CHAPTER 2 CONSTITUTIONAL RIGHTS. FOUNDATIONS OF THE U.S. CONSTITUTION Declaration of Independence: Adopted July 4, 1776, in Philadelphia, by delegates

C H A P T E R 2

CONSTITUTIONAL RIGHTS

FOUNDATIONS OF THE U.S. CONSTITUTION

• Declaration of Independence:• Adopted July 4, 1776, in

Philadelphia, by delegates from the 13 original colonies

• Altered 47 times before its adoption

• Developed to assert the desires of the colonists

• Developed their own government in order to enforce these rights and desires


• Articles of Confederation:• Charter that united the

colonies in 1781• Includes:

• One legislature: 2 to 7 reps from each state and one vote on issues

• Strict term limits: no more than 3 years in a 6 year period

• Legislative powers:• Declare war• Enter into treaties and alliances• Manage relations with Indian

nations• Coin money• Settle differences between states• Establish postal system• Appoint a Commander in Chief

• Includes Continued:• Common defense payment

came from common treasury funded by states dependent on value of land

• Paupers, vagabonds, fugitives from justice and slaves were not entitled to privileges and immunities of free citizens

• Legislation would require 2/3 vote for passage

• Amendments to Articles requires unanimous vote of the States


• U.S. Constitution:• Developed in a special

convention in Philadelphia, in 1787, to fix problems with Articles of Confederation

• Ratified by June 21, 1788 by 9 of the original 13 colonies; according to Article VII, that is all that is needed

• March 4, 1789: when America was slated to start operating under new terms

• Bill of Rights:• First ten amendments• Three English documents

that contributed to these individual rights:• Magna Carta• Petition of Right of 1628• Bill of Rights

• Amendments in U.S. Bill of Rights are the words of the founding fathers


• Amendment I: speech, religion, press, assembly, and to petition government

• Amendment II: to bear arms• Amendment III: no quartering of

soldiers • Amendment IV: appropriate

search and seizure • Amendment V: self

incrimination, double jeopardy, eminent domain, must have indictment to be tried unless war time

• Amendment VI: speedy and public trial, face accuser, and have assistance in defense

• Amendment VII: right to trial by jury

• Amendment VIII: no excessive fines, bail, or cruel and unusual punishment

• Amendment IX: you shall not be denied rights listed in Constitution

• Amendment X: powers not delegated in Constitution are reserved for states and/or the people


• Civil Rights: personal, natural rights of an individual

• First amendment: • Protects individual right to freedom of

religion• Wall of separation of church and state is

created• No national religion may be developed,

but all types will be tolerated

• Due Process of Law: a defendant over whom jurisdiction has been established must be provided adequate notice and a proper hearing

• Due process is covered in amendments 4-8

http://www.youtube.com/watch?v=-0lD37bq8YI


• Abolition of Slavery:• Originally tolerated by Constitution• Prior to 1808, it stated that

“migration or importation of such persons….” was allowed

• Provision in Article I counted slaves as 3/5 of a person for political purposes (appointing representatives)

• Article IV caused an escaped slave to be returned to the proper party/owner

• After Civil War, the Thirteenth Amendment was created to say “Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the U.S., or any place subject to their jurisdiction”

• Right to Vote:• Fifteenth Amendment gives freed

slaves the right to vote (cannot lose right based on race, color, or previous servitude)

• Poll tax: tax developed in the south that had to be paid in order to vote• Most former slaves could not afford this tax• Twenty-Fourth Amendment eliminated the

poll tax• Applied to elections as well as a violation of

the Fourteenth Amendment

• Denial by Gender:• Gender deliberately left out of Fifteenth

Amendment so no woman of any race could vote

• In 1920, the Nineteenth Amendment was passed to eliminate this injustice

• Suffragettes: woman who fought for the right to vote http://www.youtube.com/watch?v=Kvk1NZDFvZU

http://www.youtube.com/watch?v=Kvk1NZDFvZU

http://www.youtube.com/watch?v=Kvk1NZDFvZU


• Right to Vote:• Denial by Age:

• Protests during Vietnam War over being able to serve country at 18 but not be able to vote until age 21

• This was changed upon the adoption of the Twenty-Sixth Amendment in 1971

• Peripheral Rights:• Some rights are not directly

mentioned in the U.S. Constitution or the Bill of Rights

• Example: right to privacy• In the 1960s, the Supreme Court

acknowledged this as a separate right causing a reinforcement in several states

END OF SECTION 2-1

DIVISION AND BALANCE OF GOVERNMENTAL POWERS

• System of Checks and Balances: • Creates a balance of power between

three branches of government• Warren E. Burger, former Chief Justice of

U.S. Supreme Court, pointed out that when the Constitution was created, no country in the world provided a checks and balances

• Created by the 55 delegates called to draft the Constitution

• Branches of Government:• Legislative• Executive• Judicial

• Legislative Branch:• Lawmakers; heart of branch: Congress• Consists of two bodies:

• Senate: 2 members from each state no matter the population

• House of Representatives: number of seats is determined by the population of that state

• Allows for a continuation of checks and balances

• All bills for tax and spending must start in the House

• Majority vote is needed from both bodies to pass bill

• Powers:• House: impeach or accuse any civil officer of the U.S. of

treason, bribery, or other high crimes and misdemeanors• Senate: sole power on impeachment cases• Impeachment cases: criminal proceedings against a

government official for misconduct in office

• People have power to vote in their representation in Congress• House serves two-year terms (no term limit)• Senate serves six-year terms (no term limit)• President serves four-year terms (limit 2 terms)


• Executive Branch:• Headed by President and Vice

President• Voted into office indirectly by the people;

electoral college makes final decision• Political party: private organization of citizens

who select and promote candidates for election to public office

• Just because a candidate receives the popular vote, it does not mean they will the office

• Has veto power on laws proposed by the legislative branch

• Has power to appoint judiciary members with the advice and the consent of the Senate


• Judicial Branch:• Headed by Supreme Court of U.S.• Primary job: check on

constitutionality of statutes passed by the legislative branch and signed by the President

• May also determine if an action or decision exceeds the powers granted under the Constitution

• Changing the Constitution:• Amendment: change or

modification• Two ways to amend Constitution:

• Amendment proposed by 2/3 majority vote in both House and Senate

• Legislatures of 2/3 of all states call a convention of all states

• Must be ratified by the legislature of ¾ of the states or ratified by conventions of ¾ of the states


• U.S. Form of Government:• Democracy: every adult citizen

may vote on all issues• Republic (representative

democracy): voters select representatives to the three branches

• Sovereign power remains with people

• Bill of Rights developed in order to reduce fears of federal government becoming too powerful

• Amendment Nine takes care of the fears that those rights not listed will be taken from the people

• Sovereignty of the States:• Tenth Amendment acknowledges

state rights to govern citizens within their borders

• Sovereignty (in this situation): supreme political authority free from external control

• Article VI gives federal Constitution as supreme law, but each state has the supreme law in their borders on areas not covered in federal Constitution

• Examples of state-controlled areas:• Business law• Contract law• Criminal and tort law• Property and probate law• Domestic relations law


• Limiting States’ Powers:• The Fifth Amendment limits powers

of the federal government where the Fourteenth Amendment does the same for the states

• Shield of the Constitution is effective against abuse of power at both levels

• Statutes of both levels have also provided protection against the abuse of power by corporations and private individuals

• Powers of Federal Government:• Has duty to protect every state

from invasion• May raise and support for national

defense:• Armies• A Navy• Air Force

• Federal government may also develop:• Post offices• Coin money• Tax imports/exports• Sales tax• Income tax• Regulations for interstate commerce

• Many federal agencies have been developed to regulate business due to The Great Depression in the 1930s

END OF SECTION 2-2

THE INTERNET AND CONSTITUTIONAL RIGHTS

• Cyberlaw: law that governs the use of computers in e-commerce and , more generally, the Internet

• Issues that arise:• Jurisdiction• Trademarks• Copyrights• Contracts• Privacy• Obscenity• Defamation• Security of data• Crime

• Birth of the Internet:• Groundwork laid by Department of

Defense in the 1960s during Cold War

• Advanced Research Projects Agency (ARPA): tie together computers on various campuses and research centers on a network named ARPANET

• Idea: quickly share and chat about information and updates; soon spread internationally

• National Science Foundation (NSF) noticed the usefulness of this idea and, in the 1980s, created the Internet to expand the abilities of this network

• Was never intended for commercial (business) use until 1991


• World Wide Web (www):• Open to public in 1990 through

creation of hypertext• Hypertext: nonlinear format for the

publishing of information used to send e-mails, transfer mountains of data, and converse in chat rooms

• Access developed by Tim Berners-Lee, in his spare time, while working at the European Laboratory for Particle Physics • Vision: open access to as wide a body of

information as possible for every user• Browser: scanning program that utilizes the

attributes of hypertext to allow immediate access to any and all subjects and the background information necessary to understand them

• Never got a patent/copyright for this “brainchild”

• Directed the WWW Consortium: body for web development

• WWW Continued:• Hypertext Markup Language

(HTML): dictates the format of standard Web documents

• Hypertext Transfer Protocol (HTTP): provides the standard for exchanging files in the HTML format

• This format creates:• Multitude of connecting points• Multitude of paths and storehouses for

information• Shutdown one path/storehouse, more pop up

• Decentralization of the Internet makes it virtually impossible to legally control


• Legal Issues in Cyberspace• In a constant state of development, in many areas• Areas include:

• Jurisdiction• Contracts• Privacy• Obscenity• Defamation• Security of data• Trademarks/copyrights• Crime


• Jurisdiction:• Final answers can only be given

after a court responsible can be determined

• Issue: should the case be determined in the state where the case was filed or where the e-business is located

• Decision based on two considerations:• Laws of state where case was filed must allow

suits against non-resident defendants:• Most states have statutes that allow this• Statutes are called “Long-Arm Statutes” for the

long arm of the law• This varies from state to state and can cause a

case to be thrown out if the criteria of that state cannot be met

• Determine whether or not allowing the state or federal hearing of the case would be a violation of the due process requirements of the U.S. Constitution

• Jurisdiction Continued:• Establishment of jurisdiction by a

state over a nonresident defendant is only proper if they have “a substantial, continuous, and systemic presence” in the state or has “minimum contacts” with the state

• Usually the latter is used• Activity includes:

• Contracts• Product liability• Warranty


• International Jurisdiction:• International cases are governed by

international commercial law• Pre-e-commerce principle: a country

may exercise jurisdiction only over activities with a substantial effect on or in that country

• Recent cases indicate an abandonment of this rule or any unifying principle of jurisdiction

• Freedom of Speech:• Falls under our First Amendment

rights although not absolute; examples:• No yelling “fire” in crowded theater• No defamation of character

• Roth vs. United States:• Determined obscenity did not have

the protection of the First Amendment

• Reason: protection given to speech and press ensured exchange of ideas with social importance; obscenity does not have social importance

• Problem: determining what is and is not considered to be obscene; standards have varied throughout the years


• Miller vs. California:• A 1973 case where Supreme Court

toughened the standards by determining that questionable materials were to be judged by community standards

• Proved to be inadequate in the Internet environment; case law is filling the gaps

• The question of “which community?” is a large issue determined by case law that states that the recipient’s community is the determining factor

• Perspective NOT adopted by courts: use online community instead of physical location

• Latest decision: once material is said to be obscene, it can be regulated on all three levels of government


• Communications Decency Act:• CDA was passed in 1996• Purpose: control knowing

transmittal of obscene material through the Internet

• Statute provides:• Heavy fines• Imprisonment up to five years for first-time

violators• Higher penalties for subsequent offenses

• ACLU, and others, attacked the statute’s ambiguous term “indecent”, therefore, that part of the statute was deemed unconstitutional

• Section 230: grants immunity to third-party publishers on the Web

• Includes:• Blogs• Forums• Twitter quotes

• CDA Continued:• Immunity extends to:

• Libel (written defamation)• Invasion of privacy• Misappropriation• Negligence

• Section 230 does not stop criminal law or intellectual property claims against the publisher

• No matter what, the originator of material is fully liable


• Child Online Protection Act (COPA):• Passed in 1998• Required commercial sites to use up-to-date

methodology to restrict access to their sites containing material harmful to children

• Possible sentencing for violation of COPA:• Fine no more than $50,000• Prison no more than six months• Both options

• The idea of “harmful material” was unclear • This Act could also include such areas as:

• News publications• Libraries• Museums

• Act was struck down in 2009 by the U.S. Supreme Court


• The Right of Privacy Online:• Legitimized as a right in the late

1960s by the U.S. Supreme Court• Now based on a person’s

reasonable expectations as to whether his or her actions, communications, beliefs, and personal attributes deserve protection from those who would improperly use them

• Examples of when this is NOT true:• Using workplace technology• Facebook• Twitter• Flickr• Match

• A simple photo can show location, socioeconomic level, and other characteristics that an identity thief could use

• Continued:• Two numeric identifiers to keep

safe:• Social security number• Birthdate

• By giving city and state of birth, two researchers were able to predict the ss# of 5 million people born between 1989 and 2003 through determining the formula the government uses to assign this identifying number

• Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003: • Forbade lawsuits from being brought against

spammers under state laws• Lawsuits had been successful and costly to

spamming industry• Spamming: practice of sending unrequested

bulk e-mailings to hundreds of thousands of potential customers


• Continued:• Enforcement responsibility went to

the FTC• Act’s provisions:

• Spammer not use fraudulent transmission data

• Spammer not use misleading sender or subject lines

• Each e-mail must contain spammer’s postal address

• Each e-mail must have a clear unsubscribe mechanism

• Each e-mail must have an identification in the subject line for any sexually-oriented material made available in the message

• Spammers must have a process for “unsubscribers” within 10 days of receipt, either digital or by mail

• Refrain from harvesting e-mail addresses or using any automated means to randomly generate addresses

• Minimal government enforces causes this law to be broken on a regular basis

• Continued:• Address lists are typically generated

by popular Websites compiling the “cookies” left behind after the site is visited by the user• Cookie: packet of information containing the

Internet address and other personal information about a website visitor, such as buying patterns

• Current federal law prohibits the collection of this information through video and cable programs you rent/purchase; no such law exists to do the same for online users

• Contrary to the U.S., the European Union (EU) has passed a directive to all members to enact legislation to protect consumers against practices

• The EU directive also forbids members from passing information to those not in the union, forcing the U.S. to work with the EU to develop a list of precautions for international business

Documents

CHAPTER 2 CONSTITUTIONAL RIGHTS. FOUNDATIONS OF THE U.S. CONSTITUTION Declaration of Independence: Adopted July 4, 1776, in Philadelphia, by delegates