government nor denies to the states are reserved to the states or the people.

Article VI, however, makes the Constitution, laws, and treaties of the United States supreme over state law. As will be seen, this principle of federal supremacy may cause federal statutes to preempt inconsistent state laws. The Constitution also puts limits on the states' lawmaking powers. One example is Article I's command that states shall not pass laws impairing the obligation of contracts.

Article V sets forth the procedures for amending the Constitution. The Constitution has been amended 27 times. The first 10 of these amendments comprise the Bill of Rights. Although the rights guaranteed in the first 10 amendments once restricted only federal government action, most of them now limit state government action as well. As you will learn, this results from their incorporation within the Due Process Clause of the Fourteenth Amendment.

Case Study:KENNEDY V. LOUISIANA

128 S.Ct.2641 United States Supreme Court,2008

Facts:Patrick Kennedy raped his 8-year-old stepdaughter, referred to as L.H. He then phoned 911 and reported that two neighborhood boys had committed the crime. A forensic expert testified that L. H.'s physical injuries were the most severe he had ever witnessed from a sexual assault. The jury also heard evidence that the defendant had raped another 8-year-old. Kennedy was convicted of aggravated rape, because the victim was under 12 years of age.

The jury voted to sentence Kennedy to death, which was permitted by the Louisiana statute. The state supreme court affirmed the death sentence, and Kennedy appealed to the United States Supreme Court. He argued that the Louisiana statute was unconstitutional. Kennedy claimed that capital punishment was out of proportion to rape and violated the Eighth Amendment.

Six states had passed laws permitting capital punishment for child rape, though the remaining 44 states had not. Louisiana argued that the statute did not violate the amendment.

You Be the Judge:Did the Louisiana statute violate the Constitution by permitting the death penalty in a case of child rape? Is it proper for the Supreme Court to decide this issue?

Argument for Kennedy:A national consensus opposes the death penalty for any crime other than murder. Capital punishment exists in 36 states, but only 6 of those states allow it for child rape. No state has executed a defendant for rape since 1964.

Also, a young child may be an unreliable witness for a case. It is the responsibility of this court to nullify such a harmful law.

Argument for Louisiana:Child rape is one of the most horrifying of crimes. The defendant damages a young person, destroys her childhood, and terrifies a community. Only the severest of penalties is sufficient.

Kennedy argues that capital punishment might be bad policy—but that is a question for voters and legislatures, not for courts. Obviously, the citizens of Louisiana favor this law. The court should leave this issue to the citizens. That is how a democracy is intended to function.

Exercise one:Cloze

Patrick Kennedy（killed/raped）his 8-year-old stepdaughter, referred to as L.H. He then phoned 911 and reported that two neighborhood boys had committed the crime. A（policeman/forensic expert） testified that L.H.'s physical injuries were the most severe he had ever witnessed from a（sexual assault/murder）. The jury also heard（evidence/stories）that the defendant had raped another 8-year-old. Kennedy was convicted of aggravated rape, because the victim was （above/under）12 years of age.

Exercise two:translation

1．美国政府由三个不同的且独立的部门组成：联邦司法，国会和执法部门。

2．他强奸了他8岁的继女，并被判处死刑。

3．被告摧残了一个幼女，毁灭了她的童年，惊恐了邻里。只有最严重的惩罚才充分。

4．州最高院维持死刑判决，被告上诉到美国最高院。

Exercise three:MULTIPLE CHOICE QUESTIONS

5. More American law comes from one country than from any other. Which country?

A. France B. England C. Germany D. Spain E. Canada

6. The European Union sometimes struggles to create a unified policy that works for all its member countries, while permitting each nation to maintain adequate power over its own affairs. With what legal principle are they struggling?

A. Jurisprudence B. Precedent C. Strict construction

D. Federalism

7. Judges use precedent to create what kind of law?

A. Common law B. Statutes C. National law D. Local law

8. Rebecca leaves a store at night and enters the store's parking lot. Before she can reach her car, she is robbed at gunpoint. Rebecca sues the store. When a court decides whether the store had a duty to prevent this harm, what issue will the judges focus on?

A. Federalism B. Equity C. Legal realism D. Morality

E. Foreseeability