TEST BANK for American Constitutional Law: Introductory Essays and Selected Cases 17th Edition

ONE

Jurisdiction and Organization of the Federal Courts Multiple Choice 1. Article III of the Constitution provides that the Supreme Court “. . . shall have _____ Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the _____ shall make.” a. original; Congress *b. appellate; Congress c. original; Supreme Court d. appellate; Supreme Court 2. Under Article III, _____ controls the jurisdiction, both original and appellate, of the lower federal courts. a. the Supreme Court *b. the Congress c. the president d. the Justice Department 3. Article II enumerates specific powers granted to the president. These include the authority to _____. *a. nominate federal judges b. suspend writs of habeas corpus c. withhold privileged communications d. all of the above 4. The fundamental threshold question that must be addressed in any lawsuit is that of _____. a. attainder b. ex post facto c. certiorari *d. jurisdiction 5. After determining that a real case or controversy exists, a federal court must ascertain whether the party initiating the litigation has _____. a. jurisdiction b. a cause of action *c. standing d. an injunction

6. A case is considered _____ if the issues that gave rise to it have been resolved or otherwise disappeared. a. unripe b. exhausted *c. moot d. hypothetical 7. An appeal from a decision by a U.S. District Court in California is typically heard by the U.S. Court of Appeals for the _____. *a. Ninth Circuit b. First Circuit c. Third Circuit d. Federal Circuit 8. An appeal in a patent case from a U.S. district court in New Jersey will typically be heard by the U. S. Court of Appeals for the _____. a. Third Circuit *b. Federal Circuit c. Fifth Circuit d. District of Columbia Circuit.

9. An appeal from a ruling by the Court of Appeals of Veterans Claims is typically heard by _____. a. The U.S. Court of Appeals for the District of Columbia Circuit b. The U.S. Court of Appeals for the Federal Circuit c. The Virginia Supreme Court *d. The U.S. Court of Appeals for the Federal Circuit 10. A case appealed from the U.S. District Court in Guam will typically be heard by _____. a. The Supreme Court of California b. The Court of Appeals for the Eighth Circuit *c. The Court of Appeals for the Ninth Circuit d. The U.S. Court of Appeals for the Federal Circuit 11. Search warrants in the federal court system are ordinarily issued by _____. a. U.S. district judges b. a law clerk c. judges on the closest U.S. court of appeals *d. U. S. magistrate judges 12. Which of the following is usually included within the list of Ashwander Rules? a. The Court will not formulate a rule of law broader than the facts of the case require. b. If possible, the Court will dispose of a case on nonconstitutional grounds.

c. The Court will not pass upon the validity of a statute on complaint of one who fails to show injury to person or property. *d. All of the above 13. Which of the following is not usually included within the list of Ashwander Rules? a. The Court will not formulate a rule of law broader than the facts of the case require. b. If possible, the Court will dispose of a case on nonconstitutional grounds. c. The Court will not pass upon the validity of a statute on complaint of one who fails to show injury to person or property. *d. Whenever possible, the Court will protect an individual’s constitutional rights.

14. Congress has specified that certain cases in the U. S. District Courts be heard and decided by a panel of three judges instead of the usual single judge sitting alone. What is the special option available to the losing party in a decision by such a three-judge panel that is not available to the losing party in the great bulk of district court cases that are routinely decided by a single judge? a. All court fees are waived. b. The case may enjoy expedited review by one of the courts of appeals. *c. Direct appeal to the Supreme Court. d. all of the above.

Essay Questions 1. Losing litigants in the lower courts often say that they will “take this all the way to the United States Supreme Court.” Why should such statements be regarded more as threats, not promises?

2. What do the data about the Supreme Court’s caseload suggest about the importance of state and lower federal courts in helping to shape American constitutional law?

3. How can “threshold questions” such as standing be crucial in the outcome of a constitutional case?

4. What are the Ashwander rules? Do they expand or contract judicial power?

Explain.

5. What is the difference between a judicial activist and a judicial restraintist?

6. What are the principal steps in the process by which the Supreme Court decides cases?

7. What is the role of the Solicitor General of the United States in the work of the Supreme Court?

8. What is the role of amici curiae in the work of the Supreme Court?

9. What is the significance at the Supreme Court of what is informally called “the rule of four”?

TWO

The Constitution, the Supreme Court, and Judicial Review Multiple Choice 1. In Federalist, No. 78, _____ argued that the judiciary would be the “least dangerous branch.” a. James Madison b. John Jay c. Benjamin Franklin *d. Alexander Hamilton 2. Who won the case of Marbury v. Madison? a. Alexander Hamilton b. John Marshall c. William Marbury *d. James Madison 3. In Scott v. Sandford, on what part of the Constitution did Chief Justice Taney rely in invalidating the Missouri Compromise? _____ a. Article I b. Article IV c. First Amendment *d. Fifth Amendment 4. Who wrote the opinion of the Court in Ex parte McCardle? _____ a. Justice Grier b. Chief Justice Marshall c. Chief Justice Taney *d. Chief Justice Chase 5. William McCardle was a _____. a. federal judge b. a Supreme Court justice c. an ex-Confederate general *d. a newspaper editor 6. Section 5 of the Fourteenth Amendment grants Congress the authority to legislate in the field of _____. a. eminent domain b. criminal law

*c. civil rights d. international relations 7. City of Boerne v. Flores concerned _____. a. criminal justice *b. the Religious Freedom Restoration Act c. highway construction d. the right to vote 8. Robert Yates was _____. a. signer of the Declaration of independence *b. author of the Letters of Brutus c. Alexander Hamilton’s uncle d. a Virginian 9. Robert Yates believed _____. *a. that the Supreme Court would practice judicial review b. that the Constitution protected the rights of the states c. that the meaning of the Constitution was fixed d. that judges could be trusted to decide cases correctly 10. John Marshall was named Chief Justice by _____. a. George Washington *b. John Adams c. Thomas Jefferson d. James Madison Essay Questions 1. Define the power of judicial review as exercised by courts in the United States.

2. Explain and evaluate Chief Justice Marshall’s reasoning in support of the Supreme Court’s assumption of the power of judicial review in Marbury v.

Madison (1803). Focus not on the facts of the case, but rather on the assumption of judicial review (both in this case and in principle).

3. Summarize the major points in Justice Gibson’s critique of Chief Justice Marshall’s position in Eakin v. Raub (1825).

4. Aside from the basic arguments, explore the implications of judicial review as a major component of American government.

5. What are the advantages and disadvantages of a reliance on judicial review?

Support your conclusions.

6. On what basis did Justice Gibson believe that state courts were authorized by the U.S. Constitution to exercise judicial review?

7. Among the several approaches to constitutional interpretation, which ones were used in Scott v. Sandford? Explain.

8. Among the several approaches to constitutional interpretation, which ones were used in Marbury v. Madison? Explain.

9. It is commonly agreed that three questions were embedded within the Dred Scott Case (1857) when it reached the Supreme Court. Had the majority confined its attention to only two of these questions, the Court could have decided the case without reaching what proved to be the most explosive question that the case placed on the table. Explain.

10. Identify and explain the two strongest arguments you believe Chief Justice Marshall makes in Marbury v. Madison (1803) in defense of judicial review.

Then, identify and explain two counter arguments advanced in Eakin v. Raub (1825) by Justice Gibson against those points in his critique of Marshall's position.

11. Marbury v. Madison and Scott v. Sandford, separated by 54 years, were the first and second occasions when the Supreme Court invalidated an act of Congress. In the opinion of many constitutional scholars, the Dred Scott decision seems to signify or embody a significant expansion of judicial review, when compared to Marbury. Do you agree? Support your answer with at least three points.

12. In the “Letters of Brutus,” New York’s Robert Yates laid out his views on what could be expected from the proposed Supreme Court of the United States that would become part of the new national government if the Constitution were ratified. In what way or ways were Yates’s views confirmed by the Supreme Court’s decision in Chisholm v. Georgia (1793) and Marbury v. Madison (1803) and in the circumstances surrounding those cases? In what way or ways were Yates’s views refuted by those decisions and in the circumstances surrounding those cases?

13. From 1803 until 1857, Marbury v. Madison (1803) and Scott v. Sandford (1857) were the only instances in which the Supreme Court invalidated an act of Congress. Yet, as examples of judicial review, the two decisions appear vastly different. Identify and explain two ways in which this might be so.

14. According to John Marshall in Marbury v. Madison (1803), to deny the Supreme Court the power of judicial review “would subvert the very foundation of all written constitutions …” and “reduce to nothing what we have deemed the greatest improvement on political institutions, a written constitution.” What point is Marshall making here in defense of judicial review? Explain.

15. What does Pennsylvania’s Justice Gibson in Eakin v. Raub (1825) offer by way of rebuttal for this part of Marshall’s Marbury opinion? Explain. a. Justice James Wilson’s opinion in Chisholm v. Georgia (1793) describes the case as one “of uncommon magnitude.” What gave to the case its “uncommon magnitude”? Discuss. b. Would the Court’s decision in Chisholm have surprised New York’s Judge Robert Yates? Why? 16. The introductory essay for Chapter Two contains a section that discusses “Approaches to Constitutional Interpretation.” The section presents four such approaches. What are these four approaches? Explain how each one is illustrated by a Supreme Court opinion (majority, dissenting or concurring) that has been assigned thus far in the course.

17. Chief Justice Marshall’s opinion in Marbury v. Madison contains the following two sentences: “The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.” Discuss.

18. Any prospective Supreme Court justice testifying before the Senate Judiciary Committee will profess an intention to “interpret the Constitution” if confirmed.

A revealing follow-up question would be to ask the nominee what precisely is meant by “the Constitution.” Drawing examples from three cases you have studied in this course, write an essay illustrating how justices may differ over “the Constitution” that is being interpreted. Your examples should illuminate at least three different understandings of what “the Constitution” may be.

19. In Ashwander v. TVA (1936), Justice Brandeis listed a series of restrictions that, historically, the Supreme Court has imposed on itself to avoid confronting issues unnecessarily and to avoid injecting itself unnecessarily in political controversy.

The fourth such limitation on Brandeis’s list advises: “If possible, the Court will dispose of a case on nonconstitutional grounds.” Discuss Scott v. Sandford (1857) in light of Brandeis’s later admonition.

20. In Eakin v. Raub (1825), Justice John Bannister Gibson of the Supreme Court of Pennsylvania wrote what many regard as the most effective rebuttal to Chief Justice John Marshall’s defense of judicial review in Marbury v. Madison (1803).

Identify, explain, and assess three of the points Gibson makes against Marshall’s position.

21. Supreme Court opinions in constitutional cases vary considerably in their use of, and reliance upon, the text (i.e., the words) of the Constitution. Sometimes, the text seems to be very important in the resolution of the case, while at other times the text seems to play a minor role or is nearly invisible. From the cases assigned for reading thus far in the course, select two that demonstrate this variance: One case where an opinion (majority or separate) seems largely “text-driven” and another case where an opinion (majority or separate) does not. In an essay, demonstrate how the presence or absence of “text” tends to shape the result advocated by each opinion. (You may also use a single case for this essay, if the variance is demonstrated by different opinions in the same case.)

22. Imagine that you are one of Chief Justice John Marshall’s colleagues on the United States Supreme Court in 1803. In conference Marshall’s explains how Marbury v. Madison should be decided. You disagree. “Perhaps section 13 of the 1789 Judiciary Act is not in accordance with the Constitution,” you say, “but in any event I do not believe that this Court has the authority to invalidate an act of Congress. We’ve never done that.” A week later, Marshall shows you his opinion of the Court in Marbury, and you decide to write a dissenting opinion. What do you say in response to what Marshall has written?

THREE

Congress and the President Multiple Choice 1. Article II enumerates specific powers granted to the president. These include the authority to _____. *a. nominate federal judges b. suspend writs of habeas corpus c. withhold privileged communications d. all of the above 2. The _____ theory holds that the president’s constitutional power extends to anything not expressly forbidden, so long as it serves the public interest, and does not conflict with existing legislation. a. literalist/limiting b. constitutional *c. stewardship d. originalist 3. The president most closely identified with the constitutional theory of the presidency is ____. *a. Taft b. George Washington c. Theodore Roosevelt d. Lyndon Johnson 4. The case of _____ stemmed from a treaty between the United States and Canada designed to protect migratory birds. *a. Missouri v. Holland (1920) b. United States v. Belmont (1937) c. United States v. Pink (1942) d. Goldwater v. Carter (1979) 5. In _____ the Supreme Court rejected the president’s inherent power to authorize military tribunals to try civilians where civilian courts were open and fully operating. a. Goldwater v. Carter (1979) *b. Ex Parte Milligan (1868) c. Myers v. United States (1926) d. Ex Parte Merryman (1861) 6. The 1973 War Powers Act (or Resolution) was an attempt to _____.

a. enhance presidential war-making powers *b. increase congressional control over presidential war-making activities c. limit congressional power in foreign policy d. improve the ability of Congress to respond to a nuclear crisis 7. The Supreme Court is least likely to sustain the exercise of executive authority when the president is acting _____. a. as commander-in-chief b. on the basis of power delegated by Congress c. in the negotiation of a treaty *d. without statutory authority in the negotiation of domestic policy 8. In Youngstown Sheet and Tube Co. v. Sawyer (1952), the Supreme Court _____. a. upheld the president’s power to seize the steel mill in national emergencies b. held that Congress could not authorize the president to seize the steel mill in national emergencies *c. held that the president’s seizure of the steel mill during a time of national emergency was unconstitutional d. held that the president was obligated, under his responsibility to “take Care that the Laws be faithfully executed,” to seize the steel mill to avert a strike during the Korean War 9. _____ would most clearly justify the president’s removal of an American ambassador because his or her views were not compatible with those of the administration. a. Bowsher v. Synar (1986) b. Ex Parte Merryman (1861) *c. Myers v. United States (1926) d. Humphrey’s Executor v. United States (1935) 10. The Supreme Court last held an act of Congress unconstitutional on nondelegation grounds in _____. *a. Schecter Poultry Corporation v. United States (1935) b. United States v. Curtiss-Wright Corporation (1936) c. Carter v. Carter Coal Co. (1936) d. Mistretta v. United States (1988) 11. In Morrison v. Olson (1988), the Supreme Court upheld a provision of the Ethics in Government Act of 1978 under which a “Special Division” of the U.S. Court of Appeals for the District of Columbia was empowered to appoint _____. a. federal marshals *b. independent counsels c. federal magistrates d. special jurists

12. President Nixon claimed that he should not have to comply with a subpoena

demanding that he provide certain tape recordings to a federal district court because the subpoena violated _____. a. his right against Self-incrimination b. his right to Confrontation *c. Executive Privilege d. Due Process 13. According to Supreme Court doctrine, which of the following statements, if any, is true? _____ a. A president is immune from a civil lawsuit that arises out of his unofficial conduct that occurred prior to him becoming president. *b. A president is entitled to absolute immunity from damages liability predicated on his official acts. c. A president may never be subject to a criminal investigation or civil action so long as he is “in office”. d. None of the above statements is true.

14. Members of Congress are not legally accountable for statements made in their official capacity under the _____ Clause of Article I. a. Due Process Clause b. Immunity *c. Speech and Debate Clause d. Membership 15. In Watkins v. United States (1957), the Supreme Court held that _____. *a. there is no congressional power to expose for the sake of exposure b. Watkins’s First Amendment interests were overridden by Congress’s in ensuring society’s self-preservation c. Watkins’s impeachment conviction was constitutional even though the full Senate did not investigate the charges d. Watkins’s speech on the chamber floor was protected by the Constitution; his press release was unprotected 16. In Nixon v. United States (1993), the Supreme Court held that _____. *a. Nixon’s claim of absolute privilege was invalid b. Nixon’s impeachment, conviction, and removal was unconstitutional c. Nixon’s conviction and removal by the Senate was a political question, and thus nonjusticiable d. none of the above 17. In United States v. Pink (1942), the Supreme Court held that _____ carry the same weight as _____. a. executive arrangements; executive agreements *b. executive agreements; treaties c. treaties; federal law

d. executive orders; acts of Congress 18. A treaty obligation entered into by the United States may be terminated _____. a. only by Congress b. by a state law *c. by an act of the president d. by popular referendum authorized by Congress 19. The importance of presidential power in enforcing a constitutional decision of the Supreme Court is well illustrated by the circumstances surrounding _____. a. Gibbons v. Ogden (1824) b. South Dakota v. Dole (1987) *c. Cooper v. Aaron (1958) d. Hutchinson v. Proxmire (1979) Essay Questions 1. Discuss the grounds on which Justice Scalia dissented in Morrison v. Olson (1988).

2. State the holding and significance of INS v. Chadha (1983). What is the “Hobson’s choice” left for Congress?

3. Articulate the primary justification(s) for striking down the line-item veto in Clinton v. City of New York (1998).

4. A central issue in constitutional politics involves whether the authority granted in Article II exhausts the powers of the president. To what extent does the president enjoy inherent powers and extraordinary powers in times of emergency? Scholars disagree on this important question. Discuss the several theories of presidential power. Demonstrate the Supreme Court’s acceptance or rejection of these theories by relying on cases we have discussed this semester. Be specific. To which theory (or theories) has the Supreme Court ascribed and why? In what circumstances? To which theory (or theories) did the Framers probably subscribe and why? Support your conclusions.

5. The Supreme Court has ruled on a number of challenges to the administration of George W. Bush’s claim that it had the power to detain indefinitely U.S. citizens held as “enemy combatants”; and to detain indefinitely and try by military tribunal, without and with limited appeal, foreign nationals who had been seized on battlefields and held at Guantanamo Bay, Cuba. These cases—Hamdi v.

Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008)—illustrate well the basic constitutional dilemma in enforcing constraints on presidential power to wage war. Focusing primarily on the last two cases, discuss the Court’s conclusions, explaining the applicable

presidential directives, laws, treaties, writs, and precedents. To what extent do these cases demonstrate that restraints on presidential power to wage war remain in the hands of Congress?

6. In what way did Nixon v. Fitzgerald (1982) strengthen the presidency? Explain.

Justice White in dissent insisted that the majority’s position amounted to a “reversion to the old notion that the King can do no wrong.” To what extent did Justice Powell’s opinion of the Court effectively answer White’s charge? Explain.

7. In light of both Myers v. United States (1926) and Humphrey’s Executor v.

United States (1935), do you find Chief Justice Rehnquist’s opinion for the majority in Morrison v. Olson (1988) persuasive? Why? Explain. a. Justice Scalia wrote in dissent that the title of the statute being challenged in Clinton v. City of New York “has succeeded in faking out the Supreme Court.” What did he mean? b. On what basis did Justice Breyer argue in his dissent in the same case that “one cannot say that the Act ‘encroaches’ upon Congress’s power?” Do you agree? Why? 8. Supreme Court decisions in recent decades on separation-of-powers issues generally reflect one of two approaches. Some decisions adopt a “flexible” approach, while others follow a “rigid” approach. Which approach better characterizes the majority’s position in Morrison v. Olson (1988)? Why? Which approach better characterizes the majority’s position in Clinton v. City of New York (1998)? Why? 9. In his dissent in INS v. Chadha, what point was Justice White making when he wrote: “a departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President”? Explain.

10. The Supreme Court has rendered two major decisions on the subject of presidential immunity to personal liability in a civil action brought against him: Nixon v. Fitzgerald and Clinton v. Jones. One decision favored the president, but the other did not. Is the Court guilty of inconsistency? Explain.

11. Dissenting in Mistretta v. United States, Justice Scalia declared: “Today’s decision may aptly be described as the Humphrey’s Executor of the Judicial Branch....” What did Scalia probably mean?

12. Regarding INS. v. Chadha (1983): a. What fatal defect did the Court’s majority find in the legislative (or congressional) veto? b. Aside from believing that the legislative veto had “become a central means by which Congress secures the accountability of executive and independent agencies,” Justice White said in his dissent that he was

convinced that the device, first used in 1932, was “consistent with the distribution of and limits upon legislative power that Article I provides....”

What did he mean?

13. “Justice Sutherland’s opinion for the Court in United States v. Curtiss-Wright can be read as discourse on federalism as well as separation of powers.” Discuss.

14. Constitutional challenges to particular legislation and practices prevailed in INS v.

Chadha and Clinton v. City of New York but not in Morrison v. Olson.

(Interestingly, the division in none of the cases was particularly close: Chadha was decided 7–2, Morrison 6–2, and Clinton 6–3.) Yet, has the Supreme Court been inconsistent in its approach to these three separation-of-powers cases?

Alternatively, does each majority opinion share one or more common elements or rationalizing principles with the majority opinions in the other two that makes each outcome consistent with the others?

15. If the Supreme Court decided Nixon v. Fitzgerald correctly, how can the Court also be correct in Clinton v. Jones?

16. Articulate the primary justification(s) for striking down the line-item veto in Clinton v. City of New York.

FOUR

FEDERALISM Multiple Choice 1. In U.S. Term Limits, Inc. v. Thornton (1995), the Supreme Court declared term limits for members of the U.S. Congress _____. *a. violative of the Membership Clause of Article I b. violative of the Tenth Amendment c. violative of the Republican Form of Government Clause of Article IV d. nonjusticiable under the “political question” doctrine 2. The constitutional theory of implied powers is most closely associated with _____. *a. McCulloch v. Maryland b. Chisholm v. Georgia c. Cohens v. Virginia d. Collector v. Day 3. Cohens v. Virginia concerned a statute that regulated _____. a. railroads b. banks c. taxes *d. lotteries 4. Gonzales v. Raich concerned _____. a. term limits for members of Congress *b. a California statute c. a gun crime in Texas d. federal taxes 5. The doctrine or principle of national supremacy is most closely identified with _____. a. Roger B. Taney b. Salmon Chase *c. John Marshall d. Justice John Gibson 6. The proposition that the central government and states confront each other in the relationship of superior and subordinate describes _____. a. the doctrine of dual federalism *b. the doctrine of national supremacy c. the supremacy clause d. none of the above

7. The proposition that the national government and the states face each other as equals across a precise constitutional line defining their respective jurisdictions describes _____. a. the doctrine of national supremacy *b. the doctrine of dual federalism c. the supremacy clause d. none of the above 8. The doctrine or principle of dual federalism is most closely identified with _____. a. John Marshall *b. Roger Taney c. James Wilson d. none of the above 9. The Constitution’s supremacy clause is found in _____. a. Article I b. Article III c. Article V *d. Article VI 10. Governmental powers that derive from the mass of delegated powers or from a group of them are called ______. a. implied powers b. concurrent powers c. direct powers *d. resulting powers 11. The necessary and proper clause is found in ______. a. Article III b. the First Amendment *c. Article I d. all of the above 12. The necessary and proper clause is also known as _____. a. the Supremacy Clause b. the due process clause *c. the elastic clause d. the judicial clause 13. The necessary and proper clause is the source of the doctrine of _____. a. judicial review *b. implied powers c. concurrent powers d. exclusive powers 14. McCulloch v. Maryland concerns a _____.

a. telegraph line b. bridge *c. bank d. railroad Essay Questions 1. In what way(s) does Chisholm v. Georgia confirm or refute Federalist No. 78?

2. In what way was section 25 of the Judiciary Act of 1789 at issue in Cohens v.

Virginia?

3. The Supreme Court’s decisions in both McCulloch v. Maryland and Cohens v.

Virginia were very controversial in their day. Yet, in the first, the Court only agreed to accept an institution that Congress had already established; in the second, Virginia actually won on the merits. Why then would certain political groups have found Marshall’s opinions in these two cases highly troubling?

4. Consider John Marshall’s opinions in McCulloch v. Maryland, Cohens v.

Virginia, and Gibbons v. Ogden. From them is it plausible to conclude that the Chief Justice was more suspicious of actions of state legislatures than of Congress? Why? Explain. What do these opinions suggest about Marshall’s vision of the Supreme Court’s role in the young Republic?

5. What were the main points of contention between Justice Stevens (for the majority) and Justice Thomas (in dissent) in U. S. Term limits, Inc. v. Thornton?

Explain.

6. What might have been the consequences for the nation today had Maryland prevailed in the bank case and had Virginia prevailed on the jurisdictional point in Cohens?

7. Particularly as read in the light of McCulloch v. Maryland, why is Marshall’s opinion in Gibbons v. Ogden so significant?

8. Discuss the origin, justification, and significance of the doctrine of implied powers.

9. Explain the role of Section 25 of the Judiciary Act of 1789 in strengthening the U.S. Supreme Court’s place in the American political system. Illustrate your essay with at least one assigned case, specifically exploring the consequences for the nation had Section 25 never been enacted.

10. Consider the four approaches to constitutional interpretation discussed in the introductory essay for Chapter Two (on judicial review).

a. Which approach best characterizes Justice Stevens’s opinion of the Court in U.S. Term Limits, Inc. v. Thornton (1995)? Explain. b. Which approach best characterizes Justice Thomas’s dissent in the same case? Explain.

11. What theory of federalism best characterizes Justice Nelson’s opinion of the Court in Collector v. Day (1871)? Explain.

FIVE

The Electoral Process Multiple Choice 1. In Gomillion v. Lightfoot (1960), the Supreme Court held that drawing political boundary lines to exclude minority voters violated the Equal Protection Clause of the Fourteenth Amendment. _____ a. TRUE *b. FALSE 2. In which of the following cases did the Supreme Court dismiss as nonjusticiable a lawsuit challenging malapportionment? _____ a. Gomillion v. Lightfoot (1960) b. Reynolds v. Sims (1964) *c. Colegrove v. Green (1946) d. Flast v. Cohen (1968) 3. In Baker v. Carr (1962), the Supreme Court invalidated a 1901 Tennessee law that created unequal state legislative districts. _____ a. TRUE *b. FALSE 4. The principle of “one person, one vote” was first articulated in _____. a. Baker v. Carr (1962) b. Wesberry v. Sanders (1964) c. South Carolina v. Katzenbach (1965) *d. Gray v. Sanders (1963) 5. In Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), the Supreme Court _____. a. upheld limitations on party expenditures in Senate races b. sustained the constitutionality of spending limits on congressional elections c. declared unconstitutional limitations on political parties’ campaign expenditures made in conjunction with a candidates’ campaign committee *d. declared unconstitutional limitations on political parties’ campaign expenditures made independently of a candidates’ campaign committee 6. The principal dissent in McConnell v. Federal Election Commission and the majority opinion in Citizens United v. Federal Election Commission were written by _____. a. Justice O’Connor b. Justice Stevens c. Chief Justice Roberts

*c. Justice Kennedy 7. The organization called Citizens United initiated litigation because of _____. a. monetary contributions it wanted to receive b. monetary contributions it wanted to make to a candidate *c. a documentary video d. none of the above 8. In California Democratic Party v. Jones, the party preferred _____. a. blanket primary b. a nonpartisan primary *c. a closed primary d. none of the above 9. In Reynolds v. Sims, Chief Justice Warren discussed _____. a. racial discrimination *b. the federal analogy c. official corruption d. South Carolina legislative districts 10 Vieth v. Jubelirer concerned _____. a. districting in New Jersey *b. gerrymandering c. racial discrimination d. policies that favored Pennsylvania Democrats 11. Shelby County v. Holder involved a challenge to the Affordable Care Act. _____ a. TRUE *b. FALSE Essay Questions 1. In his dissent in Baker v. Carr, Justice Frankfurter denounced the majority for “asserting destructively novel judicial power” in its decision. What did Frankfurter mean? What alternative remedy did Frankfurter offer in his dissent for those aggrieved voters who had brought this case? Explain.

2. Articulate the holding and rationale in either (1) McConnell v. Federal Election Commission (2003), as pertaining to Title I, Sec. 323 (a) (ban on soft money), and Title II, Sec. 203 (prohibition of corporate and labor disbursements for electioneering communications), of the Bipartisan Campaign Reform Act; or (2) Citizens United v. Federal Election Commission (2010), as pertaining to Title, II, Section 203, of the Bipartisan Campaign Reform Act.

3. Articulate the holding and rationale in Citizens United v. Federal Election Commission (2010), as pertaining to Title, II, Section 203, of the Bipartisan Campaign Reform Act. 4. At least since Davis v. Bandemer (1986), the search for judicially manageable standards in the context of partisan gerrymandering has been elusive. What solution did Justice Souter believe he had developed in Vieth v. Jubelirer (2004)?

Explain. Does his approach seem workable to you? Why? 5. In what way does Justice Anthony Kennedy’s opinion for the majority in Miller v.

Johnson (1995) limit the discretion of a state legislature in drawing district lines?

Explain.

6. Explain the crucial threshold questions at issue in Baker v. Carr and Davis v. Bandemer.

7. Consider Justice Frankfurter’s dissent (which Justice Harlan joined) in Baker v.

Carr (1962) and Justice Harlan’s dissent in Reynolds v. Sims (1964). (Frankfurter retired before Reynolds was decided.) Suppose Harlan and Frankfurter had each been on the Court in 2004 when Vieth v. Jubelirer was decided, and assume that both justices still adhered to the perspective they had expressed in those cases from the 1960s. Would Harlan and Frankfurter have been more likely to join Justice Scalia’s plurality opinion in Vieth v. Jubelirer or Justice Souter’s dissent?

Why? Explain.

8. According to Justice Brennan’s opinion for the Court in Baker v. Carr, one of the requirements for justiciability is the presence of “judicially discoverable and manageable standards for resolving” a dispute. Discuss this requirement in the context of Reynolds v. Sims, Davis v. Bandemer, and Shaw v. Reno. To what degree did the majority succeed in making clear the “discoverable and manageable standards” to be applied in those cases?

9. Viewed as landmarks in establishing a cause of action under the Fourteenth Amendment, explain how Baker v. Carr and Shaw v. Reno are analogous? With what objections from dissenters did Justices Brennan and O’Connor have to contend in their respective majority opinions?

10. In Reynolds v. Sims, how did Justice Stewart’s standard for determining constitutionally of numerically unequal legislative districts differ from Chief Justice Warren’s?

11. Consider justiciability and the political question doctrine. What does the Court do with those self-limiting concepts in Baker?

12. To what extent does the Vieth case suggest that the Court’s focus on equal numbers in Reynolds was merely a first step into the waters of representation?

13. Examine the Court’s position in Vieth: what would now constitute an unconstitutional gerrymander?

14. In Buckley, why is the Court’s perception of expenditures and contributions critical to the outcome of the case?

15. What is the basis of the Court’s extraordinary intervention in the presidential election of 2000?

16. What is the political significance of McConnell v. FEC and Citizens United? How is Buckley reflected in these decisions?

17. Explain the constitutional justifications for the outcome reached in Bush v. Gore (2000). What would the dissenters (both groups) have preferred the Court to do?

For what reasons?

18. Beginning in 1960, the Warren Court confronted the issue of malapportionment.

Citing selectively appropriate cases and doctrines, trace the evolution of relevant constitutional provisions and their application to legislative apportionment. What standards have been developed and how have those standards been applied by the Supreme Court? Be sure to discuss in detail the Voting Rights Act of 1965. How did the Voting Rights Act prohibit states from disenfranchising minority voters?

How did the Rehnquist Court respond when race has been used in redistricting to enhance minority voting strength?

SIX The Commerce Clause Multiple Choice 1. In the wake of the constitutional crisis of 1937, the _____ nearly disappeared as a limitation on the powers of the national government. *a. Commerce Clause b. Ninth Amendment c. Tenth Amendment d. Fourteenth Amendment 2. _____ was among the first cases in which the Supreme Court recognized the power of the states to regulate local aspects of interstate commerce. *a. Cooley v. Board of Wardens of the Port of Philadelphia (1851) b. Southern Pacific Company v. Arizona (1945) c. Cohens v. Virginia (1821) d. McCulloch v. Maryland (1819) 3. The Supreme Court is most likely to declare a state regulation of interstate commerce unconstitutional if _____. a. it regulates in an area requiring local diversity *b. it favors out-of-state industry at the expense of local industry c. it differs substantially from similar regulations in other states d. it produces revenue for the state 4. In National League of Cities v. Usery (1976), the Court struck down a 1974 amendment to the Fair Labor Standards Act that extended the federal minimum wage to _____. a. children b. undocumented aliens *c. state and local government employees d. none of the above 5. Gibbons v. Ogden involved a _____. a. bank b. lottery *c. steamboat d. railroad 6. The justice who wrote a concurring opinion in Gibbons v. Ogden was named _____. a. Marshall

*b. Johnson c. Story d. Washington 7. In Gibbons v. Ogden Marshall defined commerce as _____. a. slow *b. intercourse c. fast d. concurrent 8. According to Justice Johnson in Gibbons v. Ogden, Congress’s power to regulate commerce was _____. a. concurrent b. resulting *c. exclusive d. joint 9. The decision in Cooley v. Board of Wardens of the Port of Philadelphia is the source of the doctrine of _____. a. implied powers *b. selective exclusiveness c. interstate commerce d. exclusivity 10. The majority opinion in Cooley v. Board of Wardens of the Port of Philadelphia was written by _____. *a. Justice Curtis b. Chief Justice Taney c. Chief Justice Marshall d. Justice Johnson 11. Lopez v. United States (1995) was noteworthy because it marked the first time since 1936 that the Supreme Court had invalidated an act of Congress as a violation of _____. a. the Fourteenth Amendment b. the due process clause *c. the commerce clause d. the necessary and proper clause 12. The Supreme Court last held an act of Congress unconstitutional on nondelegation grounds in _____. *a. Schecter Poultry Corporation v. United States (1935) b. United States v. Curtiss-Wright Corporation (1936) c. Carter v. Carter Coal Co. (1936) d. Mistretta v. United States (1988)

13. In National Federation v. Sebelius (2012), the majority upheld the validity of the individual mandate component of the Affordable Care Act as a proper use of Congress’s power to regulate commerce. _______ *a. TRUE b. FALSE 14. In National Federation v. Sebelius (2012), the majority upheld the validity of the individual mandate component of the Affordable Care Act as a proper use of Congress’s spending power. _______ a. TRUE *b. FALSE Essay Questions 1. Why did Congress find it necessary to rely on the Commerce Clause in enacting Title II of the Civil Rights Act of 1964? Discuss the constitutional challenges to this legislation.

2. Particularly as read in the light of McCulloch v. Maryland, why is Marshall’s opinion in the steamboat case so significant?

3. What difference does it make whether the commerce power is regarded as “exclusive” or “concurrent”?

4. What distinction does the Court employ in Reeves to uphold the state policy in that case? Might the same distinction have plausibly been used in the garbage case to reach a different result?

5. Suppose wineries in Michigan and New York were state-owned. Would the result in Heald have been different?

6. Consider United States v. E. C. Knight, Champion v. Ames, Hammer v.

Dagenhart, and Stafford v. Wallace. To what extent do they reflect different understandings of what “commerce” is?

7. Can one logically agree with the decisions in both Hammer and Stafford?

8. What is the significance of Lopez? Was the Court merely asking Congress for minor cosmetic changes in how it passes laws, or is there something more fundamental being suggested? Why? 9. Although they are separated by 105 years, are there similarities between Morrison and E.C. Knight?

10. Does the outcome in Raich seem inconsistent with those in Lopez and Morrison?

Why? 11. Assume the following: A state law imposes a tax on all timber harvested within the state. In-state timber-cutting companies pay a tax rate of 3% of the wholesale value of the timber harvested. Timber-cutting companies out-of-state pay a tax rate of 6% of the wholesale value of the timber harvested. An out of state company files suit in the United States District Court, claiming that the state’s two-tier timber tax violates the Commerce Clause. How should the district court rule? Why? 12. The Bureau of Forestry in the State of Myopia not only oversees the thousands of acres of state-owned forests, but also operates a lumber mill that processes rare and/or exotic woods, harvested from the state forests in a mountainous region of the state that are used in the manufacture of furniture. Bureau regulations specify that in selling the wood to furniture factories and to other consumers, the stateowned lumber mill is to supply in-state businesses first, and then to sell to out-ofstate businesses only after the in-state demand has been met. Because of a beetle infestation, the state-owned mill has been unable to fill orders from out of state, but has managed to meet most in-state demand. A furniture manufacturer in another state files suit in the United States District Court, claiming that the Bureau’s policy favoring in-state businesses violates the Commerce Clause. How should the district court rule? Why? 13. In light of Wickard v. Filburn alone, why would the Solicitor General’s office have expected an easy victory in Gonzales v. Raich? (Make sure that your essay demonstrates an understanding of both cases, including an explanation of which side prevailed when the Supreme Court decided Raich.)

14. According to Justice William Day’s opinion for the Court in Hammer v.

Dagenhart, why was the Keating Owen Child Labor Act of 1916 “in a twofold sense repugnant to the Constitution”?

15. What is the doctrine of selective exclusiveness and in what case did it originate?

Explain. With what constitutional problem arising from Marshall’s opinion in Gibbons v. Ogden did the doctrine attempt to deal? Explain.

16. In preparing for oral argument in Gonzales v. Raich, why would the solicitor general have placed heavy reliance on Wickard v. Filburn? Explain. Be sure that your essay demonstrates a full understanding of both Filburn and Raich.

17. According to Chief Justice Rehnquist’s opinion of the Court in United States v.

Morrison, why was section 5 of the Fourteenth Amendment insufficient constitutional authority for the Violence Against Women Act which had become law in 1994? Explain. Be sure that your essay demonstrates a full understanding of Morrison.

18. Is the decision in Granholm v. Heald (2005) consistent with the decision in Philadelphia v. New Jersey (1978)? Why? Make sure that your essay demonstrates an understanding of both cases.

19. The “Court-Packing” controversy of the 1930s proved to be a watershed event in American constitutional law and in the institutional development of the U.S. Supreme Court. Before President Roosevelt’s New Deal legislation began to be challenged in various lawsuits, a. What evidence did Roosevelt have that his administration’s programs would probably be sustained once they reached the Supreme Court? b. What evidence did the president have that his administration’s programs might be rebuffed by the Court at least to some degree? c. Once the president realized that he faced a decidedly unfriendly bench, what were his options (aside from the one he actually chose to follow) to enable him to achieve his policy objectives? Discuss. d. Other than the course of action the Court chose to follow in the spring of 1937, what other options were open to the Bench?

20. Discuss the evolution of the Supreme Court’s Commerce Clause jurisprudence from Gibbons v. Ogden (1824) to the present. Refer to leading cases selectively to illustrate major turning points, standards, and historical trends in Supreme Court decision-making in this broad field of constitutional interpretation. To what extent do these cases reflect a different understanding of what commerce is? In what areas have the Congress and the Court been accused of “distorting” the Commerce Clause? How have the justices justified this “distortion”? What does the development of the commerce power reveal about the function of the Supreme Court as a coordinate branch of government within the American political system?

21. In National Federation v. Sebelius (2012), is Justice Ginsburg correct in insisting that Wickard v. Filburn (1942) is sufficient support for the constitutionality of the individual mandate that lies at the heart of the Affordable Care Act? Explain. Or, are Chief Justice Roberts and Justices Alito, Scalia, Kennedy, and Thomas correct in their insistence that, on this point, she is plainly wrong? Explain.

SEVEN National Taxing and Spending POWER Multiple Choice 1. Hylton v. United States involved a tax on _____. a. lotteries b. oleomargarine c. whiskey *d. carriages 2. Justice ______ did not file an opinion in Hylton v. United States. *a. Cushing b. Patterson c. Iredell d. Chase 3. The Constitution specifies that indirect taxes are to be levied according to the rule of _____. a. fairness b. apportionment *c. uniformity d. population 4. Pollock v. Farmers’ loan and Trust Co. involved _____. *a. an income tax b. a tax on carriages c. tariffs d. a tax on oleomargarine 5. What change in the Constitution was brought about as a result of reaction to Pollock v.

Farmers’ Loan and Trust Co.? _____ a. Seventeenth Amendment b. Eighteenth Amendment c. Nineteenth Amendment *d. Sixteenth Amendment

6. McCray v. United States involved ____. a. an income tax b. a tax on carriages c. tariffs *d. a tax on oleomargarine 7. Congress’s power to tax is an example of ____. a. an implied power *b. an enumerated power c. an exclusive power d. resulting power 8. The majority opinion in Bailey v. Drexel Furniture Co. was written by ____. *a. Chief Justice Taft b. Justice Brandeis c. Justice Roberts d. Justice Stone 9. Rumsfeld v. Forum for Academic and Institutional Rights involved ____. *a. the Solomon Amendment b. the Fourth Amendment c. the taxing power d. the Hyde Amendment 10. South Dakota v. Dole involved ____. a. the income tax b. agricultural price supports *c. the drinking age d. a national speed limit 11. According to Justice Stone in United States v. Butler, “the only check upon our own exercise of power is ____. a. “the President” b. “the Constitution” c. “the people” *d. “our own sense of self-restraint” 12. The majority opinion in In National Federation v. Sebelius (2012) bears the name of _____. a. Justice Kennedy b. Justice Ginsburg *c. Chief Justice Roberts d. Justice Breyer

Essay Questions 1. In what way does Hylton v. United States anticipate John Marshall’s opinion in Marbury v. Madison?

2. In evaluating Congress’ powers under the spending clause, what difference does it make whether the Court prefers the Hamiltonian or Madisonian Theory?

3. In United States v. Butler, did the Court rely on the Madisonian or Hamiltonian theory? Explain.

4. According to Justice Roberts’s opinion for the majority in United States v. Butler, what was the Court’s task in weighing the constitutionality of an act of Congress?

5. What is the connection between Bailey v. Drexel Furniture Co. and Hammer v.

Dagenhart?

6. How has the Supreme Court interpreted the power to tax to enhance congressional power? Refer to leading cases to illustrate your points.

7. In what way did McCray v. United States almost convert the taxing power into a “political question”?

8. What role did the taxing power play in the Court’s decision in National Federation v. Sebelius (2012)? Explain.

EIGHT

Property Rights and the Development of Due Process Multiple Choice 1. In _____, the Supreme Court held that businesses “clothed in the public interest” could be regulated by the states. a. Charles River Bridge Co. v. Warren Bridge Co. (1837) *b. Munn v. Illinois (1877) c. Lochner v. New York (1905) d. West Coast Hotel Co. v. Parrish (1934) 2. Dartmouth College v. Woodward involved ____. a. the due process clause b. the commerce clause *c. the contract clause d. presidential power 3. The opinion of the Court in Charles River Bridge Co. v. Warren Bridge Co. was written by ____. a. Chief Justice Marshall b. Justice Story c. Andrew Jackson *d. Chief Justice Taney 4. As a result of the decision in Charles River Bridge Co. v. Warren Bridge Co. shareholders of the Charles River Bridge Co. were jubilant. ____ a. TRUE *b. FALSE 5. The holding in Calder v. Bull stated that the Constitution’s ban on ex post facto laws was limited to certain kinds of retroactive _____. a. tax legislation b. wills and estates *c. criminal legislation d. civil issues

6. According to Justice Iredell in Calder v. Bull, the “ideas of natural justice” are______. *a. regulated by no fixed standard b. enforceable by the Supreme Court c. are followed by the most able jurists d. none of the above 7. The decision in Charles River Bridge Co. v. Warren Bridge Co. rejected the idea that the Constitution protected _____. *a. implied contracts b. paper money c. federal contracts d. state contracts 8. Home Building & Loan Association v. Blaisdell involved a challenge to statute in ___. a. Michigan *b. Minnesota c. Wisconsin d. Missouri 9. The majority opinion in Home Building & Loan Association v. Blaisdell was written by _____. *a. Chief Justice Hughes b. Justice McReynolds c. Justice Cardozo d. Chief Justice Taft 9. In his speech in 1893, Justice David J. Brewer advocated ____. *a. strengthening the judiciary b. judicial restraint c. stronger labor unions d. a vigilant public opinion 10. In his article of 1893, Professor Thayer advocated ____. a. judicial activism b. selection of judges who walk in the shoes of lawmakers c. more efficient courts *d. judicial restraint 11. In Lochner v. New York, Justice Peckham spoke of _____. a. the contract clause *b. liberty of contract c. the public interest d. the Fifteenth Amendment

12. Munn v. Illinois involved _____. a. butchers *b. grain warehouses c. hotel workers d. bakery employees 13. United States v. Carolene Products Co. involved _____. *a. a milk product b. a textile product c. an automotive product d. a petroleum product 14. Chief Justice/Justice _____ famous footnote in U.S. v. Carolene Products (1938) recognized potential constitutional problems resulting from efforts to limit rights found in the first ten amendments. a. Oliver Wendell Holmes’ b. Felix Frankfurter’s *c. Harlan F. Stone’s d. Charles Evans Hughes’ 15. The setting for Charles River Bridge Co. v. Warren Bridge Co. was _____. a. Ohio b. New York *c. Massachusetts d. Illinois Essay Questions 1. Suppose Waite and Peckham had been on the Supreme Court that decided Nollan v. California Coastal Commission as well as Kelo v. City of New London. How would Waite and Peckham have probably voted in each of these contemporary cases? Why? (Make sure that your essay demonstrates an understanding of both Nollan and Kelo.)

2. According to Justice Samuel Miller’s opinion for the Court in the Slaughterhouse Cases, why did the New Orleans butchers fail to make a credible claim under the recently ratified Fourteenth Amendment?

3. For health reasons New York City has banned the serving of food containing high concentrations of corn-based sweeteners in restaurants within the city. Suppose that a group of restaurant owners files suit claiming that the new ordinance violates the due process clause of the Fourteenth Amendment. How would a U.S. Supreme Court justice approach such a case from the perspective of:

a. b. c. d. e.

Chief Justice Morrison Waite’s opinion of the Court in Munn v. Illinois; Justice Stephen Field’s dissent in Munn v. Illinois; Professor James Bradley Thayer’s 1893 Harvard Law Review article; Justice Rufus Peckham’s opinion of the Court in Lochner v. New York Justice Hugo Black’s opinion of the Court in Ferguson v. Skrupa.

4. In what ways does Calder v. Bull anticipate both Marbury v. Madison and Cohens v. Virginia that were decided some years after Calder v. Bull? Explain.

Be sure that your essay demonstrates a full understanding of both Calder and Cohens.

5. Opinions filed in Lochner v. New York reveal different ways of judging state laws claimed to be in violation of the due process clause of the Fourteenth Amendment. a. What approach is illustrated by Justice Peckham’s opinion for the majority? Explain. b. What approach is illustrated by the dissents of Justices Holmes and Harlan? Explain 6. Based on his opinion for the Court in Ferguson v. Skrupa (1963), would Justice Black have looked favorably or unfavorably on Chief Justice Waite’s majority opinion in Munn v. Illinois (1877)? Why? Make sure your essay demonstrates an understanding of both cases.

7. Use of the due process clause to protect property may have represented an effort to amend the Constitution judicially, to add to the document protections that the framers failed to include. Is there evidence to support this statement in the Slaughterhouse Cases, Munn v. Illinois, and Lochner v. New York?

8. In 1893, Justice David J. Brewer and Professor James Bradley Thayer spoke out on judicial activism versus judicial restraint. What did they recommend concerning the Court’s role?

9. What two changes in the Court’s role are suggested by the decision in the Carolene Products case?

10. What are the ideas contained in Justice Stone’s Footnote Four in Carolene Products?

11. How does Footnote Four purport to offer a solution to the counter-majoritarian difficulty?

12. Chief Justice Waite (in Munn v. Illinois, 1877) and Justice Peckham (in Lochner v. New York, 1905) had very different views regarding (1) the Fourteenth Amendment’s due process clause, and (2) the Court’s role in American government. Explain.

13. According to Justice Miller’s (majority) opinion for the Court in the Slaughterhouse Cases (1873), what protections did the Fourteenth Amendment provide against abuses of individual rights by the states? Was Miller’s message one that the New Orleans area butchers wanted to hear? Explain.

14. In his dissenting opinion in the Slaughterhouse Cases (1873), Justice Field insisted that had the majority adopted his interpretation of the privileges and immunities clause, the “inhibitions” of the recently ratified Fourteenth Amendment would have “a profound and significant consequence.” Explain.

15. Discuss briefly the constitutional and economic significance of Trustees of Dartmouth College v. Woodward (1819).

16. What is there about the Court’s decision and majority opinion in Kelo v. City of New London that has provoked such a sharp negative reaction in many states?

NINE

The Bill of Rights

Multiple Choice 1. Which provision of the Bill of Rights has never been incorporated into the Fourteenth Amendment? _____ *a. Grand Jury Clause (Fifth Amendment) b. Double Jeopardy Clause (Fifth Amendment) c. Assistance of Counsel Clause (Sixth Amendment) d. Cruel and Unusual Punishments Clause (Eighth Amendment) 2. What was the first provision in the Bill of Rights to be applied to the states by way of the Fourteenth Amendment? _____ a. freedom of speech (First Amendment) b. free exercise of religion (First Amendment) *c. just compensation for property seized for public use (Fifth Amendment) d. searches and seizures (Fourth Amendment) 3. What is the most recent provision of the Bill of Rights to be applied to the states? ____ a. Confrontation Clause (Sixth Amendment) *b. right to bear arms (Second Amendment) c. jury trial in certain civil cases (Seventh Amendment) d. none of the above 4. Who wrote the majority opinion in McDonald v. City of Chicago? ____ a. Justice Kagan *b. Justice Alito c. Chief Justice Roberts d. Justice Souter 5. What previous ruling did the Court in McDonald v. City of Chicago expressly decline to revisit and/or to reconsider? _____ a. District of Columbia v. Heller b. Lochner v. New York *c. Slaughterhouse Cases d. Munn v. Illinois

6. District of Columbia v. Heller involved ____. a. the commerce clause b. the due process clause *c. the Second Amendment d. the Third Amendment 7. _____ wrote the principal dissent in District of Columbia v. Heller. a. Justice Scalia *b. Justice Stevens c. Chief Justice Roberts d. Justice Thomas 8. In his exchange of letters with James Madison, Thomas Jefferson mentioned the absence of ______ as something he did not like about the proposed Constitution. a. a right of privacy b. protections for the states *c. a bill of rights d. a congressional veto over state laws 9. In the exchange of letters between James Madison and Thomas Jefferson, Madison considered “the danger of oppression” coming from ____. a. the executive b. the legislature c. the states *d. wherever the real power in a government lies 10. The ______ doctrine originated in Palko v. Connecticut (1937). a. total incorporation b. selective incorporation *c. ordered liberty d. none of the above Essay Questions 1. What question did District of Columbia v. Heller (2008) answer? What question(s) did it leave unanswered?

2. In Duncan v. Louisiana what values were in conflict? What values seemed most important for White? For Harlan?

3. What use did Frank Palko try to make of the Fourteenth Amendment that is different from the Amendment’s use by the litigants in the Slaughterhouse Cases and Lochner?

4. What does section one of the Fourteenth Amendment mean? Is the Fourteenth Amendment “equal” to the Bill of Rights? Is it “less than” the Bill of Rights? Is it “more than” the Bill of Rights? What reasons can you offer to support your answer?

5. Given the changes in the Supreme Court’s work wrought by the “revolution” of 1937, what is the significance of decisions like Duncan for the American political system?

6. 6. Is nationalization of the Bill of Rights an example of amendment-by-judiciary in operation? Discuss.

7. Juxtaposed to the majority positions in Palko and Adamson, what significant methodological change does Duncan represent in determining those provisions of the Bill of Rights subsumed under the Fourteenth Amendment?

8. How might the Court have used McDonald to revisit Slaughterhouse Cases?

9. What theory of incorporation does Justice Black advance in Adamson?

10. Is Black’s position in Adamson consistent with his position in Duncan? Why? 11. In the exchange of letters between Thomas Jefferson and James Madison in 1787– 1789 regarding the desirability of a bill of rights in the proposed Constitution, what was the argument in favor of a bill of rights that Jefferson stressed, that he believed Madison had overlooked? Explain. Hint: it is the same argument Madison employed when he introduced a series of bill-of-rights amendments in the First Congress.

12. In Duncan v. Louisiana (1968), the majority opinion of Justice White, the concurring opinion of Justice Black, and the dissenting opinion of Justice Harlan represent three distinct methodologies for deciding which provisions of the Bill of Rights are to be applied to the states via the Fourteenth Amendment. Explain.

13. Consider Justice Hugo Black’s dissenting opinion in Adamson v. California (1947), his dissenting opinion in Katz v. United States (1967), and his concurring opinion in Duncan v. Louisiana (1968). What do these opinions reveal about Justice Black’s approach to constitutional interpretation and about his views concerning the proper role for the Supreme Court in the American political system?

14. Is the Fourteenth Amendment equal to or the same as the Bill of Rights? Is it less than the Bill of Rights? Can it even be more than the Bill of Rights? What suggested answers to these questions do you find in the three opinions filed in Duncan v. Louisiana (1968) by Justice White (for the majority), Justice Black (concurring) and Justice Harlan (II) (dissenting)?

15. In the exchange of letters between Thomas Jefferson and James Madison in 1787– 1789 over the desirability of, or need for, a bill of rights, Jefferson writes: “In the arguments in favor of a declaration of rights, you omit one which has great weight with me….” What is the argument that carried such “great weight” with Jefferson? To what degree is Jefferson’s point consistent with Justice Stone’s Footnote Four in United States v. Carolene Products Co. (1938)? Explain.

16. How do Palko v. Connecticut and Adamson v. California illustrate both the “old double standard” and the “fair trial rule”?

17. What would have been the practical legal and policy consequences for the United States in the late 1940s had Justice Black persuaded one more justice to join his opinion in Adamson v. California?

TEN

Criminal Justice Multiple Choice 1. The Supreme Court first applied the Fourth Amendment to the states in _____. *a. Wolf v. Colorado (1949) b. Weeks v. U.S. (1914) c. Mapp v. Ohio (1961) d. U.S. v. Calandra (1974) 2. _____ stands for the rule that police, upon making a lawful arrest, may perform a warrantless search only of the person and the area within the suspect’s immediate grasp or control. a. Aguilar v. Texas (1964) *b. Chimel v. California (1969) c. Stone v. Powell (1976) d. Illinois v. Gates (1983) 3. In Terry v. Ohio (1968), the Supreme Court allowed a(n) _____ on the basis of _____. *a. pat-down search; reasonable suspicion b. arrest; reasonable suspicion c. arrest; drug courier profile d. warrantless search; testimony from an unidentified informant 4. In the case of Mapp v. Ohio (1961), Dollree Mapp had been prosecuted on a charge of _____. a. harboring a fugitive b. resisting arrest c. arson *d. none of the above 5. According to U.S. v. Leon (1984), evidence obtained through a warrantless search is not subject to the exclusionary rule as long as police are acting in “good faith.” _____ a. TRUE *b. FALSE

6. The Supreme Court has held repeatedly that a warrantless search may be “reasonable” within the meaning of the Fourth Amendment under _____. a. the “good faith exception” b. the doctrine of stare decisis c. the “crime control” model *d. exigent circumstances 7. The majority opinion in Miranda v. Arizona (1966) was authored by _____. *a. Chief Justice Earl Warren b. Justice William Brennan c. Justice Potter Stewart d. Justice Hugo Black 8. In Powell v. Alabama (1932), the right to counsel for all criminal cases was incorporated into the Fourteenth Amendment and applied to the states. _____ a. TRUE *b. FALSE 9. The _____ Amendment provides that that accused “shall enjoy the right” to a jury trial in criminal cases. The _____ Amendment guarantees a jury trial in civil cases “where the value in controversy shall exceed twenty dollars.” a. Fifth; Fifth b. Sixth; Sixth c. Fifth, Sixth *d. Sixth; Seventh 10. In Furman v. Georgia (1972), the Court held that the death penalty was unconstitutional because _____. a. it violated “evolving standards of decency” *b. it was applied selectively c. it served no penal, deterrence, or retribution purposes more effectively than a less severe punishment would d. a sentencing mistake was without corrective devices 11. In Furman v. Georgia (1972), Justices _____ and _____ stated their view that the death penalty is inherently “cruel and unusual punishment.” a. White; Rehnquist b. Warren; Stewart c. Blackmun; Burger *d. Marshall; Brennan

12. Under the revised death penalty statute upheld by the Supreme Court in the Gregg v.

Georgia (1976), the jury must find _____ to be present in a capital offense before it can impose a death sentence. a. at least one mitigating factor *b. at least one aggravating factor c. premeditation d. criminal intent 13. In Roper v. Simmons (2005), the Supreme Court overturned a sentence of death _____. a. because of prosecutorial and judicial misconduct b. because of racially discriminatory jury selection c. because the defendant was younger than 21 *d. because the defendant was older than 15 but younger than 18 14. United States v. Jones (2012) involved electronic eavesdropping on a telephone booth. ____ a. TRUE *b. FALSE 15. The Court’s decision in California v. Riley (2014) partly involved a discussion of United States v. Robinson. _____ *a. TRUE b. FALSE 16. California v. Riley mainly involved _____. a. a wiretapped telephone call *b. a cell phone c. possession of marijuana d. assault of a police officer Essay Questions 1. May Dickerson v. United States be seen as the Supreme Court’s response to a congressional challenge to judicial authority? Discuss.

2. What was the effect of United States v. Leon (1984) on the policy that the Court adopted in Mapp v. Ohio (1961)?

3. What are the principal arguments for and against the Fourth Amendment exclusionary rule? Explain.

4. See below queries.

a. What crucial threshold (entry-point) question was common to Olmstead v.

United States (1928), Terry v. Ohio (1968), and Kyllo v. United States (2001)? Explain. b. How did the answer(s) that the Court gave to that question shape the decision in each of those three cases? Explain.

5. Why did Mapp v. Ohio virtually guarantee that an increased number of Fourth Amendment cases would soon appear on the Supreme Court’s docket?

6. Concerning Kyllo v. United States….

“This case is all about answering the question, ‘What constitutes a search?’”

Explain.

7. What was the “Ross anomaly” that Acevedo is supposed to have eliminated?

Explain 8. According both to Justice Scalia’s concurring opinion in Acevedo and to Justice Stevens’s dissenting opinion in Acevedo, the Court “cured” the Ross anomaly at the expense of creating another paradox. Explain.

9. The facts in Terry v. Ohio (1968) presented the Supreme Court with a Fourth Amendment dilemma in at least two respects. Explain.

10. The Supreme Court during the Chief Justiceship of Earl Warren (1953–1969) is remembered for a number of decisions on criminal justice that favored individual rights. Should Terry v. Ohio be considered one of those rights-friendly decisions?

Explain.

11. Someone has said that Mapp v. Ohio (1961) nearly single-handedly made the U.S. Supreme Court a general overseer of criminal justice in the United States.

Discuss.

12. Consider Justice Hugo Black’s dissenting opinion in Adamson v. California (1947), his dissenting opinion in Katz v. United States (1967), and his concurring opinion in Duncan v. Louisiana (1968). What do these opinions reveal about Justice Black’s approach to constitutional interpretation and about his views concerning the proper role for the Supreme Court in the American political system?

13. In Katz v. United States (1967), Justices White and Douglas each wrote a concurring opinion taking different positions on an issue not directly involved in Katz. Explain.

14. Consider Arkansas v. Sanders (1979) and California v. Acevedo (1991). Which decision gives greater latitude to police in law enforcement activities? Explain.

15. In his dissent in United States v. Leon (1984) Justice Brennan wrote that the majority had used “faulty scales” in reaching its conclusion. What did he mean?

Explain.

16. In its decision in Miranda v. Arizona (1966) the Court attempted to lay down a clear rule with respect to the admissibility of confessions obtained by police during interrogations. Why was the Court not entirely successful? Explain.

17. In Atwater v. City of Lago Vista (2001), what is the bright-line rule that the majority adopts but that Justice O’Connor finds so objectionable? What is the basis of her objection? Explain.

18. Justice Potter Stewart wrote the opinion of the Court in both Chimel v. California (1969) and in Katz v. United States (1967). Is his approach to the Fourth Amendment in the earlier case consistent with his approach to the Fourth Amendment in the later case? Explain. (Be sure that your essay demonstrates an understanding of both cases.)

19. Based on her dissent in Board of Education v. Earls (2002), what is Justice Ginsburg’s disagreement with the majority view laid out in Justice Thomas’s opinion of the Court in that case? Explain.

20. According to Justice Thomas’s opinion for the Court in Board of Education v.

Earls (2002), the principles established in Vernonia School District v. Acton (1995) justified the position the Court took in Earls. However, Justice Ginsburg, who was part of the six-justice majority in the Vernonia case, wrote the dissent in Earls and stated that the Vernonia decision provided an inadequate basis for what the Court was doing in Earls. Does Justice Thomas or Justice Ginsburg seem to be standing on more solid ground? Why? 21. What question did Katz v. United States (1967) present to the Court? On what grounds might Solicitor General Erwin Griswold have expected the government to prevail in this case? Explain.

22. As disputes over the meaning of the U. S. Constitution, what do Powell v.

Alabama (1932) and Palko v. Connecticut? (1937) seem to have in common?

What differences do you find? Explain.

23. In U.S. v. Leon, what constitutes the “objectively reasonable belief” that police believe they are acting correctly under the Fourth Amendment? Explain.

24. According to Justice Thurgood Marshall’s dissent in United States v. Robinson (1973), the decision in Chimel v. California (1969) as well as the reasoning in that case argued strongly that the search that turned up the heroin on Robinson was conducted in violation of the Fourth Amendment. What did Marshall mean?

Explain.

25. What position does Justice White advance in his concurring opinion in Katz v.

United States? Is it consistent with his view of the Fourth Amendment that we find in his opinion in Chimel v. California? Why? Explain.

26. What major change in constitutional law did the Supreme Court make in Mapp v.

Ohio? What three justifications did Justice Clark offer for the result that the Court reached in that case? Explain.

27. According to Justice Stevens’s dissent in Kyllo v. United States, the Court’s “new rule” was both “too narrow as well as too broad.” What was the “new rule”? What did Stevens mean? Explain.

28. Discuss the Supreme Court’s justification for its limitation in Roper v. Simons on the imposition of the death penalty for juveniles.

ELEVEN

Freedom of Expression Multiple Choice 1. Justice _____ wrote in Schenck v. U.S. (1919) that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.” a. Edward T. Sandford b. Louis D. Brandeis *c. Oliver Wendell Holmes, Jr. d. Stephen J. Field 2. In determining the degree of protection to be accorded seditious speech under the First Amendment, the modern Supreme Court is most likely to invoke the _____. a. clear and present danger test b. bad tendency test c. ad hoc balancing test *d. imminent lawless action or incitement test 3. In _____, the Supreme Court reversed an obscenity conviction where a man had been prosecuted after police found obscene films in his home. a. Roth v. U.S. (1957) b. Alberts v. California (1957) c. Memoirs of a Woman of Pleasure v. Massachusetts (1966) *d. Stanley v. Georgia (1969) 4. In Miller v. California (1973), the Supreme Court held that to be obscene, a particular work had to be totally without redeeming social value. _____ a. TRUE *b. FALSE 5. Personally abusive epithets or insults that are intended to and inherently likely to provoke violence are known as _____. a. obscenities *b. fighting words c. hate speech d. solicitations

6. In R.A.V. v. St. Paul (1992), the Supreme Court concluded that St. Paul’s ban on crossburning _____. *a. violated the Free Speech Clause of the First Amendment b. did not violate the Free Speech Clause of the First Amendment c. was aimed at action rather than speech and thus did not present a First Amendment problem d. was prohibited by the Equal Protection Clause of the Fourteenth Amendment 7. Under New York Times v. Sullivan (1964), a public official is barred from recovering damages for the publication of libelous statements unless he or she can show that the defendant’s statements were made with _____. a. criminal negligence *b. actual malice c. reckless abandon d. latent hostility 8. In New York Times v. U.S. (1971), the Supreme Court rebuffed the Nixon Administration’s attempt to block publication of ____. a. an editorial critical of the Vietnam War b. an advertisement taken out by critics of the Nixon Administration c. a document containing instructions on the creation of an atomic bomb *d. the Pentagon Papers 9. Which of the following is the best example of symbolic speech? _____ a. the expletive “f--- the draft” prominently displayed on the jacket of a man as he walked down a courthouse corridor *b. a black armband worn by a school student during school hours as a visible expression of protest against the Vietnam War c. a boycott d. the bullet that killed Abraham Lincoln 10. In Texas v. Johnson (1989), many Supreme Court observers were surprised that Justices _____ and _____ joined the majority. *a. Scalia; Kennedy b. O’Connor; Kennedy c. Souter; Scalia d. O’Connor; Scalia 11. In Texas v. Johnson (1989), many Supreme Court observers were surprised that Justice _____ joined the dissenters. a. Chief Justice Rehnquist *b. Justice Stevens c. Justice O’Connor d. Justice White

12. In Whitney v. California, Ms. Whitney was convicted of violating California’s law against _____. a. harboring a fugitive *b. criminal syndicalism c. voter fraud d. distributing obscene materials 13. Benjamin Gitlow was a member of _____. a. the Communist party b. the Democratic party c. the Republican party *d. the Socialist party 14. The author of the plurality opinion in Dennis v. United States was ____. a. Chief Justice Warren b. Chief Justice Hughes c. Chief Justice Stone *d. Chief Justice Vinson 15. The defendants in Dennis v. United States had been convicted of violating the _____. a. Solomon Amendment b. the Enforcement Act of 1870 *c. The Smith Act of 1940 d. none of the above 16. In New York Times v. United States (1971), the Supreme Court _____ a lower court injunction prohibiting newspapers from publishing _____. a. affirmed; the Pentagon Papers *b. struck down; the Pentagon Papers c. struck down; excerpts from the Watergate recordings d. affirmed; excerpts from the Watergate recordings 17. Walker v. Texas Division, Sons of Confederate Veterans, Inc. involved _____. a. a statue of General Robert E. Lee in a town park b. burning of a Confederate flag *c. government speech d. none of the above

Essay Questions 1. Dennis v. United States, decided in 1952, stands not far from the mid-point in the span of years that the Supreme Court has seriously considered the free speech clause of the First Amendment. The Court’s encounters began in 1919 and have continued to the present day. a. Explain fully the opinion of Chief Justice Vinson, the separate opinion of Justice Frankfurter, and the dissenting opinions of Justices Black and Douglas. b. Of the three positions represented by those four opinions, which one (or ones) seems to have been most sounded rejected by the Court’s decision in Brandenburg v. Ohio (1969)? Explain.

2. Suppose the following situation: The local city Council decides to consider legislation prohibiting various kinds of harassment. One part of the proposed ordinance borrows language from the student code of a nearby college.

Criminal penalties will be imposed for “conduct likely to constitute harassment ... including but not limited to exhibiting, distributing, posting, or advertising publicly offensive, indecent, or abusive matter concerning any person or group of persons in the [City of Happyvale]; [and] employing racial, sexual, ethnic, sexual orientation, religious, or personal slurs or epithets.....”

Write an essay assessing the constitutionality of this part of the ordinance from the perspective of each justice’s opinion listed below.

Justice Sanford, in Gitlow v. New York.

Justice Brandeis, in Whitney v. California Justice Frankfurter, in Dennis v. United States Justice Brennan, in Texas v. Johnson 3. In what respects do Gitlow v. New York and Brandenburg v. Ohio represent polar opposite approaches to interpretation of the First Amendment?

4. During recent decades in several cases involving symbolic speech and protest, the United States Supreme Court has declared (a) that one does not have a right under the First Amendment to burn one's draft card; (b) that one does have a right under the First Amendment publicly to burn (or otherwise deface) an American flag; and (c) that one sometimes (but sometimes not) has a right under the First Amendment to engage in KKK-style cross-burning. In these cases, has the Court been confused in terms of applying the First Amendment, or is there a theoretical (doctrinal) consistency lurking within these contrary outcomes? Explain. (Be sure that your answer refers to, and explains, the relevant cases.)

5. Consider Chief Justice Vinson’s plurality opinion in Dennis v. United States alongside Justice Brandeis’s concurring opinion in Whitney v. California. Which is more protective of freedom of speech? Why? Explain. a. What constitutional issue confronted the Court in Dennis v. United States (1951)? b. How was the case decided? Explain. c. What does Justice Frankfurter’s concurring opinion in the case reveal about his view of the proper role of the Supreme Court in the resolution of conflicts between governmental power and individual rights? Explain.

6. Consider Good News Club v. Milford Central School (2001) alongside Clark v.

Community for Creative Non-Violence (1984). What common First Amendment problem concerning free speech do these cases present? Why is it that the First Amendment claim prevailed in one case but not in the other? Explain. Might Milford Central School arguably have based its denial of permission on the Establishment Clause? Explain.

7. Why are prior restraints deemed more harmful to free expression than “subsequent punishment”?

8. Justice Robert Jackson said a long time ago that the Constitution was not a suicide pact, meaning that he thought protection of no single provision of the Constitution to be more important than survival of the political system itself. (President Lincoln would have agreed.) In the Pentagon Papers case, did the Court reject the Jackson/Lincoln position?

9. In the Pentagon Papers Case, what would the government have had to show to win five votes for its position?

10. In the Pentagon Papers Case, what was Justice Harlan’s answer to the problem the case confronted?

11. Justice Black (as his dissent in Dennis and his concurrence in the Pentagon Papers case suggest) developed a reputation as an “absolutist” on the First Amendment.

How, then, do you account for his vote with the majority in United States v.

O’Brien?

12. In what way did New Jersey’s public accommodations statute infringe the expressive association right of the BSA in Dale? Does FAIR seem to be at odds with Dale? Why? 13. Why did the protestors in CCNV lose their public forum claim, while the group in Good News Club won theirs? Was the Court just being inconsistent? Explain.

14. What does the Court usually mean by the right of “expressive association?” What role did this right play in the outcomes of Boy Scouts of America v. Dale and Rumsfeld v. Forum for Academic and Institutional Rights? Explain. Make sure that your essay demonstrates an understanding of both cases.

15. Explain the role of government speech in the outcome of Walker v. Texas Division, Sons of Confederate Veterans, Inc.

TWELVE

Religious Liberty Multiple Choice 1. In West Virginia Board of Education v. Barnette (1943), the Supreme Court _____. *a. struck down a state law that compelled public-school students to salute the American flag b. struck down a state law that compelled public-school students to recite the Lord’s Prayer c. exempted children of Amish families from compulsory-school attendance regulations d. upheld a state law that compelled public-school students to recite the pledge of allegiance because it “imbued citizenship” 2. _____ was the first case in which the Supreme Court applied the Establishment Clause to the states via the Fourteenth Amendment. a. Cantwell v. Connecticut (1940) *b. Everson v. Board of Education (1947) c. Abington v. Schempp (1963) d. Sherbert v. Verner (1963) 3. _____ was the first case in which the Supreme Court applied the Free Exercise Clause to the states via the Fourteenth Amendment. *a. Cantwell v. Connecticut (1940) b. Everson v. Board of Education (1947) c. Abington v. Schempp (1963) d. Schenck v. United States (1919) 4. Which justice was most clearly identified with the view that government may accommodate religious practices? _____ a. Hugo Black b. Robert Jackson c. William Brennan *d. William Rehnquist 5. The Supreme Court struck down public-school-sponsored Bible readings and prayers in _____. *a. Abington v. Schempp (1963) b. Lemon v. Kurtzman (1971) c. Everson v. Board of Education (1947) d. Engel v. Vitale (1962)

6. Which of the following is not a prong of the Lemon test? _____ a. The challenged law or practice must have a secular purpose. b. The challenged law or practice may not have the primary effect of advancing or inhibiting religion. *c. The challenged law or practice must guarantee the absolute separation of government from religion. d. The challenged law or practice may not lead to an excessive entanglement between church and state.

7. In Wallace v. Jaffree (1985), the Supreme Court _____ an Alabama law that required students in public schools to _____. a. reviewed; recite an official prayer composed by the state board of education b. upheld; study “creation science” as well as the theory of evolution *c. struck down; observe a moment of silence at the start of each school day d. struck down; remain silent during graduation prayers 8. In Employment Division v. Smith (1990), the Supreme Court _____ a claim by _____ that their ritualistic use of _____ constituted free exercise of religion. a. accepted; Satanists; animal sacrifice *b. rejected; Native Americans; peyote c. accepted; Native Americans; peyote d. rejected; Satanists; animal sacrifice 9. The test from Lemon v. Kurtzman was strengthened in Agostini v. Felton_____. a. TRUE *b. FALSE 10. The holding in Santa Fe v. Doe is consistent with the holding in Abington v.

Schempp. ______ *a. TRUE b. FALSE 11. Zelman v. Simmons-Harris concerned ______. *a. school vouchers b. Bible reading in public schools c. prayer at high school football games d. a nativity scene on public property 12. McCreary County v. A.C.L.U. involved ______. a. prayer in public schools b. a Christmas tree in a county courthouse *c. a display containing the Ten Commandments d. none of the above

13. Section 5 of the Fourteenth Amendment grants Congress the authority to legislate in the field of _____. a. eminent domain b. presidential power *c. civil rights d. international relations 14. Town of Greece v. Galloway involved _____. a. a nativity scene in a municipal park b. a Christmas display in front of city hall *c. prayer at monthly meetings of the town’s governing board d. none of the above 15. In Town of Greece v. Galloway the opinions focused heavily on the Court’s prior decision in______. *a. Marsh v. Chambers b. West Virginia Board of Education v. Barnette c. Abington Township v. Schempp d. Santa Fe v. Doe Essay Questions 1. Does Zelman logically follow from Agostini? Explain.

2. What element of Schempp do you find in Lemon? Explain.

3. What noteworthy change in the law of the First Amendment was brought about by Sherbert v. Verner?

4. In Employment Division v. Smith, how could Justice O’Connor employ the reasoning from Sherbert to arrive at the result Justice Scalia reached in Smith?

5. What role for the Supreme Court in the American political system does Justice Frankfurter articulate in his majority opinion and his dissenting opinion in the two Flag Salute Cases (Minersville School District v. Gobitis, and West Virginia Board of Education v. Barnette)?

6. In Minersville School District v. Gobitis (1940), both Justice Stone and Justice Frankfurter professed adherence to the spirit of Footnote 4. Can both be right?

Discuss.

7. In what ways do Sherbert v. Verner (1963) and Employment Division v. Smith (1990) present contrasting interpretations of the free exercise clause of the First Amendment?

8. In light of Smith, what intriguing constitutional problem is posed by the Religious Freedom Restoration Act of 1993?

9. The past four decades have witnessed substantial changes in the constitutional definition of religious liberty, in the context of both the establishment and free exercise clauses. Discuss this phenomenon by examining either Lemon v.

Kurtzman (1971) and Agostini v. Felton (1997)—both of which deal with government assistance to church-supported schools—or by examining Sherbert v.

Verner (1963), Employment Division v. Smith (1990), and City of Boerne v.

Flores (1997)—all three of which concern the limits of the free exercise clause.

10. Dissenting in Lemon v. Kurtzman, Justice White wrote, “The Court … creates an insoluble paradox for the State and the parochial schools.” What was the paradox to which White referred? To what extent does Agostini v. Felton erase the paradox? Explain.

11. Consider Justice Stewart’s concurring opinion in Sherbert v. Verner. There, he writes that the Court’s interpretation of the Establishment Clause was on a collision course with its interpretation of the Free Exercise Clause, as the latter was unfolded in Sherbert. What did Stewart mean? Do you agree? (Among other things, make sure that you essay demonstrates your understanding of the Sherbert case.)

12. In Zelman v. Simmons-Harris, had the Court based its decision on Lemon v.

Kurtzman, how would Zelman probably been decided? Why? Explain.

13. Is the Supreme Court’s decision in McCreary County v. A.C.L.U. (2005) consistent with its ruling in Santa Fe Independent School District v. Doe (2000)?

Explain.

14. What constitutional issue did the Court encounter in Santa Fe Independent School District v. Doe (2000)? a. How was the case decided? Explain. b. May the case be seen in a way to illustrate tension between the free exercise and establishment clauses of the First Amendment? Explain.

15. What question did the Supreme Court decide in Sherbert v. Verner (1963)? What was the Court’s decision? Does Footnote Four from United States v. Carolene Products Co. (1938) seem relevant to this case? Explain.

16. What redirection in the constitutional law of religious liberty occurred in Employment Division v. Smith? Explain. Had Justice Blackmun (who authored the dissent in Smith) been able to write for the majority instead, would Alfred Smith and Galen Black probably have emerged victorious in the litigation? Why?

THIRTEEN

Privacy Multiple Choice 1. In Griswold v. Connecticut (1965), Chief Justice/Justice _____ wrote, “The Constitution makers knew the need for change and provided for it. Amendments . . . can be submitted to the people . . . for ratification. That method of change was good enough for our Fathers, and being somewhat old-fashioned I must add that it is good enough for me.” a. William O. Douglas b. Earl Warren c. Felix Frankfurter *d. Hugo Black 2. In _____, the Supreme Court specifically held that the right of privacy “is broad enough to encompass a woman’s decision whether . . . to terminate her pregnancy.” a. Griswold v. Connecticut (1965) b. Maher v. Roe (1977) c. Planned Parenthood v. Casey (1992) *d. Roe v. Wade (1973) 3. Chief Justice/Justice _____ articulated the “trimester approach” for legal abortions. a. Warren Burger b. Earl Warren *c. Harry Blackmun d. William Brennan 4. In Planned Parenthood v. Casey (1992), the Supreme Court struck down a state requirement that a married woman seeking an abortion must _____. a. wait 24 hours before undergoing the procedure *b. notify her husband of her intentions c. undergo a psychiatric evaluation d. give her “informed consent” 5. In Bowers v. Hardwick (1986), the Supreme Court _____. a. struck down a state law that making it a crime to engage in homosexual sodomy *b. upheld a state law as applied to homosexual sodomy c. upheld a state law as applied to heterosexual sodomy d. struck down a state law prohibiting single-sex marriages

6. In Cruzan v. Missouri Health Department (1989), the Supreme Court held that a state must demand the clear and convincing evidence standard as a means of guarding against potential abuses of the “substituted judgment” doctrine. _____ a. TRUE *b. FALSE 7. Lawrence v. Texas involved ____. a. a woman who wanted an abortion b. a woman arrested for consensual sex with another woman c. a man and a woman arrested for indecent exposure *d. a man arrested for having consensual sex with another man.

8. Washington v. Glucksberg involved ____. a. consensual sodomy *b. assisted suicide c. an abortion law d. symbolic speech 9. Gonzales v. Carhart involved _____. a. flag protection b. assisted suicide *c. late term abortions d. none of the above 10. Chief Justice/Justice______ wrote the Court’s opinion in Gonzales v. Carhart a. Roberts b. Alito c. Rehnquist *d. Kennedy 11. Gonzales v. Carhart involved a statute similar to one the Court had struck down in 2000 in ____. a. Roe v. Wade b. Washington v. Glucksberg *c. Stenberg v. Carhart d. Lawrence v. Texas 12. What term or phrase from astronomy did Justice Douglas place at the center of his opinion in Griswold v. Connecticut? _____ a. eclipse b. planetary *c. penumbra d. orbit

13. Obergefell v. Hodges (2015) involved _____. a. birth control b. late term abortions *c. same sex marriage d. physician-assisted suicide 14. Dissenting justices in Obergefell v. Hodges (2015) included ______. a. Sotomayor and Alito b. Breyer and Scalia c. Ginsburg and Kennedy *d. Roberts and Thomas 15. In Whole Woman’s Health v. Hellerstedt (2016), the challenged legislation regulated picketing near abortion providers.______ a. TRUE *b. FALSE 16. In Whole Woman’s Health v. Hellerstedt (2016), the majority included ____. a. Alito and Breyer b. Sotomayor and Thomas *c. Kennedy and Kagan d. Ginsburg and Roberts Essay Questions 1. What issue did the Supreme Court confront in Washington v. Glucksberg (1997)?

What did the Court decide? Explain.

2. Why would the attorneys who participated in Washington v. Glucksberg have placed heavy reliance in their briefs on Planned Parenthood v. Casey (1992)?

Explain.

3. In light of the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), what is particularly remarkable about the majority’s holding in Gonzales v. Carhart (2007)? Explain.

4. In his opinion for the Court in Gonzales v. Carhart (2007), Justice Kennedy insists that the Court remains faithful to Planned Parenthood of Southeastern Pennsylvania v. Casey, even as Justice Ginsburg in her Carhart dissent insists that the Carhart majority refuses to take Casey “seriously.” Who is correct? Why? Recall that Kennedy coauthored the joint opinion in Casey.

5. You are a member of the Supreme Court when Lawrence v. Texas is argued and decided. At conference, the majority decides to rule in favor of Lawrence, as of course occurred. However, the majority decides to rest its decision for Lawrence on the Equal Protection Clause, instead of on the Due Process Clause of the Fourteenth Amendment, as actually happened. You are assigned the task of writing the opinion of the Court. That means that you must draft an opinion holding as the Court held in Lawrence, but one that rests the holding on the Equal Protection Clause, instead of the Due Process Clause. In this context, write a concise draft of what you will circulate to the members of the Court, using the Equal Protection Clause.

6. Assume that the Court based its decision in Lawrence on the equal protection clause. In light of Cleburne v. Cleburne Living Center (1985) and Romer v. Evans (1996) what level of scrutiny might the Court have employed? Why? Explain.

7. After Planned Parenthood of Southeastern Pennsylvania v. Casey, do laws regulating and/or forbidding abortions implicate a “fundamental right” in American constitutional law? Explain. When Justice Blackmun retired from the Supreme Court a few years later, what was left of his handiwork in Roe v. Wade?

Explain.

8. On the basis of Justice Kennedy’s vote in Casey, how do you account for his position in Carhart? Explain.

9. In Lawrence v. Texas, what is Justice Kennedy’s assessment of Justice White’s opinion in Bowers v. Hardwick? Explain.

10. In Griswold, on what did Justice Goldberg prefer to ground the constitutional right of privacy? Explain.

11. In Griswold v. Connecticut, what point did Justice Stewart make in his dissent?

12. Consider Justice Black’s dissent in Griswold v. Connecticut. Is it consistent with his views in Adamson v. California? Katz v. United States? Discuss.

13. In Griswold v. Connecticut, how would Justice Harlan have grounded the constitutional right to privacy? Explain.

14. In Whole Woman’s Health v. Hellerstedt (2016), what two regulations had the Texas legislature imposed on abortion providers? Explain.

15. Besides being pleased with the outcome in Whole Woman’s Health v. Hellerstedt (2016), why were defenders of abortion rights especially pleased with Justice Breyer’s analysis of the state regulations under review in that case?

FOURTEEN

Equal Protection of the Laws Multiple Choice 1. Justice William O. Douglas was the first to make the case for heightened judicial scrutiny under the equal protection clause of legislation affecting fundamental rights in _____, where the Supreme Court struck down a state law providing for the compulsory sterilization of criminals. *a. Skinner v. Oklahoma (1942) b. Buck v. Bell (1927) c. Jacobsen v. Massachusetts (1905) d. Shelley v. Kraemer (1948) 2. The “suspect classification” doctrine originated in _____. a. English common law *b. Korematsu v. United States (1944) c. Plessy v. Ferguson (1896) d. The Civil Rights Cases (1883) 3. In the Civil Rights Cases (1883), the Supreme Court reasoned that _____. *a. the Fourteenth Amendment prohibited state discrimination only b. the Fourteenth Amendment prohibited state and private discrimination c. the Civil Rights Act of 1875 was a legitimate exercise of congressional authority d. Section 5 of the Fourteenth Amendment authorized Congress to eradicate all forms of racism 4. In Plessy v. Ferguson (1896), the Supreme Court upheld a Louisiana law requiring racial segregation _____. a. in public schools *b. in railroad cars c. in courtrooms d. in the state legislature 5. Before Brown v. Board of Education was reargued in 1953, Chief Justice _____ died and was replaced by Earl Warren. a. William Howard Taft b. Charles Evans Hughes c. Harlan F. Stone *d. Fred M. Vinson

6. In _____, the Supreme Court struck down segregated schools in the District of Columbia, noting that the Fifth Amendment’s Due Process Clause incorporated the Fourteenth Amendment’s equal protection guarantee and was thus applicable to the federal government. a. Milliken v. Bradley (1974) b. Alexander v. Holmes County (1969) *c. Bolling v. Sharpe (1954) d. Cooper v. Aaron (1957) 7. The difference between de facto segregation and de jure segregation is that _____. a. de facto segregation is instituted by law, while de jure segregation occurs in practice *b. de jure segregation is instituted by law, while de facto segregation occurs in practice c. the Constitution specifically prohibits de facto segregation but not de jure segregation d. the Constitution specifically allows de jure segregation but not de facto segregation 8. In Regents of the University of California v. Bakke (1978), the Supreme Court held that _____. *a. racial quotas were impermissible, but race could be a factor in admissions policies b. affirmative action programs discriminated against undeserving individuals c. racial quotas were an acceptable method of overcoming past discrimination d. for more than a century and a half, the Constitution had not been color-blind 9. In _____, the Supreme Court in a plurality opinion declared gender discrimination to be a _____ category for applying the Equal Protection Clause. a. Reed v. Reed (1971); suspect *b. Frontiero v. Richardson (1973); suspect c. Craig v. Boren (1976); quasi-suspect d. Mississippi University for Women v. Hogan (1982); suspect 10. In Plessy v. Ferguson, Justice Harlan insisted that the Constitution _____. a. tolerated racial distinctions in the law b. required racial segregation c. barred discrimination against women *d. was color blind 11. Loving v. Virginia (1967) involved ______. a. a state’s affirmative action program b. a police department’s racial profiling *c. a state’s anti-miscegenation law d. racial segregation in public schools

12. When Loving v. Virginia (1967) was decided, the Supreme Court divided 5‒4. ____ a. TRUE *b. FALSE 13. When Fisher v. University of Texas at Austin (2016) was decided, the Supreme Court divided 5‒4. ____ a. TRUE *b. FALSE 14. Fisher v. University of Texas at Austin (2016) was the Supreme Court’s first decision on affirmative action in higher education since Regents v. Bakke (1978). _____ a. TRUE *b. FALSE 15. According to Justice Kennedy’s majority opinion in Fisher v. University of Texas at Austin (2016) the admissions plan challenged in that case had been adopted by the university specifically in response to the Supreme Court’s decision in _____. a. Gratz v. Bollinger b. Regents v. Bakke c. Loving v. Virginia *d. Grutter v. Bollinger 16. Considering the positions of the justices who took part in deciding Fisher v.

University of Texas at Austin (2016), one would expect these members of the Court to vote to uphold public university affirmative action programs that might be challenged in future cases: ____. a. Justice Alito and Justice Thomas *b. Justice Breyer and Justice Ginsburg c. Chief Justice Roberts and Justice Kagan d. Chief Justice Roberts and Justice Sotomayor Essay Questions 1. How did contrasting views of “state action” affect the votes and opinions of Chief Justice Burger (for the majority) and Justice Marshall (for the dissenters) in Milliken v. Bradley? Discuss.

2. A city council enacts an employment policy that requires firefighters on the municipal payroll to retire at age 52. While such a policy is not necessarily invalid under federal age discrimination laws, a 55-year-old firefighter adversely affected by the new rule files suit against the city on Fourteenth Amendment equal protection grounds.

a. Faced with a claim of a constitutionally impermissible classification, a judge may choose among three tests, or levels of scrutiny, that have been developed by the U.S. Supreme Court. Identify and explain each of these tests. b. On the basis of his separate opinion in Cleburne v. Cleburne Living Center, how would Justice Stevens go about evaluating the validity of the firefighter’s claim?

3. Concurring in the result in Lawrence v. Texas (2003), Justice O'Connor stated that the case should have been decided on equal protection grounds, and not on the basis of a due process right to privacy that the rest of the majority preferred. In what sense might Lawrence be seen as an equal protection case?

4. How do Justice Brennan’s plurality opinion in Frontiero v. Richardson and the same justice’s majority opinion in Craig v. Boren illustrate distinctly different ways of responding to allegations of unconstitutional gender discrimination?

Explain. (Make sure that your essay demonstrates a thorough understanding of both cases.)

5. Aside from the issue of jurisdiction—present in every case before the Supreme Court—what two questions were presented to, and answered by, the Court in Cleburne v. Cleburne Living Center (1985)? Explain. Which party won the case?

Why? 6. What important impact (by way of expansion) did Shapiro v. Thompson (1969) have on the Supreme Court’s interpretation of the Equal Protection Clause?

Explain.

7. Justice Breyer wrote the principal dissent in Parents Involved v Seattle School District No.1 (2007). What were his main points in that dissent? Explain.

8. What “test” emerged from Craig v. Boren (1977)? In what way do you find part of the origin of this test in United States v. O’Brien (1968)? Explain.

9. In light of the Brown decisions in 1954 and 1955, how do you account for the Seattle decision in 2007? Is the latter consistent with the former?

10. According to Brown, what is the source of the constitutional violation in racially segregated schools: Separation of the races itself or the state’s requirement that the races be separate? What are the practical consequences of each view?

11. Is Justice Harlan’s “colorblind” principle visible at all in the two Michigan affirmative action cases? If so, how?

12. What argument did the Court reject in San Antonio Independent School District v.

Rodriguez?

13. What created the state action problem for the Harrisburg Moose Lodge in its dispute with Mr. Irvis? Which side won the case? Why? 14. In Loving v. Virginia (1967), can the state law that was challenged be seen as an illustration of a requirement of “separate but equal”? Explain.

15. In Fisher v. University of Texas at Austin (2016), Justice Alito begins his dissent by writing, “Something strange has happened since our prior decision in this case.” What did he mean? To what was he referring? Explain.

FIFTEEN

Security and Freedom in Wartime Multiple Choice 1. United States v. United States District Court involved _____. a. electronic surveillance b. presidential power c. Title III of the Crime Control Act of 1968 *d. all of the above 2. In United States v. United States District Court, the Supreme Court ruled_____. a. 9–0 *b. 8–1 c. 6–3 d. 5–4 3. Justice _______ wrote the opinion of the Court in United States v. United States District Court. a. Rehnquist b. Blackmun c. Douglas *d. Powell 4. “Inter arma silent leges” means _____. a. in time of war the laws must be observed b. during wartime, victory must be secured at all costs *c. in time of war the laws are silent d. in time of war the laws are rarely silent 5. Ex parte Milligan arose as a result of _____. a. World War II b. the Vietnam War c. the invasion of Afghanistan by United States *d. the Civil War 6. The opinion of the Court in Ex parte Milligan was written by _____. a. Chief Justice Chase b. Chief Justice Waite c. Justice Grier *d. Justice Davis

7. Korematsu v. United States is often cited as the initial articulation by the Court of ___. a. fundamental fairness *b. strict scrutiny c. due process of law d. none of the above 8. In Korematsu v. United States, Justice Jackson argues in his opinion that ____. a. the government’s policy is unconstitutional b. the government’s policy is constitutional *c. the Court should never have agreed to hear the case d. war is a series of hardships 9. In Korematsu v. United States, Justice Murphy declared ____. a. that the government’s policy was lawful b. that the government’s policy was unfortunate but necessary *c. that the government’s policy was racist d. that the Court should never have agreed to hear the case 10. Boumediene v. Bush involved a challenge to ____. a. the Patriot Act b. the Crime Control Act of 1968 c. The Geneva Convention *d. The Military Commission Act 11. Sneak and Peak Search Warrants are authorized by ____. a. the Foreign Intelligence Surveillance Act b. the Crime Control Act *c. the Freedom Act d. the Authorization for Use of Military Force 12. _________ was a case arising from World War II that was the focus of both the majority and dissenting opinions in Boumediene v. Bush. a. Ex parte Quirin b. Ex parte Milligan *c. Johnson v. Eisentrager d. None of the above 13. Justice/Chief Justice _____ wrote the Court’s majority opinion in Korematsu v.

United States. a. Stone b. Douglas *c. Black d. Murphy

14. The Patriot Act became law became law because of growing congressional concern over illegal immigration. _____ a. TRUE *b. FALSE 15. The Freedom Act repealed most of the provisions in the Patriot Act. _____ a. TRUE *b. FALSE 16. In ________ Justice Scalia wrote that “America is at war with radical Islamists.” a. Korematsu v. United States b. United States v. United States District Court *c. Boumediene v. Bush d. Ex parte Quirin Essay Questions 1. What issues of constitutional and statutory interpretation did the Supreme Court confront in United States v. United States District Court? How were these resolved? Explain.

2. How is United States v. United States District Court anticipated by the exchange between the concurring opinions of Justices White and Douglas in Katz v. United States?

3. Within the past few years, the Supreme Court has ruled on a number of challenges to claim made by the administration of George W. Bush that it had the power to detain indefinitely U.S. citizens held as “enemy combatants”; and to detain indefinitely and try by military tribunal, without and with limited appeal, foreign nationals who had been seized on battlefields and held at Guantanamo Bay, Cuba.

These cases—Hamdi v. Rumsfeld (2004), Rasul v. Bush (2004), Hamdan v.

Rumsfeld (2006), and Boumediene v. Bush (2008)—illustrate well the basic constitutional dilemma in enforcing constraints on presidential power to wage war. Focusing primarily on the last two cases, discuss the Court’s conclusions, explaining the applicable presidential directives, laws, treaties, writs, and precedents. To what extent do these cases demonstrate that restraints on presidential power to wage war remain in the hands of Congress?

4. To what degree does Boumediene v. Bush show that the Constitution places considerable restraints on Congress, not only on the president in matters of national security?

5. On the day that the Court released its opinion in Ex parte Quirin, Attorney General Francis Biddle wrote a memo to President Roosevelt summarizing the main points of the decision. Noting that the Court had distinguished Ex parte

Milligan, Biddle declared, “Practically then, the Milligan case is out of the way and should not again plague us.” Did Quirin truly set Milligan “out of the way”?

6. In Korematsu v. United States, how do the opinions of Justices Black and Murphy differ in terms of the standard that must be met in order to justify an abridgement of constitutionally protected liberties?

7. Estimate the probable impact on civil liberties had the government prevailed in U.S. v. U.S. District Court.

8. With respect to judicial oversight of executive authority, what role is envisioned by the opinions of Justices Kennedy and Scalia in Boumediene v. Bush?

9. In New York Times Co. v. United States, what role for the judiciary does Justice Black envisage? Justice Harlan? Explain.

10. What fundamental question did Boumediene v. Bush present to the Supreme Court? How did the majority answer that question? Explain.