Test Bank Constitutional Law Governmental Powers and Individual Freedoms, Updated Edition, 4th Editi

Constitutional Law Governmental Powers and Individual Freedoms, Updated Edition, 4th Edition by Daniel E Hall John P Feldmeier Chapter 1 Introduction to Constitutional Law MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which of the following Chief Justices of the Supreme Court was responsible for writing the majority opinion in Marbury v. Madison, wherein the power of judicial review was announced?

1)

A) Rehnquist B) Jay C) Warren D) Marshall 2) Under the leadership of which of the following Chief Justices did the Supreme Court render many decisions advancing civil liberties, especially in the criminal context?

2)

A) Warren B) Rehnquist C) Marshall D) Jay 3) What was William Marbury seeking from the Supreme Court in Marbury v.

Madison?

3)

A) Writ of Mandamus B) Writ of Certiorari C) Temporary Restraining Order D) Money Damages 4) During what era of the Court did the justices dramatically expand the liberty protections afforded to individuals under the Fourth Amendment?

A) Rehnquist Court B) Warren Court C) New Deal Era D) Taney Court

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4)

5) In which era did the U.S. Supreme Court begin to expand the powers of the federal government?

5)

A) Taney Court B) Pre-New Deal Era C) Rehnquist Court D) Marshall Court 6) Who is the current Chief Justice of the Supreme Court?

6)

A) William Rehnquist B) John Roberts C) Sandra Day O’Connor D) Antonin Scalia 7) In which case did the U.S. Supreme Court assert the power of judicial review over the decisions of the states’ high courts?

7)

A) Marbury v. Madison B) Dred Scot v. Sandford C) Martin v. Hunter’s Lessee D) United States v. Nixon 8) What document governed the United States prior to the ratification of the U.S. Constitution?

8)

A) Declaration of Independence B) Articles of Confederation C) Contract with America D) U.S. Code 9) During the early years of the Constitution, which group championed a stronger centralized government?

A) Anti-Federalists B) Confederates C) Tea Party D) Federalists

9

9)

10) Each of the following contributed to the need for drafting a new Constitution in 1787 EXCEPT:

10)

A) State competition over taxes.

B) Shays Rebellion.

C) U.S. government too strong.

D) Fear of foreign invasion.

11) A legislative act that inflicts capital punishment upon named persons without a judicial trial is called a(n):

11)

A) Ex post facto law.

B) Bill of Attainder.

C) Act of Sedition.

D) Habeas Corpus.

12) A law that makes someone criminally liable for an act that was not criminal at the time it was committed is called a(n):

12)

A) Ex post facto law.

B) Bill of Attainder.

C) Act of Sedition.

D) Habeas Corpus.

13) A writ whose purpose is to obtain immediate relief from illegal imprisonment by having the “body” (that is, the prisoner) delivered from custody and brought before that court is called:

13)

A) Ex post facto law.

B) Bill of Attainder.

C) Act of Sedition.

D) Habeas Corpus.

14) Today, a series of eighty-five articles that were published under the pseudonym Publius in magazines and newspapers urging the ratification of the new Constitution are known as the: A) Declaration of Statehood.

B) Communist Manifesto.

C) Articles of Confederation.

D) Federalist Papers.

14)

15) A term referring to the concept that there exists, independent of manmade law, a law laid down (depending upon one’s beliefs) by God or by nature, which human society must observe in order to be happy and at peace is referred to as:

15)

A) Divine Province.

B) Manifest Destiny.

C) Natural Law. D) Aaron’s Law. 16) In U.S. v. Nixon, the Supreme Court considered what item of evidence?

16)

A) Vietnam information B) William Marbury’s commission C) Iran Contra Affair D) Watergate tapes 17) The landmark ruling in Brown v. Board of Education occurred during which judicial era?

17)

A) New Deal Era B) Taney Court C) Rehnquist Court D) Warren Court 18) What is the name of the official publication for U.S. Supreme Court cases published by the federal government?

18)

A) Lawyer’s Edition B) Supreme Court Reporter C) Federal Reporter D) United States Reports 19) What is the name of the publication for cases from the United States Courts of Appeals?

A) Federal Reporter B) United States Reports C) Supreme Court Reporter D) Lawyer’s Edition

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19)

20) What is the name of the publication for cases from the United States District Courts?

20)

A) Federal Appendix B) Federal Supplement C) Federal Reporter D) Northeast Reporter TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) The mandate of the delegates to the Philadelphia Convention of 1787 from their states was to draft a new constitution.

21)

22) The national government under the Articles of Confederation did not have the power to directly tax citizens.

22)

23) A federalist was a person who supported creating a strong, centralized government.

23)

24) Of the thirteen original states, only Massachusetts was not represented at the Philadelphia Constitutional Convention.

24)

25) James Madison wrote the Virginia Plan, which would be the working document of the Philadelphia Constitutional Convention.

25)

26) The decision of the delegates to the Philadelphia Constitutional Convention to have the President of the United States elected through the electoral college is known as the Great Compromise.

26)

27) The first state to ratify the Constitution was Delaware.

27)

28) There are two methods to amend the Constitution and both have been used.

28)

29) Having a written constitution that recognizes individual rights guarantees that the rule of law exists in all countries.

29)

30) The rule of law is the principle that all people and the government itself are obliged to follow legitimately enacted and fairly enforced laws.

30)

31) During the Taney Court area, the U.S. Supreme Court’s philosophy changed from strongly nationalist to one favoring states’ rights.

31)

32) During the Rehnquist Court area, the U.S. Supreme Court took a very liberal approach to economic and states’ rights.

32)

33) In Marbury v. Madison, the U.S. Supreme Court used judicial review to nullify an act of Congress.

33)

34) The U.S. Supreme Court does not have the authority to declare an act of

34)

the President unconstitutional.

35) The higher the court is, the more likely it is that its decisions will be published.

35)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

36) A(n) government.

is a person who supports a strong, centralized

36)

37) The Federalist written by James Madison, Alexander Hamilton, and John Jay, are a series of eighty-five articles under the pseudonym Publius making forceful arguments in support of the Constitution

37)

38) The concept that there exists, independent of manmade law, a law laid down by God or by nature, which human society must observe in order to be happy and at peace is known as the law.

38)

39) Philosophers, such as John Locke and Charles Montesquieu, advanced the theory that sovereignty rests not with the monarch but with the .

39)

40) American constitutional law is commonly divided into two fields of study: one focusing on governmental authorities and structures and another examining liberties.

40)

41) Judicial is the power of the judiciary, as the final interpreter of the law, to declare an act of a coordinate governmental branch of state unconstitutional.

41)

42) The first case where the U.S. Supreme Court used judicial review to invalidate federal action was v. Madison.

42)

43) The Court is known for establishing the supremacy of the national government over the state governments.

43)

44) During the Warren Court era, the U.S. Supreme Court held that is protected by the Constitution in Griswold v. Connecticut, 381 U.S. 479 (1965).

44)

45) Some of the important federalism cases decided during the era of the Court are United States v. Lopez, 115 S. Ct. 1624 (1995), and Morrison v. United States, 529 U.S. 598 (2000), both limiting Congress’s power over interstate commerce.

45)

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MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

46) ex post facto law

A) principle that all people and the government itself are obliged to follow legitimately enacted and fairly enforced laws

46)

47) rule of law

B) a legislative act that inflicts capital punishment upon named persons without a judicial trial

47)

48) anti-Federalist

C) a writ whose purpose is to obtain immediate relief from illegal imprisonment by having the “body” (i.e., the prisoner) delivered from custody and brought before that court

48)

49) habeas corpus

D) four federal laws enacted in 1798 in anticipation of war with France that required alien registration, empowered the president to deport all aliens from nations that were at war with the United States

49)

50) bill of attainder

E) a right existing under natural law, independent of manmade law

50)

51) Federalist

F) the power of the judiciary, as the final interpreter of the law, to declare an act of a coordinate governmental branch of state unconstitutional

51)

52) natural law

G) a law making a person criminally liable for an act that was not criminal at the time it was committed

52)

53) judicial review

H) the concept that there exists, independent of manmade law, a law laid down by God or by nature, which human society must observe in order to be happy and at peace

53)

54) natural right

I)

a person who supports a strong, centralized government

54)

55) Alien and Sedition Acts

J) a person who opposes establishment of a strong, centralized government in favor of local control

55)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

56) What were the arguments against ratification of the U.S. Constitution?

57) The ideas of which philosophers served as a basis for the founding of the U.S. constitution?

58) How has the U.S. legal concepts of judicial review and a written constitution provided a basis for other countries to follow?

59) What impact did the Warren Court era leave on modern constitutional law?

60) If you were living at the time of the ratification of the U.S. Constitution, explain which political party you would support more: the Federalists or Anti-Federalists.

61) Which U.S. Supreme Court chief justice has left the greatest impact on the laws in the United States?

Explain your position.

1) D 2) A 3) A 4) B 5) D 6) B 7) C 8) B 9) D 10) C 11) B 12) A 13) D 14) D 15) C 16) D 17) D 18) D 19) A 20) C 21) FALSE 22) TRUE 23) TRUE 24) FALSE 25) FALSE

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26) FALSE 27) TRUE 28) FALSE 29) FALSE 30) TRUE 31) TRUE 32) FALSE 33) FALSE 34) FALSE 35) TRUE 36) Federalist 37) Papers 38) natural 39) people 40) civil 41) review 42) Marbury 43) Marshall 44) privacy 45) Rehnquist 46) D 47) A 48) E 49) C 50) B 51) E 52) D 53) C 54) B 55) A 56) During the debates in the state conventions, three common objections were made to the Constitution.

First, it was missing a bill of rights. Second, it emasculated the sovereignty of the states. Third, the delegates had exceeded their authority in replacing the Articles of Confederation. Delegates Luther Martin, Elbridge Gerry, and George Mason passionately opposed ratification.

57) The ideas of John Locke, Charles de Montesquieu, and Thomas Hobbes, including natural law theory, were a part of the delegates’ collective political ideology. The natural law theories were later used by

philosophers, such as John Locke and Charles Montesquieu, to advance theories of representative government, separation of powers, and use of the judiciary to protect individuals from governmental abuse. These philosophers advanced the theory that sovereignty rests not with the monarch but with the people. Natural law theories were the foundation of both the French Declaration of Rights and the French Revolution and their U.S. counterparts.

58) Constitutionalism has been one of the United States’s greatest exports. Nearly all nations of the world have adopted a written constitution, many using the U.S. Constitution as the model from which they constructed their own. The idea of rule of law, as actualized through judicial or other forms of constitutional review, has taken hold around the world as well. For example, India adopted judicial review in 1947 following its independence from Great Britain.

59) Chief Justice Earl Warren presided over a Court that is best known for its decisions protecting individual rights (civil liberties). Much constitutional law was established during the Warren Court era. Included in this Court’s decisions are the following: the invalidation of the separate but equal doctrine of Plessy; the finding that privacy is protected by the Constitution, in Griswold v.

Connecticut, 381 U.S. 479 (1965); the establishment of much of the First Amendment free speech law used today; and enhanced protection of the rights of persons accused of crimes.

60) Answers will vary.

61) Answers will vary.

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Chapter 2 Dividing Governmental Power MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which of thefollowing constitutional clauses has not contributed to the growth in federal power?

1)

A) Supremacy Clause of Art. VI. B) Commerce Clause C) Powers Clause of the Tenth Amendment D) Necessary and Proper Clause of Art. I 2) Which of the following was NOT intended to protect against tyranny?

2)

A) Federalism B) Checks and Balances C) Single Federal Executive D) Separations of Power 3) Assume that a state and the federal government hold concurrent jurisdiction over an issue and furthermore, both have enacted statutes to regulate the subject. However, the state statute is contrary to the federal law. The state law is:

3)

A) invalid as preempted by the federal law under the Supremacy Clause.

B) valid.

C) invalid as preempted by the Necessary and Proper Clause.

D) invalid as violating the dormant Commerce Clause.

4) Which model of federalism maintains the theory that the national government and the state governments are coequal sovereigns?

A) Competitive federalism B) Hierarchical federalism C) Dual Federalism D) Cooperative federalism

4)

5) Which model of federalism maintains the theory that the national government is supreme to the state governments and that he powers of the national government are read broadly, and the Tenth Amendment is read as not granting any specific powers to the states?

5)

A) Hierarchical federalism B) Competitive federalism C) Dual Federalism D) Cooperative federalism 6) What doctrine maintains that state laws that interfere with federal laws are invalid pursuant to the supremacy clause?

6)

A) States rights B) Preemption C) Sovereign Immunity D) War making 7) Which doctrine maintains the idea that state laws that unduly burden interstate commerce, even if the subject is unregulated by the national government, are invalid under federalism principles, because the regulation of interstate and foreign commerce belongs exclusively to the federal government?

7)

A) Dormant Commerce Clause B) Sovereign Immunity C) States rights D) Preemption 8) What power is traditionally held by states to make and enforce laws and regulations necessary to maintain and enhance the public welfare and to prevent individuals from violating the rights of others?

8)

A) Police power B) Inherent power C) Divine right D) Power of the purse 9) Federal executive orders are published in the:

9)

A) Federal Register.

B) U.S. Code.

C) U.S. Statutes.

D) Book of laws.

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10) Statutes passed by Congress are found in the:

10)

A) Federal Register.

B) U.S. Statutes.

C) Book of laws.

D) U.S. Code.

11) Law from English heritage, that relies on judges developing legal principles to guide their decision making based on customs and practices of the time is called:

11)

A) traditional law.

B) English law.

C) common law.

D) law of customs.

12) The doctrine of stare decisis et non quieta movera means:

12)

A) update your laws.

B) advance the law to fit societal needs.

C) stand by precedents.

D) make decisions quickly.

13) Federal rules or regulations are found in the:

13)

A) Code of Federal Regulations.

B) Statutes at Large.

C) U.S. Constitution.

D) U.S. Code.

14) Who has the power to confirm federal court judges nominated by the President?

14)

A) Senate B) both the House and the Senate C) House D) State Legislatures 15) Which article under the U.S. Constitution gives the power of the president to nominate federal court judges?

A) Article I B) Article II

15)

C) Article III D) Article IV 16) Which article under the U.S. Constitution sets forth the powers of Congress?

16)

A) Article I B) Article II C) Article III D) Article IV 17) Which article under the U.S. Constitution sets forth the powers of the President?

17)

A) Article I B) Article II C) Article III D) Article IV 18) Which constitutional amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”?

18)

A) Fifth Amendment B) Tenth Amendment C) First Amendment D) Fourth Amendment 19) Which article under the U.S. Constitution contains the Supremacy Clause?

19)

A) Article III B) Article VI C) Article IV D) Article I 20) Which of the following is an exclusive power of the federal government?

A) borrowing money B) taxing citizens C) coining money D) constructing roads

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20)

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) Federalism refers to the division of governmental powers into three branches, legislative, executive, and judicial.

21)

22) The Framers of the United States Constitution divided governmental power between the states and federal government, and between the three branches at the federal level, in order to prevent tyranny.

22)

23) The Constitution creates three independent branches of government at the federal level, each delegated certain powers that are held exclusively.

23)

24) The Framers intended for the federal government to have limited powers and the states to have those powers not delegated to the federal government.

24)

25) Under a dual federalism approach, the federal government is dominate and more powerful than the states.

25)

26) Under a cooperative federalism approach, the federal government is dominate and more powerful than the states.

26)

27) The so-called “police power” is generally a state power.

27)

28) Presidential executive orders have the authority of congressional enacted statues, assuming presidential authority over the subject regulated exists.

28)

29) The Bill of Rights was intended to be applied only against the national government.

29)

30) As a check on the president, the U.S. Supreme Court holds the authority of impeachment and removal.

30)

31) Through judicial review, the judiciary checks the president’s actions for constitutionality.

31)

32) Judges may be removed through impeachment by Congress.

32)

33) No branch is completely independent in the performance of its functions.

33)

34) Legislation that conflicts with the U.S. Constitution may be declared void by the President.

34)

35) State constitutions are the highest form of law for state law subjects.

35)

36) The common vehicle for presidential lawmaking is the executive order.

36)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) Federalism, separation of powers, and checks and balances are all intended to prevent and the usurpation of state sovereignty.

37)

38) Article I, Section 8, clause 18, commonly known as the Necessary and Proper , grants to Congress the power to make all laws “necessary and proper” for carrying out its constitutional responsibilities.

38)

39) Any state or local law that conflicts with the Constitution or a treaty of the United States is invalid because of the Clause found in Article VI of the U.S. Constitution.

39)

40) The powers to tax citizens, charter banks, and build roads are examples of powers between the federal and state governments.

40)

41) The president has been delegated the authority to nominate federal judges and other governmental officers, but the appointments are final only after confirmation by the .

41)

42) The president is the -in-chief of the military but Congress is responsible for declaring war.

42)

43) Legislation that conflicts with the U.S. Constitution may be declared void by the .

43)

44) Congress can vote.

44)

a presidential veto with a two-thirds majority

45) All executive orders are published in the Federal , a U.S. government publication of new regulations, executive orders and proclamations, notices by government agencies of impending action, and other documents required to be published by government agencies.

45)

46) Federal statutes enacted by Congress are organized by subject matter into the U.S. .

46)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

47) Federalism

A) the theory that the national government and the state governments are coequal sovereigns

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47)

48) Necessary and Proper Clause

B) Article I of the Constitution grants to Congress the power to make all laws “necessary and proper” for carrying out its constitutional responsibilities

48)

49) Incorporation.

C) the system by which the states of the United States relate to one another and to the federal government

49)

50) Dormant Commerce Clause Doctrine

D) the theory that the national government is supreme to the state governments

50)

51) Police Power

E) a right applied is applied against the states it is fundamental and necessary to an ordered liberty

51)

52) Preemption Doctrine

F) the power of government to make and enforce laws and regulations necessary to maintain and enhance the public welfare and to prevent individuals from violating the rights of others

52)

53) Commerce Clause

G) the idea that state laws that unduly burden interstate commerce, even if the subject is unregulated by the national government, are invalid under federalism principles, because the regulation of interstate and foreign commerce belongs exclusively to the federal government

53)

54) Hierarchical Federalism

H) doctrine that state laws that interfere with federal laws are invalid pursuant to the Supremacy Clause

54)

55) Dual Federalism

I)

the clause in Article I, Section 8, of the Constitution that gives Congress the power to regulate commerce between the states and between the United States and foreign countries

55)

56) Intergovernmental Immunity Doctrine

J) the doctrine that both the states and the national government possess some immunity from the regulation of the other under federalism principles

56)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

57) What is the preemption doctrine?

58) What is the difference between hierarchical and dual federalism?

59) How does Congress serve as a check on the president in terms of foreign affairs?

60) What is the common law?

61) Which branch of the national government you think currently has the most power: the legislative, executive, or judicial? Explain your position.

62) Which check on the executive branch by the legislative branch is the power powerful?

1) C 2) C 3) A 4) C 5) A 6) B 7) A 8) A 9) A 10) D 11) C 12) C 13) D 14) A 15) C 16) A 17) B 18) B 19) B 20) C 21) FALSE 22) TRUE 23) FALSE 24) TRUE 25) FALSE 26) TRUE 27) TRUE 28) TRUE 29) TRUE

25

30) FALSE 31) TRUE 32) TRUE 33) TRUE 34) FALSE 35) TRUE 36) TRUE 37) tyranny 38) Clause 39) Supremacy 40) concurrent 41) Senate 42) commander 43) courts (judiciary).

44) override 45) Register 46) Code 47) C 48) B 49) D 50) A 51) B 52) D 53) E 54) A 55) C 56) F 57) Under the preemption doctrine, state laws are invalidated if they interfere or conflict with national legislation. For example, the federal government has preempted state regulation of aviation. Thus, a state cannot enact airline safety regulations, because the federal government has completely regulated the area.

58) Dual federalism is the theory that the national government and the state governments are coequal sovereigns. The national government is supreme only when its jurisdiction is explicitly granted by the Constitution. Hierarchical federalism is the theory that the national government is supreme to the state governments. The powers of the national government are read broadly, and the Tenth Amendment is read as not granting any specific powers to the states.

59) The president conducts foreign affairs and negotiates treaties. Congress, the Senate in particular, must ratify treaties. The president is the commander-in-chief of the military, but Congress possesses significant authority over the military as well. It is charged with making rules regulating the military and is responsible for declaring war.

60) The common law, which is of English heritage, has a judicial origin. Before Parliament existed in England, judges developed legal principles to guide their decision making. These legal principles generally followed the customs and practices of the time. For political and prudential reasons, the doctrine of stare decisis et non quieta movera (Latin for “stand by precedents and do not disturb settled points”) was developed in early English courts. This doctrine requires that all lower courts adhere to the law announced by a superior court when the facts of the present case are identical or nearly identical to the facts of the earlier case.

61) Answers will vary.

62) Answers will vary.

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Chapter 3 The Judiciary: Its Role and Jurisdiction MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which of the following best describes presidential nominations of justices to the Supreme Court?

1)

A) Presidents delegate nominations to key senators of the same party as the president.

B) Most presidents have not considered the political views of prospective nominees.

C) Presidents delegate nominations to the American Bar Association.

D) Presidents tend to nominate individuals who they believe share their political opinions.

2) Which of the following best describes the Framers’ intentions concerning the relationship between state and federal courts?

2)

A) Federal courts were to be the primary courts under the Constitution, hearing all important cases, i.e., felony criminal proceedings.

B) The Constitution created a system of federal courts to hear all cases and abolished the state court systems.

C) The Constitution did not create any federal courts and specifically acknowledged the jurisdiction of state courts over all cases, federal and state.

D) State courts were to be the primary courts with the federal courts possessing jurisdiction over a select group of cases.

3) Which of the following is NOT a constraint on federal judicial power?

3)

A) Presidential nomination B) Congressional control of judicial jurisdiction C) Lifetime appointment D) Impeachment for high crimes and misdemeanors 4) John was elected to the House of Representatives. However, the House refused to seat him due to allegations that he abused his wife ten years earlier.

He filed suit in federal court. The judge decided in his favor, and in her opinion, she cited statements made during the Constitutional Convention and ratification debates in the states to support her interpretation of the Qualifications Clause (which governs eligibility to be a member of Congress).

The judge’s interpretive method is best characterized as: A) Modernist.

B) Originalist.

C) Literalist.

D) Textualist.

4)

5) Which method of interpreting the Constitution argues that once the original intent has been declared, change can come only through the amendment process?

5)

A) Contemporary Literalism B) Originalism C) Historical Literalism D) Modernism 6) The power of judicial review extends to:?

6)

A) Executive action.

B) Congressional action.

C) State action.

D) All of the above 7) In Marbury v. Madison the Court:

7)

A) declared the power of judicial review and invalidated President Jefferson’s decision to not deliver a commission of appointment.

B) declared the power of judicial review, but did not exercise it.

C) declared the power of judicial review and invalidated an act of Congress extending to its original jurisdiction in contravention to Article III. D) both A and B are correct.

8) Which method of constitutional interpretation is applied in a manner consistent with the framers’ intentions?

8)

A) Historical Literalism B) Contemporary Literalism C) Modernism D) Originalism 9) A judge who follows an interpretive approach which focuses on the precise meaning of the text of the Constitution in 1787 is best described as: A) Modernist.

B) Contemporary Literalist.

C) Historical Literalist.

D) Originalist.

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9)

10) The Constitution provides generally for two forms of federal judicial jurisdiction. Those are:

10)

A) Federal Question and Pendency.

B) Diversity and Certiorari.

C) Federal Question and Certiorari.

D) Diversity and Federal Question.

11) Which of the following is NOT an element of the “capable of repetition yet evading review” doctrine (an exception to the mootness doctrine)?

11)

A) A legal or factual issue that has become moot.

B) The harm evades review.

C) The harm is capable of reoccurring.

D) The harm is significant.

12) For an organization to have standing, it must show:

12)

A) that it is capable of representing the members.

B) that it has a special interest and expertise in the subject of the litigation.

C) that the majority of its members satisfies the standing test.

D) that it is registered with the Securities and Exchange Commission.

13) As a general matter, a person’s status as a taxpayer:

13)

A) does not establish sufficient interest to challenge any law.

B) establishes sufficient interest to challenge any law that is believed to be unconstitutional.

C) establishes sufficient interest to challenge expenditures of funds to which the taxpayer contributed, so long as the expenditure is unconstitutional.

D) none of the above are correct.

14) Which of the following cases is most likely to be considered a political question and nonjudiciable?

14)

A) A congressional subpoena of presidential records.

B) A congressional decision to not seat an elected member of the House of Representatives.

C) A congressional decision that an amendment has been ratified.

D) Gerrymandering.

15) The Eleventh Amendment was ratified as a result of what Supreme Court decision?

15)

A) Powell v. McCormick B) Hans v. Louisiana C) Chisholm v. Georgia D) Marbury v. Madison 16) The Younger Doctrine provides that federal courts:

16)

A) shall abstain from interfering with state criminal proceedings in most instances.

B) shall abstain from interfering with state political question cases in all instances.

C) shall abstain from interfering with state criminal proceedings in all instances.

D) both B and C are correct.

17) Today, most cases heard by the Supreme Court come to it through:

17)

A) appeal.

B) notice of recall.

C) original jurisdiction.

D) writ of certiorari.

18) How many justices does it take to grant a Writ of Certiorari?

18)

A) four B) six C) all justices D) five 19) The phrase “stare decisis” originates from a

phrase.

19)

A) Russian B) Latin C) French D) Greek 20) What is the only federal court expressly created by the U.S. Constitution?

A) U.S. Court of International Trade B) U.S. Court of Appeal C) U.S. Supreme Court D) U.S. District Court

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20)

21) Who has the power to impeach federal court judges?

21)

A) President B) U.S. House of Representatives C) U.S. Supreme Court D) U.S. Senate TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

22) Stare decisis refers to the process of ordering a lower court to send a case up for review.

22)

23) To sit on an Article III federal court, a person must be nominated by the President and confirmed by the House of Representatives.

23)

24) U.S. Bankruptcy judges are examples of Article III judges.

24)

25) Article III provides for eight associate justices and one Chief Justice of the Supreme Court.

25)

26) The Constitution has been amended on two occasions in order to reverse a Supreme Court decision.

26)

27) One role courts perform in the U.S. is interpretation of law.

27)

28) It has been discovered through empirical research that there is little correlation between their political ideology (liberal to conservative) and voting patterns on cases.

28)

29) Stare decisis refers to a Latin phrase that means “on the bench.”

29)

30) Originalists hold that the Constitution should be interpreted to mean what the framers originally intended it to mean.

30)

31) Originalism is an approach to interpreting the Constitution that allows courts to consider changes in social, economic, and political forces.

31)

32) One canon of statutory construction holds that if part of a statute is held unconstitutional, the remaining parts are to remain viable as long as it is logical to do so.

32)

33) One canon of statutory construction holds that a court will decide a case without addressing a constitutional issue if possible alternative grounds exist.

33)

34) By statute, all federal judges are required to recuse from cases where “his/her impartiality might reasonably be questioned.”

34)

35) Article I of the U.S. Constitution provides that the “judicial power of the United States, shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish.”

35)

36) Mootness, ripeness, standing, political question, and case-or-controversy requirements all limit the authority of the judiciary.

36)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) Since 1869, there have been Supreme Court.

justices that sit on the U.S.

37)

38) The authority of one court to review the proceedings of another court or of an administrative agency is known as jurisdiction.

38)

39) There are ninety-four federal trial courts.

39)

courts in the United States which are the

40) A institution is one whose members are not elected by, or directly accountable to, the people.

40)

41) Once confirmed, federal court judges receive

41)

tenure.

42) A(n) opinion is a judicial interpretation of a legal question requested by the legislative or executive branch of government.

42)

43) Federal judicial jurisdiction is limited by Article III, Section 2 of the U.S. Constitution to cases that involve federal legal issues or where of citizenship exists.

43)

44) If a suit is filed before a harm has occurred or before the threat of harm is imminent, the case is said to be .

44)

45) A case for which the disputed issues have been resolved or dissipated during litigation is .

45)

46) Modernists view the Constitution in light of

46)

life.

47) If part of a statute is held unconstitutional, the remaining remain viable as long as it is logical to do so.

are to

47)

48) Stare decisis is the doctrine that judicial decisions stand as cases arising in the future.

for

48)

33

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the constitutional interpretation method listed in Column 1 to its description in Column 2.

49) originalism

A) Constitution is interpreted and applied by focusing on its terms, syntax, and other linguistic features that are currently in use

49)

50) historical literalism

B) Constitution is interpreted and applied in contemporary terms

50)

51) democratic reinforcement

C) Constitution is interpreted and applied in a manner that reinforces the document’s underlying democratic themes

51)

52) contemporary literalism

D) Constitution is interpreted and applied in a manner consistent with the framers’ intentions

52)

53) modernism

E) Constitution is interpreted and applied by focusing on its terms, syntax, and other linguistic features that were in use at the time of adoption/ratification

53)

Match the term listed in Column 1 to its description in Column 2.

54) Appellate Jurisdiction

A) the jurisdiction of a trial court, as distinguished from the jurisdiction of an appellate court interpreter of the law, to declare an act of a coordinate governmental branch of state unconstitutional

54)

55) Original Jurisdiction

B) the authority of one court to review the proceedings of another court or of an administrative agency

55)

56) en banc

C) the jurisdiction of a federal court arising from diversity of citizenship, when the jurisdictional amount has been met

56)

57) Diversity Jurisdiction

D) French term for “on the bench” A court, particularly an appellate court, with all the judges sitting together in a case

57)

58) Federal Jurisdiction

E) the jurisdiction of the federal courts based upon the judicial powers granted by Article III of the Constitution and by federal statutes

58)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

59) What are the main courts in the federal court system?

60) How is a vacancy on the U.S. Supreme Court filled?

61) What are the requirements for diversity jurisdiction?

62) What is the standing requirement?

63) Describe the four primary methods of interpreting the U.S. Constitution.

64) Describe the different canons of statutory construction.

65) What is stare decisis?

66) Explain which method of interpreting the U.S. Constitution you think is the best approach.

67) Discuss whether you think the amount in controversy in federal diversity of citizenship cases should increase from $75,000 to $100,000.

1) D 2) D 3) C 4) B 5) B 6) D 7) C 8) D 9) C 10) D 11) D 12) C 13) C 14) B 15) C 16) D 17) D 18) A 19) B 20) C 21) D 22) FALSE 23) FALSE

35

24) FALSE 25) FALSE 26) FALSE 27) TRUE 28) FALSE 29) FALSE 30) TRUE 31) FALSE 32) TRUE 33) TRUE 34) TRUE 35) FALSE 36) TRUE 37) nine 38) appellate 39) district 40) countermajoritarian 41) lifetime 42) advisory 43) diversity 44) unripe 45) moot 46) contemporary 47) parts 48) precedents 49) A 50) B 51) C 52) A 53) B 54) C 55) A 56) D 57) B 58) E

59) The Supreme Court sits at the apex of the federal judiciary. This court was created directly by the Constitution. Under the Supreme Court are the United States Courts of Appeals. There are thirteen Courts of Appeals. These courts were created by Congress. Under the Courts of Appeals are the United States district courts. There is at least one district court in each state and there are more in larger states. These courts were created by Congress. Under the district courts are bankruptcy courts and magistrate-judges. In addition, Congress has created several specialty courts.

60) First, a nominee is selected by the president. A president’s nomination is sent to the Senate for “consent”—that is, the Senate may either deny or confirm the nomination. A simple majority is required for senatorial confirmation.

61) Diversity of citizenship jurisdiction extends to cases between a citizen of one state and another state, between two states, between citizens of different states, or between a foreign nation or one of its citizens and a state between citizens of different states, and the amount in controversy exceeding $75,000.

62) Standing refers to the right to appear in court or raise an issue within litigation. Generally, a party must show an injury in fact and causation to have standing.

63) Originalism attempts to discover what the Framer’s intended for the Constitution to mean. Modernists view the Constitution in light of contemporary life. The Constitution is a living document to a modernist. Literalists attempt to confine interpretation to the text of the document. Those in the historical school use the definitions and language rules of the time when the Constitution was formed (or amendment adopted). Contemporary literalists use today’s definitions and rules.

64) One canon of statutory construction holds that if multiple interpretations of a statute are possible, some holding the law constitutional and others not, a construction that supports the law’s constitutionality is to be selected. Similarly, a court will decide a case without addressing a constitutional issue, if possible (alternative grounds). Another canon of construction provides that a statute is presumed constitutional and the burden of proving otherwise lies with the challenger. If part of a statute is held unconstitutional, the remaining parts are to remain viable as long as it is logical to do so. The unconstitutional clauses are to be severed, and the courts should enforce the remaining parts of the law.

65) Stare decisis is the Latin term for “standing by the decision.” Stare decisis is the doctrine that judicial decisions stand as precedents for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue, even though different parties are involved and many years have elapsed.

66) Answers will vary.

67) Answers will vary. Factors to consider include access to the federal courts, docket congestion, and differences between the federal and state court systems.

37

Chapter 4 Congress MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) If an individual activity does not affect interstate commerce, but the aggregate of that activity does, federal commerce jurisdiction exists under the:

1)

A) Resulting consequences doctrine.

B) Cumulative effects doctrine.

C) Dormant Commerce Clause.

D) Pretext principle.

2) The federal income tax is authorized by:

2)

A) Article I. B) Article XVI. C) Article VI. D) None of the above.

3) Who may declare war?

3)

A) Entire Congress B) Senate C) President D) House of Representatives 4) Which of the following best describes the impeachment process?

4)

A) The Senate impeaches and the House tries the impeachment.

B) The House impeaches and the Senate tries the impeachment.

C) The House impeaches and tries the impeachment.

D) The Senate impeaches and tries the impeachment.

5) Who possesses the authority to suspend habeas corpus?

A) Congress B) President C) Both A and B are required D) Either A or B

5)

6) The veto of a congressional bill by the president by retaining it until Congress is no longer in session, neither signing nor vetoing it, is called a(n):

6)

A) implied veto.

B) line-item veto.

C) pocket veto.

D) veto by implication.

7) Which doctrine provides Congress with authority to regulate intrastate activities that substantially affect interstate commerce?

7)

A) dormant commerce clause B) preemption doctrine C) Affectation doctrine D) Doctrine of supremacy 8) Which case allowed Congress to regulate that amount of wheat grown by local farmers?

8)

A) U.S. v. Lopez B) Wickard v. Filburn C) U.S. v. Morrison D) Gonzalez v. Raich 9) Which case allowed Congress to prosecute marijuana crimes even when a state has a law allowing for the medicinal use of this drug?

9)

A) U.S. v. Lopez B) Wickard v. Filburn C) U.S. v. Morrison D) Gonzalez v. Raich 10) Which case invalidated the federal Gun Free School Zone’s Act?

10)

A) U.S. v. Lopez B) Wickard v. Filburn C) U.S. v. Morrison D) Gonzalez v. Raich 11) Which case gives Congress the most authority under the Commerce Clause?

A) U.S. v. Lopez B) Wickard v. Filburn

39

11)

C) U.S. v. Morrison D) Gonzalez v. Raich 12) Under what authority can Congress levy an income tax?

12)

A) Pollock v. Farmers Loan & Trust Co B) Article I, section 8 C) Tax and Spend Clause D) 16th Amendment 13) What case allowed Congress to regulate the drinking age within the states using the Tax and Spending Clause of Article I?

13)

A) McCulloch v. Maryland B) U.S. v. Lopez C) South Dakota v. Dole D) Pollock v. Farmers Loan & Trust Co 14) What case invalidated an earlier effort by Congress to enact a federal income tax?

14)

A) U.S. v. Lopez B) McCulloch v. Maryland C) Pollock v. Farmers Loan & Trust Co D) South Dakota v. Dole 15) What case upheld the power of the federal government to create a national bank?

15)

A) U.S. v. Morrison B) South Dakota v. Dole C) McCulloch v. Maryland D) U.S. v. Lopez 16) Since 1962, how many voting representatives serve in the U.S. House of Representatives?

16)

A) 100 B) 435 C) 439 D) 437 17) What is the minimum age requirement to serve in the U.S. House of

17)

Representatives?

A) 35 B) 21 C) 30 D) 25 18) What is the minimum age requirement to serve in the U.S. Senate?

18)

A) 30 B) 35 C) 21 D) 25 19) Which provision in Article I, Section 7, clause 1, of the U.S. Constitution requires all revenue-raising bills to originate in the House of Representatives?

19)

A) Spending Clause B) Commerce Clause C) Origination Clause D) Necessary and Proper Clause 20) Which constitutional amendment provides that the legislature of the state may empower the governor to make a temporary senatorial appointment pending replacement by election?

20)

A) Amendment 15 B) Amendment 16 C) Amendment 17 D) Amendment 18 TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) If a President does not return a bill to Congress within five days, it automatically becomes law.

21)

22) The U.S. Congress is a bicameral legislature.

22)

23) Each state has an equal number of Representatives and Senators.

23)

41

24) A state may not impose term limitations on its Representatives and Senators.

24)

25) Each house of Congress possesses the final authority to decide who won in contested elections.

25)

26) Members of Congress are absolutely immune from suit for statements made while on the floor of either house.

26)

27) President Franklin D. Roosevelt attempted to “pack” the Court by recommending legislation that would permit a President to nominate additional justices for each sitting justice over the age of 70 who had served on the Court for ten years or longer.

27)

28) Congressional power over interstate commerce is severely limited by the power of the states to regulate intrastate commerce.

28)

29) Between the 1940s and 1995, the Supreme Court invalidated seven federal statutes as exceeding the commerce power.

29)

30) It is well established that Congress may regulate commercial matters only and federal regulations that have welfare objectives are invalid.

30)

31) The Necessary and Proper Clause is an independent source of authority.

31)

32) Article I, Section 2, clause 5 of the U.S. Constitution gives the Senate the responsibility of trying impeachment cases.

32)

33) Congress alone possesses the authority to suspend habeas corpus.

33)

34) To be a member of the House of Representatives, a person must be at least twenty-five years old, a citizen of the United States for at least seven years, and an inhabitant of the state where he will run for election.

34)

35) The Constitution limits the number of terms a person may serve in both the House and the Senate.

35)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

36) The President may call both or one of the chambers of Congress into session from a recess in occasions.

36)

37) Article I, Section 2, requires that a census of the population occur every years in a manner proscribed by Congress.

37)

38) Every state, regardless of population, has one vote.

38)

senators, each with

39) After the ratification of the directed elected by the people.

Amendment, U.S. Senators are now

39)

40) The Commerce Clause in Article I, Section 8, of the Constitution gives Congress the power to regulate commerce.

40)

41) The power to regulate health, welfare, and security is known as the power.

41)

42) In National Federation of Independent Business v. Sebelius, 135 S.Ct. 2566 (2012) decided by the U.S. Supreme Court in 2012 dealing with the constitutionality of the Patient Protection and Affordable Care Act, the U.S. Supreme Court held that the individual mandate was effectively a and a legitimate exercise of congressional authority under Art. I, sec. 8, cl. 1.

42)

43) Codification is the process of turning a common law rule into a(n) .

43)

44) Use is a guaranty given to a person that if he or she testifies against others, his or her testimony will not be used against him or her if he or she is prosecuted for involvement in the crime.

44)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

45) Police Power

A) Article I, Section 7, clause 1, of the U.S. Constitution, which requires all revenueraising bills to originate in the House of Representatives.

45)

46) Affectation Doctrine

B) Rule that provides Congress with authority to regulate intrastate activities that affect interstate commerce. Even though individual activity may not affect interstate commerce, the total effect of all individuals who engage in the activity may affect interstate commerce and provide Congress with the jurisdiction to regulate the activity.

46)

47) Joint Resolution

C) The power of government to make and enforce laws and regulations necessary to maintain and enhance the public welfare and to prevent individuals from violating the rights of others.

47)

43

48) Origination Clause

D) A resolution passed by both houses of a bicameral legislature and eligible to become a law if signed by the chief executive or passed over the chief executive’s veto.

48)

49) Mark-up

E) A law that is enacted by Congress supposedly under one of its enumerated powers, when the law’s true purpose is to regulate a subject belonging to the states, is invalid.

49)

50) Pretext Principle

F) The detailed revision of a bill by a legislative committee.

50)

51) Code

A) A proposed law, presented to the legislature for enactment. committed

51)

52) Bill

B) The clause in Article I, Section 8, of the Constitution that gives Congress the power to regulate commerce between the states and between the United States and foreign countries.

52)

53) Statute

C) A law enacted by a legislature; an act.

53)

54) Commerce Clause

D) The published statutes of a jurisdiction, arranged in a systematic form.

54)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

55) What are the qualifications to become a U.S. Senator?

56) Which provision in the U.S. Constitution gives Congress the power to regulate business and labor?

57) Which constitutional provisions have been used by Congress to address civil rights issues?

58) Discuss whether you would support or oppose a constitutional amendment that would provide term limits for members of Congress. Explain your position.

59) Explain which enumerated power of Congress stated in the U.S. Constitution gives Congress the most power and authority?

1) B 2) A 3) A 4) B 5) A

6) C 7) C 8) B 9) D 10) A 11) B 12) D 13) C 14) C 15) C 16) B 17) D 18) A 19) C 20) C 21) TRUE 22) FALSE 23) FALSE 24) TRUE 25) TRUE 26) TRUE 27) TRUE 28) FALSE 29) FALSE 30) FALSE 31) FALSE 32) TRUE 33) TRUE 34) TRUE 35) FALSE 36) extraordinary 37) ten 38) two 39) Seventeenth 40) interstate

45

41) police 42) tax 43) statute 44) immunity 45) C 46) B 47) D 48) A 49) F 50) E 51) D 52) A 53) C 54) B 55) To be a senator, a person must be at least thirty years old, a citizen of the United States for at least nine years, and an inhabitant of the state where they will be a candidate for election. Senators serve six-year terms.

56) The Commerce Clause in Article I, Section 8, of the Constitution gives Congress the power to regulate commerce between the states and between the United States and foreign countries. Article I, Section 8, clause 3, states that Congress shall have the authority to “regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes.” Federal statutes that regulate business and labor are based upon this power.

57) The Thirteenth, Fourteenth, and Fifteenth Amendments all contain the following language: “Congress shall have the power to enforce this article by appropriate legislation.” The three amendments are commonly referred to as the Civil War, Reconstruction, and Civil Rights Amendments. The Thirteenth (1865) abolishes slavery, the Fourteenth (1868) provides for due process and equal protection of laws, and the Fifteenth (1870) assures that all citizens may enjoy the franchise, regardless of race or color. The courts have construed these provisions broadly, so that Congress has considerable authority and flexibility in remedying America’s civil rights ills. Congress may regulate both private and civil associations.

58) Answers will vary.

59) Answers will vary. Many consider the Commerce Clause to be the enumerated power in the Constitution that gives Congress the most power and authority.

Chapter 5 The Presidency MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) In what case did Justice Jackson (dissenting) outline the three-part model of presidential power that continues to be referred to today?

1)

A) United States v. Nixon B) Goldwater v. Carter C) Youngstown Sheet and Tube Co. v. Sawyer D) Smith v. Ford 2) The War Powers Resolution is possibly unconstitutional because:

2)

A) it encroaches upon executive authority.

B) it is a legislative veto.

C) it was not properly enacted.

D) both A and B are correct.

3) Which of the following best describes the relationship between the federal government and state militias?

3)

A) The militias are state entities over which the federal government has limited authority.

B) The militias are federal entities over which the federal government has complete authority.

C) The militias are independent state entities over which the federal government has no authority.

D) All of the above.

4) Presidential communications are:

4)

A) presumptively privileged from compelled disclosure.

B) absolutely privileged from compelled disclosure.

C) not privileged from compelled disclosure whatsoever.

D) all of the above.

5) A President is:

5)

A) not immune from suit whatsoever.

B) absolutely immune from suit for executive functions.

C) presumptively immune from suit for executive functions.

D) all of the above.

47

6) Executive Impoundment refers to:

6)

A) an executive branch official’s refusal to obey a President’s directive.

B) an executive branch official’s refusal to spend appropriated money.

C) an executive branch official’s seizure of personal property.

D) all of the above.

7) Which of the following is NOT a role the President plays in lawmaking?

7)

A) Vetoing bills B) Interfacing with members of Congress C) Submission of bills D) All of the above 8) Which decision largely decided the presidential election of 2000?

8)

A) Bush v. Gore B) Clinton v. Bush C) Gore v. Cheney D) Clinton v. Jones 9) Executive orders are published in:

9)

A) Book of Executive Orders.

B) Federal Register.

C) U.S. Code.

D) Executive Order Registry.

10) The Supreme Court rejected an attempt by President Truman to seize steel mills during a labor dispute in what case?

10)

A) Youngstown Sheet & Tube Co. v. Sawyer B) UAW v. Truman C) Truman v. Capote D) AFL-CIO v. Truman 11) What term is used to refer to a president’s refusal to expend congressionally appropriated funds?

A) fiscal restraint B) financial hijacking

11)

C) impoundment D) refusal 12) An act of grace by the chief executive of the government relieving a person of the legal consequences of a crime of which he or she has been convicted is called:

12)

A) acquittal.

B) commutation.

C) summary judgment.

D) pardon.

13) What case allowed President Roosevelt to intern Japanese Americans during World War II?

13)

A) Hamdi v. Rumsfeld B) Korematsu v. United States C) Rasul v. Bush D) Boumediene v. Bush 14) What case did the Court the Court held that detainees at Guantanamo Bay, including enemy combatants, are entitled to habeas corpus?

14)

A) Hamdi v. Rumsfeld B) Korematsu v. United States C) Rasul v. Bush D) Boumediene v. Bush 15) The case of Jones v. Clinton (1997) involved what issue?

15)

A) executive immunity B) Executive privilege C) War making authority D) pardon power 16) What is the minimum age requirement to become President of the United States?

A) 30 years old B) 35 years old C) 40 years old D) 25 years old

49

16)

17) How many votes are required to elect the president and vice president under the Electoral College?

17)

A) 539 B) 250 C) 300 D) 270 18) What is the theory that the Constitution vests all executive authority in the president of the United States?

18)

A) plural executive B) executive privilege C) unitary executive D) natural law theory 19) What is an act of the government granting a pardon for a past crime?

19)

A) commutation of sentence B) pardon C) reprieve D) amnesty 20) What is a partial pardon that reduces the punishment for a crime?

20)

A) commutation of sentence B) pardon C) reprieve D) amnesty 21) What is an act of grace by the chief executive of the government relieving a person of the legal consequences of a crime of which he or she has been convicted?

A) commutation of sentence B) pardon C) reprieve D) amnesty

21)

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

22) A person must be a natural born citizen to be President.

22)

23) Presidents are directly elected.

23)

24) A President may enact an executive order in any policy area where Congress has been delegated authority, but has chosen not to act.

24)

25) Congress may impose reasonable limitations upon the executive pardon power.

25)

26) The decision to negotiate with a foreign nation is vested solely in the President and is nonjusticiable.

26)

27) Because treaties are deemed “supreme law,” they are equal to the Constitution in authority.

27)

28) An executory treaty is one that is enforceable immediately upon adoption.

28)

29) Most agreements with foreign nations are in the form of executive agreements, not treaties.

29)

30) The creation of independent administrative agencies is consistent with the theory of a unitary executive.

30)

31) The President of the United States may establish the procedures to be used to detain and try alleged terrorists.

31)

32) There is explicit language in the Constitution recognizing the power of the President to enter into executive agreements.

32)

33) The President enjoys a limited privilege against being compelled to disclose records and other materials created in the course of executive duties.

33)

34) In United States v. Nixon, 418 U.S. 904 (1974), the U.S. Supreme Court ruled that although a presidential privilege exists, and is presumed to exist if asserted, it may be overcome by a specific need for evidence in a criminal case.

34)

35) The U.S. Supreme Court case Bush v. Gore, 531 U.S. 98 (2000) that decided the outcome of the 2000 presidential election was a unanimous 90 decision.

35)

36) The Twenty-Second Amendment, ratified in 1951 following President Franklin D. Roosevelt’s four-term presidency, imposed term limits for the President.

36)

51

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) The Presidential Eligibility Clause, Article II, Section 1, requires that a person be a natural-born , 35 years of age, and at least 14 years a resident of the United States to become President.

37)

38) Article II, Section 1, provides for one president and one vice-president, each to serve years.

38)

39) The president has a direct influence on congressional lawmaking through the power under Article I, Section 7, clause 2, that requires all bills that have passed the House and Senate to be submitted to the president.

39)

40) The appointments clause in Article II, Section 2, clause 2 of the U.S. Constitution is clear that ambassadors, public ministers and consuls, and judges of the Supreme Court must be by the president and confirmed by Senate.

40)

41) Impoundment refers to a president’s refusal to expend congressionally appropriated .

41)

42) The president possesses the authority of sentence.

42)

43) Habeas

of sentence to lessen a

is Latin for “you have the body.”

44) Treaties are characterized as either

or self-executing.

43) 44)

45) In United States v. Nixon, 418 U.S. 904 (1974), the U.S. Supreme Court ruled that although a presidential exists, it may be overcome by a specific need for evidence in a criminal case.

45)

46) Generally, the president is absolutely immune from suit and liability for acts.

46)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

47) executive agreement

A) a president’s refusal to expend congressionally appropriated funds

47)

48) martial law

B) the body empowered by the Constitution to elect the president and vice-president of the United States

48)

49) pardon

C) an act of grace by the chief executive of the government relieving a person of the legal consequences of a crime of which he or she has been convicted

49)

50) line item veto

D) a model of executive authority that divides executive powers between multiple executive officers who act independently of one another

50)

51) impoundment

E) a means for attacking the constitutionality of the statute under which, or the proceedings in which, the original conviction was obtained

51)

52) Electoral College

F) an agency whose head serves at the pleasure of the president

52)

53) executive agency

G) an agreement with a foreign government, made by the president acting within his or her executive powers

53)

54) independent agency

H) an agency whose head may be terminated by the president only for good cause

54)

55) plural executive

I)

the right of a governor under most state constitutions to veto individual appropriations in an appropriation act rather than being compelled either to veto the act as a whole or to sign it into law

55)

56) writ of habeas corpus

J) a theory that the Constitution vests all executive authority in the president of the United States

56)

57) unitary executive

K) exists when civilian government has been replaced with military government

57)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

58) What are the qualifications under the U.S. Constitution to become President?

59) What is the unitary executive theory?

60) What is the pocket veto?

61) What are the three different types of executive agreements?

62) What did the U.S. Supreme Court decide in Jones v. Clinton, 520 U.S. 681 (1997)?

63) Discuss whether you would support or oppose a constitutional amendment that would give the President of the United States the line item veto power. Explain your position.

53

64) Discuss whether you would support a law in your state to reallocate your state’s electoral votes to the presidential candidate who wins the majority of votes on a national scale rather than the candidate who wins the state. Explain your position.

1) C 2) D 3) A 4) A 5) B 6) B 7) C 8) A 9) B 10) A 11) C 12) D 13) B 14) A 15) A 16) B 17) D 18) C 19) D 20) A 21) B 22) TRUE 23) FALSE 24) FALSE 25) FALSE 26) TRUE 27) FALSE 28) FALSE 29) TRUE 30) FALSE 31) FALSE

32) FALSE 33) TRUE 34) TRUE 35) FALSE 36) TRUE 37) citizen 38) four 39) veto 40) nominated 41) funds 42) commutation 43) Corpus 44) executory 45) privilege 46) official 47) B 48) D 49) A 50) C 51) A 52) B 53) E 54) F 55) C 56) D 57) G 58) The Presidential Eligibility Clause, Article II, Section 1, requires that a person be a natural-born citizen, thirty-five years of age, and at least fourteen years a resident of the United States.

59) The unitary executive theory is a theory that the Constitution vests all executive authority in the president of the United States. In a strong unitary executive system, Congress is without the authority to delegate executive authority, independent of the president, to any officer or agency or to limit presidential authority to remove or direct executive subordinates.

60) The pocket veto is the veto of a congressional bill by the president by retaining it until Congress is no longer in session, neither signing nor vetoing it. The effect of such inaction is to nullify the legislation without affirmatively vetoing it. The pocket veto is also available to governors under some state constitutions.

55

61) Treaties must be approved by the Senate, whereas executive agreements are entered into unilaterally by the president. There are three types of executive agreements, each characterized by different sources of power. The first is the treaty-authorized executive agreement. The second type of executive agreement is the congressionally authorized executive agreement. The third form of executive agreement is the solely executive agreement.

62) The U.S. Supreme Court held in Jones v. Clinton, 520 U.S. 681 (1997) that Presidents are not immune from civil litigation unrelated to the performance of official duties. The Court also observed that the President is subject to judicial process in appropriate circumstances.

63) Answers will vary.

64) Answers will vary.

Chapter 6 Administrative Agencies in the Constitutional Scheme MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) For a delegation to be constitutional, Congress must provide the delegate agency with:

1)

A) no guidance is required.

B) an intelligible principle from which to act.

C) specific guidance to direct its actions.

D) all the above.

2) Which of the following is NOT a reason that a legislative veto law may be unconstitutional?

2)

A) It encroaches upon the constitutional sphere of an administrative agency.

B) It bypasses presentment to the President.

C) It permits one house of Congress to invalidate administrative action.

D) All the above.

3) Administrative law judges are:

3)

A) Article II judges.

B) Article III judges.

C) Article IV judges.

D) Article I judges.

4) A statute that gives the government the power to enforce other legislation or that carries out a provision of a constitution is called a(n):

4)

A) enabling act.

B) Act of Authority.

C) vesting.

D) delegation of authority.

5) The test used to determine if Congress has provided an agency with sufficient guidance in the performance of a delegated duty is called: A) delegation test.

B) agency assessment.

C) intelligible principle.

D) act of guidance.

57

5)

6) The rule providing that if a claim is public in nature and not private, Congress may delegate its adjudication to a non-Article III tribunal is called:

6)

A) public access doctrine.

B) rule of adjudication.

C) public rights doctrine.

D) non-delegation doctrine.

7) Which case involved administrative regulation of the manufacture Euphoria?

7)

A) Gomez v. U.S. B) Touby v. United States C) Samuels v. U.S. D) Peretz v. U.S. 8) What case involved the delegation of voir dire in criminal cases?

8)

A) Touby v. United States B) Samuels v. U.S. C) Peretz v. U.S. D) Gomez v. U.S. 9) What is the name of the legislation passed by Congress in 1946 to govern the procedures used by administrative agencies intended to curb the growing power of agencies?

9)

A) Federal Agency Act B) Administrative Delegation Act C) Federal Agency Procedure Act D) Administrative Procedure Act 10) What does the acronym ALJ mean?

10)

A) Administrative Legal Justice B) Administrative Legal Judge C) Administrative Law Justice D) Administrative Law Judge 11) In which U.S. Supreme Court case did the court invalidate the legislative veto?

A) Touby v. United States B) Mistretta v. United States

11)

C) Immigration & Naturalization Service v. Chadha D) Arizona v. California 12) In which U.S. Supreme Court case did the court uphold delegation to the U.S. Sentencing Commission?

12)

A) Touby v. United States B) Mistretta v. United States C) Immigration & Naturalization Service v. Chadha D) Arizona v. California 13) In which U.S. Supreme Court case did the court find a valid delegation of authority to the Secretary of the Interior because the statute ordered the secretary to consider various factors?

13)

A) Touby v. United States B) Mistretta v. United States C) Immigration & Naturalization Service v. Chadha D) Arizona v. California 14) What is the doctrine that gives agencies deference to reasonable agency interpretations of the ambiguous provisions of the statutes they administer because the agencies have greater expertise and experience in their policy areas?

14)

A) Chevron Doctrine B) nondelegation doctrine C) delegation doctrine D) public rights doctrine 15) Which of the following is NOT a factor used by the Court to determine whether a congressional delegation of judicial authority to an administrative agency is constitutional?

15)

A) the reasons Congress chose to vest the adjudicatory power in an administrative officer or tribunal B) the amount in controversy C) the extent to which the essential attributes of judicial power are reserved to Article III judges D) the origins and importance of the right(s) to be adjudicated 16) Who appoints the heads of executive agencies?

16)

A) the House B) the Senate

59

C) the President D) the Vice President 17) Once created, agencies fall into the

branch of government.

17)

18) For independent agencies, presidents (or officers who report to the president) often possess “for-cause” removal authority, as defined by:

18)

A) legislative B) judicial C) executive D) fourth

A) Congress.

B) the U.S. Supreme Court.

C) the agency.

D) the President.

19) In which U.S. Supreme Court case did the court strike down legislation passed by Congress as part of President Roosevelt’s New Deal based on the nondelegation doctrine?

19)

A) Lichter v. United States B) Schechter Poultry Corp. v. United States C) Gomez v. United States D) Touby v. United States 20) In which U.S. Supreme Court case did the court upheld a delegation to administrative officers to recover “excessive profits” when renegotiating contracts involving war goods.?

20)

A) Touby v. United States B) Lichter v. United States C) Schechter Poultry Corp. v. United States D) Gomez v. United States TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) Article III establishes federal administrative agencies.

21)

22) An independent administrative agency is one which generates its own revenues through bonds and other measures, rather than relying on appropriations from Congress.

22)

23) Federal agencies are created and defined by the President.

23)

24) A transfer of lawmaking power (rulemaking) from Congress to an administrative agency is known as delegation.

24)

25) The “nondelegation doctrine” is rooted in federalism principles.

25)

26) Congress may limit the President’s power to remove the Attorney General to good cause.

26)

27) Congress may delegate the adjudication of public rights to administrative agencies.

27)

28) With the exception of independent agencies, the president acts as the chief of the administrative state.

28)

29) For purely executive agencies, presidents can direct lower officials, within the bounds of the law.

29)

30) There are no limits to the congressional delegation power to administrative agencies.

30)

31) A delegation may be violative of the Constitution if it places control over an essential function of one branch in another branch.

31)

32) During Roosevelt’s New Deal, the Supreme Court invalidated several laws as excessive delegations of legislative powers.

32)

33) Informal rulemaking is known as rulemaking on the record.

33)

34) Administrative agencies may perform both quasi-legislative and quasijudicial functions.

34)

35) Bankruptcy judges are considered Article III judges nominated by the President and confirmed by the Senate.

35)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

36) The heads of executive agencies are under control of the

.

36)

37) Malfeasance, misfeasance, and neglect of duty are commonly recognized

by Congress as for removal of officers of independent agencies.

37)

38) Quasi-judicial is a term applied to the administrative agency.

38)

functions of an

39) Quasi-legislative is a term applied to the administrative agency.

functions of an

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39)

40) The term legislative refers to any process whereby Congress reviews, and possibly reverses, an agency decision.

40)

41) Corrections is part of Congress’s schedule occurring twice a month; a time especially set aside for legislation intended to amend or repeal administrative rule.

41)

42) Formal rulemaking is process used by administrative agencies to create rules and regulations required only when mandated by .

42)

43) The Administrative Act provides that agencies may use informal rulemaking unless formal rulemaking is required by statute.

43)

44) The Intelligible Test is the test used to determine if Congress has provided an agency with sufficient guidance in the performance of a delegated duty.

44)

45) The Public Doctrine is the rule providing that if a claim is public in nature and not private, Congress may delegate its adjudication to a non-Article III tribunal.

45)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

46) Mistretta v. United States (1989)

A) part of Congress’s schedule occurring twice a month; a time especially set aside for legislation intended to amend or repeal administrative rule

46)

47) Corrections Day

B) U.S. Supreme Court case where the court upheld delegation to the U.S. Sentencing Commission.

47)

48) legislative veto

C) an act of a legislature invalidating executive action in a particular instance.

Generally, legislative vetoes are unconstitutional

48)

49) formal rulemaking

D) legislation that creates an agency and defines its powers is known as enabling legislation

49)

50) Immigration & Naturalization Service v. Chadha (1983)

E) legislation passed by Congress in 1946 to govern the procedures used by administrative agencies intended to curb the growing power of agencies

50)

51) Administrative Procedure Act

F) a process used by administrative agencies to create rules and regulations that is less costly and less time consuming known as notice-and-comment rulemaking

51)

52) enabling act

G) a process used by administrative agencies to create rules and regulations required only when mandated by statute known as rulemaking on the record

52)

53) quasi-judicial

H) the transfer of power from the president to an administrative agency

53)

54) delegation of powers

I)

a term applied to the legislative functions of an administrative agency, such as rulemaking

54)

55) quasi-legislative

J) a term applied to the adjudicatory functions of an administrative agency, that is, taking evidence and making findings of fact and findings of law

55)

56) informal rulemaking

K) U.S. Supreme Court case invalidating the legislative veto that violated bicameral and presentment of bills or resolutions to the president requirements

56)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

57) What is the difference between executive and independent agencies?

58) What is the difference between quasi-legislative and quasi-judicial functions of an administrative agency?

59) What is the legislative veto?

60) What did the U.S. Supreme Court hold in Arizona v. California, 373 U.S. 546 (1963)?

61) In Immigration & Naturalization Service v. Chadha (1983), the U.S. Supreme Court invalidated the legislative veto by a split 7-2 decision. Discuss whether you agree with the opinion of the court or whether you agree with the dissenting opinion in the case.

62) In Department of Transportation v. Association of American Railroads, the U.S. Supreme Court held that Amtrak is more like a public entity than a private entity but remanded the case back to the lower court to consider questions about how Amtrak’s board is appointed and whether there are due process concerns with giving Amtrak regulatory authority over its own industry. Conduct research involving the Amtrak litigation and explain your position on the issues.

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1) B 2) A 3) D 4) A 5) C 6) C 7) B 8) D 9) D 10) D 11) C 12) B 13) D 14) A 15) B 16) C 17) C 18) A 19) B 20) B 21) FALSE 22) FALSE 23) FALSE 24) TRUE 25) FALSE 26) FALSE 27) TRUE 28) TRUE 29) TRUE 30) FALSE 31) FALSE 32) TRUE 33) FALSE 34) TRUE 35) FALSE

36) President 37) cause 38) adjudicatory 39) legislative 40) veto 41) Day 42) statute 43) Procedure 44) Principle 45) Rights 46) A 47) B 48) E 49) C 50) D 51) B 52) A 53) F 54) D 55) E 56) C 57) The heads of executive agencies are under control of the President, including removal. The heads of independent agencies are shielded from presidential control, often removable only for good cause.

58) Quasi-legislative is a term applied to the legislative functions of an administrative agency, such as rulemaking. Quasi-judicial is a term applied to the adjudicatory functions of an administrative agency, that is, taking evidence and making findings of fact and findings of law.

59) The legislative veto is an act of a legislature invalidating executive action in a particular instance.

Generally, legislative vetoes are unconstitutional. Once power is delegated by Congress to the president, it is generally prohibited from interfering with the president’s enforcement.

60) Arizona v. California represents a valid delegation. The Secretary of the Interior was delegated considerable authority over the apportionment of water from the Colorado River by the Boulder Canyon Project Act. The delegation was upheld because the statute ordered the secretary to consider various factors when deciding priority for water use. For example, he was ordered to consider river regulation, flood control, irrigation, domestic water consumption, and power production needs. The Court found that this provided the secretary with sufficient standards from which to work. If Congress had simply left the decision to the secretary’s discretion, without listing the factors to be considered, the delegation would have failed.

61) Answers will vary.

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62) Answers will vary.

Chapter 7 Contemporary Federalism: The State and Federal Relationship MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which of the following is NOT an example of a form of preemption?

1)

A) A state law is inconsistent with federal laws, even though no express preemption statement has been made by Congress.

B) Congress has enacted a legislative scheme that comprehensively regulates a field.

C) A state law regulates a subject that belongs exclusively to the federal government.

D) Congress expressly states that it intends to preempt state regulation.

2) What role does Congress play, if any, in the development of interstate compacts?

2)

A) Congress does not play a role.

B) Congress must approve compacts.

C) Congress alone may initiate compacts.

D) Both B and C are correct.

3) Plaintiff obtains a judgment in an Oklahoman court. All of the defendant’s property is located in Nebraska. What constitutional provision provides Plaintiff with a remedy in Nebraska?

3)

A) Equal Protection Clause B) Interstate Commerce Clause C) Interstate Rendition Clause D) Full Faith and Credit Clause 4) Which of the following is the best description of the selective incorporation doctrine?

4)

A) All of the rights found in the Bill of Rights are incorporated and apply against the states.

B) Those rights that are fundamental and necessary to an ordered liberty, but not found in the Bill of Rights are incorporated and apply against the states.

C) Those rights found in the Bill of Rights that are fundamental and necessary to an ordered liberty are incorporated and apply against the states.

D) All of the above.

5) The “New Federalism” refers to:

5)

A) the decrease in federal power.

B) the increase in the importance of state statutory law.

67

C) the increase in the significance of state constitutional law.

D) the increase in federal power.

6) Which of the following models of state-federal constitutionalism is most often applied?

6)

A) Interstitial B) Interspatial C) Primary D) Dual Sovereignty 7) If a state court decides a case on independent and adequate state ground, the Supreme Court:

7)

A) will review all federal issues.

B) will review the federal issues if parallel to the state issues.

C) will review the state issues.

D) will not review the federal issues.

8) Interpretation of state laws are finally decided by:

8)

A) U.S. Supreme Court.

B) State legislatures.

C) State high courts.

D) Congress.

9) Each of the following cases addresses a contemporary issue of federalism EXCEPT:

9)

A) Lawrence v. Texas.

B) Riegel v. Medtronic, Inc. C) Wyeth v. Levine.

D) Altria Group v. Good.

10) What doctrine maintains provides that if a subject of interstate commerce is national in character, then regulation of that subject is exclusively federal?

A) Smith doctrine B) Non-delegation doctrine C) Affectation doctrine D) Cooley doctrine

10)

11) Under the Due Process Clause, in order for a state to tax out-of-state individuals, there be a(n) between a state and the person taxed.

11)

A) long-term relationship B) agreement to tax C) contract D) minimum contact 12) Which case held that the federal government’s Fair Labor Standards Act provisions were binding on the states?

12)

A) New York v. United States B) Garcia v. San Antonio Metro Transit Authority C) U.S. v. Lopez D) U.S. v. Morrison 13) Which constitutional amendment was ratified to counter the Supreme Court’s decision in Chisholm v. Georgia (1793), which held that states may be held liable in federal courts?

13)

A) Tenth Amendment B) Twelfth Amendment C) Fourteenth Amendment D) Eleventh Amendment 14) Which constitutional provision provides that a state’s judicial acts must be given the same effect by the courts of all other states as they receive at home?

14)

A) Interstate Rendition Clause B) Equal Protection Clause C) Full Faith and Credit Clause D) Interstate Commerce Clause 15) The U.S. Supreme Court extended state immunity from liability under the federal ADEA in: A) Chisholm v. Georgia.

B) Board of Trustees of University of Alabama v. Garrett.

C) Kimel v. Florida Board of Regents.

D) Nevada Department of Human Resources v. Hibbs.

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15)

16) The U.S. Supreme Court extended state immunity from liability under the federal Americans with Disabilities Act in:

16)

A) Chisholm v. Georgia.

B) Nevada Department of Human Resources v. Hibb.

C) Board of Trustees of University of Alabama v. Garrett.

D) Kimel v. Florida Board of Regents.

17) The U.S. Supreme Court invalidated a lower court’s application of California law, which resulted in the invalidation of a provision of an arbitration agreement, because it conflicted with the federal objective of encouraging speedy and efficient arbitration in:

17)

A) Preston v. Ferrer.

B) Riegel v. Medtronic, Inc. C) Crosby v. National Trade Council.

D) AT&T v. Concepcion.

18) The U.S. Supreme Court upheld a federal law governing medical devices that preempted state tort law actions for injuries resulting from the medical devices in:

18)

A) Preston v. Ferrer.

B) Riegel v. Medtronic, Inc. C) Crosby v. National Trade Council.

D) AT&T v. Concepcion.

19) The U.S. Supreme Court held that all extensive regulation of foreign affairs by a state is prohibited, either by implicit preemption or simply because the states lack the authority to delve too deeply into international matters in:

19)

A) Preston v. Ferrer.

B) Riegel v. Medtronic, Inc. C) Crosby v. National Trade Council.

D) AT&T v. Concepcion.

20) The U.S. Supreme Court held that the federal government’s extensive regulation of tobacco, including an express preemption of state labeling and warning requirements about smoking and health, did not preempt a state law tort claim for fraudulent advertising by a tobacco company in: A) Altria Group v. Good.

B) Riegel v. Medtronic, Inc.

20)

C) Preston v. Ferrer.

D) Wyeth v. Levine.

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) Under the dormant Commerce Clause, a state law that discriminated against out-of-state participants is presumed invalid.

21)

22) A state law requiring all motor vehicles using the state roads to have special seat belts which are safer than required by federal law is invalid.

22)

23) The dormant Commerce Clause does not limit a state when it is acting as a market participant, rather than as a regulator.

23)

24) For purposes of the Privileges and Immunities Clause of Article IV, a fundamental right is defined as any right found in the Bill of Rights that is intended to protect the individual from excessive behavior of his state.

24)

25) Pursuant to the Supremacy Clause, the federal government has greater authority to regulate the states than the states have to regulate the federal government.

25)

26) Congress may not enact legislation mandating that the states regulate a subject.

26)

27) Congress may not financially coerce the states into pursuing a federal objective.

27)

28) The Eleventh Amendment’s establishment of immunity for the states has been rendered obsolete in recent years through a series of decisions of the U.S. Supreme Court.

28)

29) In Seminole Tribe of Florida v. Florida (1996), the U.S. Supreme Court held that states may not be involuntarily sued (by citizens) in federal court.

29)

30) In Alden v. Maine, the U.S. Supreme Court held that states must consent to be sued in their own courts.

30)

31) State constitutional law may not decrease or limit federally secured rights, but a state may extend civil rights beyond what the federal Constitution secures.

31)

32) The state constitutions for all 50 states and the federal Constitution contain an express right to education.

32)

33) State constitutions are now viewed as an independent source of individual liberties.

33)

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34) The Seventh Amendment’s right to a jury trial in civil cases has been incorporated through the Fourteenth Amendment’s Due Process Clause as a fundamental right.

34)

35) Like the federal Constitution, state constitutions contain declarations or bills of individual rights.

35)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

36) Preemption is the doctrine that once Congress has enacted legislation in a given field, a state may not enact a law inconsistent with the statute.

36)

37) The judicial doctrine providing that even if federal power to regulate interstate and international commerce is not exercised, state power to regulate these areas is sometimes precluded is known as the Commerce Clause.

37)

38) Based on a U.S. Supreme Court from 1851, the Doctrine provides that if a subject of interstate commerce is national in character, then regulation of that subject is exclusively federal.

38)

39) When a state is a(n) in, as opposed to a regulator of, the market, the Dormant Commerce Clause does not apply.

39)

40) If it is determined that Congress has preempted a policy area, all state laws, even if consistent with federal law, are .

40)

41) In Crosby v. National Trade Council (2000), the U.S. Supreme Court held that all extensive regulation of foreign affairs by a state is prohibited, either by implicit preemption or simply because the states lack the authority to delve too deeply into matters.

41)

42) Since the 1819 U.S. Supreme Court decision in McCulloch v. Maryland, it has been clear that states may not the federal government or its subunits.

42)

43) State constitutional law may not decrease or limit federally secured rights, but a state may extend rights what the federal Constitution secures.

43)

44) Some state constitutions protect privacy, whereas the federal Constitution provides for the right to privacy based on an implied right.

44)

45) The Full Faith and Clause based on the requirement of Article IV of the U.S. Constitution provides that a state’s judicial acts must be given the same effect by the courts of all other states as they receive at home.

45)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

46) Full Faith and Credit Clause

A) Judicial doctrine providing that even if federal power to regulate interstate and international commerce is not exercised, state power to regulate these areas is sometimes precluded

46)

47) Preemption

B) An approach to constitutional interpretation that requires state judges to apply the federal Constitution before turning to their state’s constitution

47)

48) Primacy

C) An approach to constitutional interpretation that requires state judges to apply both federal and state constitutions simultaneously

48)

49) Interstitial

D) An approach to constitutional interpretation that requires state judges to apply their state’s constitution before turning to the federal Constitution

49)

50) Selective Incorporation Doctrine

E) The doctrine that once Congress has enacted legislation in a given field, a state may not enact a law inconsistent with the federal statute

50)

51) Dual Sovereignty

F) Under the Due Process Clause of the Fourteenth Amendment, those rights in the federal Bill of Rights that are fundamental and necessary to an ordered liberty are applied against the states. Other incorporation theories exist.

51)

52) Dormant Commerce Clause

G) Clause in the Constitution that means that a state’s judicial acts must be given the same effect by the courts of all other states as they receive at home

52)

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53) Cooley Doctrine

H) A doctrine under which a state court is permitted to acquire personal jurisdiction over a nonresident

53)

54) Minimum Contacts Test

I) Federal judicial review of a state decision in a case that includes both state and federal claims will not occur if the lower court’s decision rested upon adequate and independent state law

54)

55) Adequate and Independent State Grounds Doctrine

J) Provides that if a subject of interstate commerce is national in character, then regulation of that subject is exclusively federal

55)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

56) What are the three instances where the preemption doctrine holds that state regulation is precluded or invalidated by federal regulation?

57) What is the Dormant Commerce Clause?

58) What is the scope of the Eleventh Amendment?

59) Explain how the right to privacy under state constitutions differs from the right to privacy under the U.S. Constitution?

60) Explain whether you would support a constitutional amendment in your state constitution to expand the right to privacy more broadly than the U.S. Constitution.

61) Discuss whether you think all of the provisions in the Bill of Rights should be incorporated to state and local governments, including the Seventh Amendment’s right to a jury trial in civil cases, the Fifth Amendment’s right to grand jury indictment, and the Eighth Amendment’s right to reasonable bail should be incorporated to the states.

1) C 2) B 3) D 4) C 5) C 6) A 7) D 8) C 9) A 10) D 11) D

12) B 13) D 14) C 15) C 16) C 17) D 18) B 19) C 20) A 21) TRUE 22) TRUE 23) TRUE 24) FALSE 25) TRUE 26) TRUE 27) FALSE 28) FALSE 29) TRUE 30) TRUE 31) TRUE 32) FALSE 33) TRUE 34) FALSE 35) TRUE 36) federal 37) Dormant 38) Cooley 39) participant 40) void 41) international 42) tax 43) beyond 44) expressly 45) Credit 46) E

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47) C 48) B 49) A 50) D 51) C 52) A 53) E 54) B 55) D 56) The three instances where the preemption doctrine holds that state regulation is precluded or invalidated by federal regulation are: 1. When Congress expressly states that it intends to preempt state regulation; 2. When a state law is inconsistent with federal law, even though no express preemption statement has been made by Congress; and 3. When Congress has enacted a legislative scheme that comprehensively regulates a field.

57) The Dormant Commerce Clause is a judicial doctrine providing that even if federal power to regulate interstate and international commerce is not exercised, state power to regulate these areas is sometimes precluded.

58) The language of the Eleventh Amendment applies the immunity only to citizens and subjects.

Therefore, the federal government may sue a state and states may sue one another. The Eleventh Amendment’s plain text does not bar citizens from suing their own states. Regardless, the Supreme Court rejected the possibility that a citizen may sue his or her own state in the 1890 case Hans v.

Louisiana. Also, the Eleventh Amendment immunity shields only states, not local forms of government.

59) State constitutional law may not decrease or limit federally secured rights, but a state may extend civil rights beyond what the federal Constitution secures. For example, both Florida and Alaska constitutions expressly protect privacy, whereas the federal Constitution does not. Rather, a national right to privacy was only recently declared by the Supreme Court (as a penumbra or implied protection), and it is somewhat controversial because of the absence of express language in the Constitution establishing the right. The Washington state constitution protects “private affairs,” which has been interpreted more broadly than privacy under the Fourth Amendment.

60) Answers will vary.

61) Answers will vary.

Chapter 8 The Bill of Rights MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Who was primarily responsible for drafting the Bill of Rights?

1)

A) Thomas Paine B) Benjamin Franklin C) Thomas Jefferson D) James Madison 2) According to the readings, which of the following provisions has not been formally applied to the states?

2)

A) Fifth Amendment right against self incrimination B) Fifth Amendment right to a grand jury indictment in felony cases C) First Amendment right to peaceably assemble D) Eighth Amendment right against cruel and unusual punishment 3) How many amendments were originally proposed and submitted to Congress as the initial draft of the Bill of Rights?

3)

A) 8 B) 10 C) 15 D) 12 4) Currently, how many amendments have been added to the Constitution?

4)

A) 26 B) 27 C) 19 D) 10 5) Which theory of individual rights is reflected in the Declaration of Independence provision stating that “all men . . . are endowed by their Creator with certain unalienable Rights?”

A) Compact Theory B) Theory of Alienability C) Natural Rights Theory D) Creationism Theory

77

5)

6) Which theory of individual rights is reflected in the Supreme Court’s ruling in United States v. Verdugo-Urquidez (addressing the issue of whether the Fourth Amendment’s protections against unreasonable searches and seizures apply to foreign citizens who are arrested and whose homes are searched by American agents in other countries)?

6)

A) Theory of Alienability B) Natural Rights Theory C) Creationism Theory D) Compact Theory 7) What constitutional provision has been used to make most of the provisions within the Bill of Rights applicable to the states?

7)

A) Fourteenth Amendment Privileges or Immunities Clause B) Fourteenth Amendment Equal Protection Clause C) Fifth Amendment Due Process Clause D) Fourteenth Amendment Due Process Clause 8) Would a professor at a public university be permitted to lead a class in saying a “Hail Mary” prayer in honor of college basketball team? Why or why not?

8)

A) yes, because the professor is not Congress B) no, because the fourteenth amendment would preclude such activity C) yes, because the professor is not a state D) no, because the first amendment alone would bar such activity 9) The Supreme Court ruled that the right to privacy is constitutionally-protected liberty in:

9)

A) Rochin v. California.

B) Barron v. Baltimore.

C) Adamson v. California.

D) Griswold v. Connecticut.

10) If the Court decides to recognize a constitutional right to die (a right not currently recognized by the Court and not explicitly in the Bill of Rights) and require the states to recognize this right, what doctrine of incorporation would this reflect?

A) selective incorporation B) select incorporation doctrine C) total incorporation doctrine

10)

D) fundamental fairness/implicit in concept of ordered liberty 11) Which right is NOT explicitly mentioned in the Bill of Rights?

11)

A) Right to Grand Jury Indictment in Capital Cases B) Right to Bear Arms C) Right to Due Process D) Right to Privacy 12) What is a “penumbra?”

12)

A) the name of a website for Supreme Court opinions B) a lunar shadow C) an umbrella that doubles as a pen D) the name given to the most junior justice on the Court 13) What phrase is used to describe the theory that governmental power can be limited by enumerating or listing the government’s specific powers in a constitution?

13)

A) res judicata B) inclusio unis est exclusio alterius C) habeas corpus D) corpus maximus 14) According to the readings, which case BEST illustrates the fact that the Supreme Court generally has refrained from imposing any affirmative obligations (as opposed to negative restrictions) on the government when it comes to the Bill of Rights and Due Process Clause?

14)

A) Barron v. Baltimore B) Thompson v. Shillito C) DeShaney v. Winnebago County Department of Social Services D) Roe v. Wade 15) A theory of individual liberties that considers liberties to be the product of a negotiated contract is called:

15)

A) divine theory.

B) compact theory.

C) natural rights theory.

D) instilled theory.

16) Which amendment bars the government from abridging the freedom of

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16)

religion?

A) First Amendment B) Second Amendment C) Third Amendment D) Fourth Amendment 17) Which amendment bars the government against unreasonable searches and seizures?

17)

A) First Amendment B) Second Amendment C) Third Amendment D) Fourth Amendment 18) Which amendment bars the government from infringing the right to bear arms?

18)

A) First Amendment B) Second Amendment C) Third Amendment D) Fourth Amendment 19) Which amendment bars the government from imposing excessive bail?

19)

A) Fifth Amendment B) Eighth Amendment C) Fourth Amendment D) Sixth Amendment 20) Which amendment provides accused persons the right to confront witnesses against them?

A) Fourth Amendment B) Fifth Amendment C) Sixth Amendment D) Eighth Amendment

20)

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) During the states’ ratification debates, many delegates reintroduced objections to ratifying the proposed Constitution without the inclusion of a bill of rights.

21)

22) James Madison originally opposed the inclusion of a bill of rights during the Constitutional Convention.

22)

23) Generally, the powers held by the three branches of government under the Articles of the Constitution are treated as grants or investments of authority.

23)

24) Treating individual liberties as the product of a negotiated contract is known as the natural rights theory.

24)

25) The Preamble and Articles of the U.S. Constitution reflect a social compact or contract between two primary parties—the people and the government.

25)

26) The Fourth Amendment bars government from imposing excessive bail or fines.

26)

27) The Eighth Amendment bars government from imposing cruel and unusual punishment.

27)

28) The Fifth Amendment bars government from compelling persons to testify against themselves in criminal cases.

28)

29) The First Amendment provides for the freedom of speech.

29)

30) The Fifth Amendment provides for the freedom of the press.

30)

31) The right to privacy is expressly enumerated in the Bill of Rights.

31)

32) The Bill of Rights contain an exhaustive list of all protected rights.

32)

33) The Tenth Amendment provides that the powers not given to the federal government are reserved to the states or to the people.

33)

34) Today, all of the Bill of Rights have been applied to the states.

34)

35) The incorporation doctrine is legal theory that maintains that the Bill of Rights (or at least portions thereof) should be incorporated through the Fourteenth Amendment Due Process Clause and made applicable to the states.

35)

36) References to the “state” or the “states” in the Fourteenth Amendment, by implication, also include local governments, such as counties, cities, townships, and villages.

36)

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SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) James

is known as the chief architect of the Bill of Rights.

37)

38) The language in the Amendment suggests that there are other liberties beyond those written in the Bill of Rights that are to be protected against governmental intrusion.

38)

39) Natural theory insists that the rights enumerated in the Bill of Rights are natural, inherent, and unalienable to individuals.

39)

40) The Preamble and Articles of the U.S. Constitution reflect a social compact or between the people and the government.

40)

41) The Tenth Amendment provides that all powers not given to the United States or taken from the states by the Constitution are reserved to the States or the .

41)

42) The Eighth Amendment bars government from imposing cruel and punishment.

42)

43) The Fourth Amendment bars government from violating the right against searches and seizures.

43)

44) In Griswold v. Connecticut, the U.S. Supreme Court recognized the right to based on a penumbra of rights.

44)

45) The incorporation doctrine is a legal theory that maintains that the Bill of Rights should be incorporated through the Amendment Due Process Clause and made applicable to the states.

45)

46) The total incorporation doctrine is a theory held by some jurists and legal scholars maintaining that the Fourteenth Amendment requires all of the provisions of the Bill of Rights to be incorporated and applied to the .

46)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the constitutional amendment listed in Column 1 to the protection listed in Column 2.

47) First Amendment

A) in peacetime, bars government from quartering soldiers in homes without an owner’s consent

47)

48) Second Amendment

B) bars government from imposing excessive bail or fines

48)

49) Third Amendment

C) provides the right to a jury trial in civil cases involving disputes valued over twenty dollars

49)

50) Fourth Amendment

D) bars government from violating the right against unreasonable searches and seizures

50)

51) Fifth Amendment

E) provides that the Constitution’s enumeration of specific rights should not be interpreted to deny other rights retained by the people

51)

52) Sixth Amendment

F) bars government from trying a person twice for the same offense countries.

52)

53) Seventh Amendment

G) provides accused persons the right to a speedy, public, and jury trial in criminal cases

53)

54) Eighth Amendment

H) bars government from infringing on the right to bear arms

54)

55) Ninth Amendment

I)

bars government from abridging the freedom of speech

55)

56) Tenth Amendment

J) provides that all powers not given to the United States or taken from the states by the Constitution are reserved to the States or the people

56)

Match the term listed in Column 1 to its described listed in Column 2.

57) incorporation doctrine

A) a provision found in the Fifth and Fourteenth Amendments that government cannot deprive individuals of life, liberty, or property without due process of law

57)

58) compact theory

B) a theory of individual liberties that considers liberties to be the product of a negotiated contract

58)

59) natural law theory

C) a term used to describe the Constitution as a contract between two primary parties— the people and the government

59)

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60) Due Process Clause

D) a legal theory that maintains that the Bill of Rights (or at least portions thereof) should be incorporated through the Fourteenth Amendment Due Process Clause and made applicable to the states

60)

61) social compact

E) a theory of individual liberties that maintains that liberties are the result of the “laws of nature”

61)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

62) Why did the original U.S. Constitution not contain a Bill of Rights?

63) What is the difference between the compact theory and the natural law theory?

64) What does the Ninth Amendment protect?

65) What are the implicit rights recognized by the U.S. Supreme Court?

66) What does the incorporation doctrine provide?

67) What is the difference between the total incorporation doctrine and the select incorporation doctrine?

68) Discuss which of the first 10 amendments to the U.S. Constitution in the Bill of Rights is most important to you personally. Explain your position.

69) Discuss your position on whether you support the total incorporation doctrine or the select incorporation doctrine.

1) D 2) B 3) D 4) B 5) C 6) D 7) D 8) B 9) D 10) D 11) D 12) B 13) B 14) C 15) B

16) A 17) D 18) B 19) B 20) C 21) TRUE 22) TRUE 23) TRUE 24) FALSE 25) TRUE 26) FALSE 27) TRUE 28) TRUE 29) TRUE 30) FALSE 31) FALSE 32) FALSE 33) TRUE 34) FALSE 35) TRUE 36) TRUE 37) Madison 38) Ninth 39) law 40) contract 41) people 42) unusual 43) unreasonable 44) privacy 45) Fourteenth 46) states 47) D 48) C 49) A 50) B

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51) D 52) E 53) B 54) A 55) C 56) F 57) D 58) B 59) E 60) A 61) C 62) James Madison, the chief architect of the Bill of Rights, initially stated that a a bill of rights was “unnecessary, because it was evident that the general government had no power but what was given it [by the Constitution]” and “dangerous, because an enumeration which is not complete is not safe.” By omitting a bill of rights, some framers argued that citizens could always claim, in the face of governmental intrusion, that because citizens did not specifically limit the nature and extent of their freedoms, they reserved the right to do what they pleased.

63) The compact theory is a theory of individual liberties that considers liberties to be the product of a negotiated contract. Under this approach, rights are derived from an agreement or compact between the individuals being protected and those individuals or institutions providing the protection. Through negotiation, individuals and institutions receive rights, powers, and protections by virtue of compact or constitution. The natural rights theory is a theory of individual liberties that maintains that liberties are the result of the “laws of nature.” This theory recognizes life itself as the source of certain individual rights, which exist independent of any constitution or contract. Natural rights theory insists that the rights enumerated in the Bill of Rights are natural, inherent, and unalienable to individuals.

64) The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This provision was inserted to address the fears of some framers that the rights listed in the new Bill of Rights might be treated as the only individual liberties held by individuals. The Ninth Amendment’s language suggests that there are other liberties beyond those written in the Bill of Rights that are to be protected against governmental intrusion.

65) The Supreme Court has identified a number of rights that are protected under the Bill of Rights even though they are not specifically listed in the document. These include the right to privacy, the right to marry, the right of adults to engage in consensual sexual activity with other adults, and the right to travel freely among the United States.

66) The incorporation doctrine is a legal theory that maintains that the Bill of Rights (or at least portions thereof) should be incorporated through the Fourteenth Amendment Due Process Clause and made applicable to the states. Over time, the U.S. Supreme Court has began to incorporate select provisions of the Bill of Rights through the Fourteenth Amendment’s Due Process Clause, thereby making these provisions applicable to the states.

67) The total incorporation doctrine is a theory held by some jurists and legal scholars maintaining that the Fourteenth Amendment requires all of the provisions of the Bill of Rights to be incorporated and applied to the states. The select incorporation doctrine is a theory held by some jurists and legal

scholars that maintains that only select portions of the Bill of Rights, which are deemed to involve “preferred freedoms” or rights “implicit in the concept of ordered liberty,” should be incorporated through the Due Process Clause and made applicable to the states.

68) Answers will vary.

69) Answers will vary.

87

Chapter 9 First Amendment Freedoms of Expression, Association, and Press MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which case (majority opinion) adopted the “clear and present danger” test as a means for resolving disputes involving the freedom of speech?

1)

A) Virginia v. Hicks B) Schenck v. United States C) Brandenburg v. Ohio D) Gitlow v. New York 2) Which Supreme Court Justice has made it known he would like to review restrictions on commercial speech under strict scrutiny analysis?

2)

A) Anthony Kennedy B) David Souter C) Sonia Sotomayor D) Clarence Thomas 3) If a professor at a public school imposes a policy barring students from wearing all types of hats in the classroom, this would most appropriately be labeled as a:

3)

A) ban on protected speech.

B) content-based limitation on political speech.

C) neutral law that may impact students’ expression.

D) regulation of protected speech.

4) Which of the following cases actually sided with the rights of individual expression under the first amendment?

4)

I. Gitlow v. New York II. Texas v. Johnson III. Brandenburg v. Ohio IV. Schenck v. United States A) I, II B) II, III C) II, V D) I, II, III 5) If a broadcast journalist reports false information about a non-public figure,

5)

thereby resulting in damages to a victim, what would this illustrate?

A) shield law B) slander C) libel D) reporter’s privilege 6) What problem did James Madison address in Federalist 10 that relates to the potential for individual interests to override the common good?

6)

A) splinter groups B) factions C) bureaucrats D) lobbying groups 7) Within free speech jurisprudence, what term is used to describe the idea that multiple ideas or forms of expression should compete against one another so that others may consider them?

7)

A) marketplace of ideas B) global competition C) quid pro quo D) ideas exchange commission 8) What case BEST illustrates symbolic speech?

8)

A) Brandenburg v. Ohio B) Texas v. Johnson C) Schenck v. United States D) Gitlow v. New York 9) A law that regulates more speech than is necessary to accomplish a government objective will most likely violate which doctrine?

9)

A) bad tendency B) clear and present danger C) vagueness D) overbreadth 10) Which of the following is NOT considered a public forum within free speech jurisprudence?

A) prisons B) public sidewalks

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10)

C) courthouse lawns D) public parks 11) Which of the following is NOT a standard used to judge obscenity under term in Miller v. California (1973)?

11)

A) The work taken as a whole involves deviant sexual activity.

B) The work taken as a whole appeals to a prurient interest in sex.

C) The work lacks serious literary, artistic, political, or scientific value.

D) The work portrays sexual conduct in a patently offensive way.

12) Which of the following is NOT considered per se unprotected speech under the First Amendment?

12)

A) false commercial advertising B) child pornography C) fighting words D) offensive speech 13) A false publication in a newspaper that causes damages to a non-public figure is called?

13)

A) falsification B) libel C) slander D) written tort 14) What element must be proven in order for a public figure to successfully bring a defamation case?

14)

A) libel B) slander C) hostile intent D) malice 15) What constitutional standard of scrutiny is applied to regulations of commercial speech?

A) intermediate scrutiny B) rational basis C) strict scrutiny D) business necessity

15)

16) Which liberty is NOT specifically stated in the text of the first amendment?

16)

A) freedom of association B) freedom of speech C) freedom of the press D) freedom to petition government for redress of grievances 17) What name is given to certain forms of state legislation designed to protect news reporters from revealing the identity of their confidential news sources?

17)

A) reporter shield laws B) confidential source protection laws C) first amendment enhancement statutes D) confidentiality statutes 18) Where the press seeks to cover certain high-profile judicial proceedings, the courts must weigh the right of the defendant to receive a fair trial, as protected by the Amendment, against the right of a free press.

18)

A) Fourth B) Fifth C) Sixth D) Eighth 19) Under the strict scrutiny test, the government must prove that its policy is to promote a governmental interest.

19)

A) reasonable/compelling B) necessary/reasonable C) substantially related/compelling D) necessary/compelling 20) What type of constitutional scrutiny would most likely be applied to a governmental ban on political speech?

20)

A) rational basis B) strict scrutiny C) intermediate scrutiny D) Central Hudson test 21) A law regulating speech that fails to sufficiently define its terms would most likely be unconstitutional based on the doctrine.

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21)

A) rational basis B) strict scrutiny C) overbreadth D) vagueness 22) In which U.S. Supreme Court case did the Court hold that New Jersey could not enforce a state public accommodations law, which barred discrimination based on sexual orientation based on the organization’s right to the freedom of association?

22)

A) Texas v. Johnson B) Boy Scouts of America v. Dale C) Gitlow v. New York D) Schenck v. United States TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

23) Congress has authority to regulate the desecration of the flag of the United States, even if the desecration is considered symbolic speech.

23)

24) In examining the government’s regulation of speech, the first issue that must be addressed is whether the government is regulating the expression of ideas or harmful behavior.

24)

25) Under the Brandenburg Test, the government may not suppress speech unless the speech is “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”

25)

26) The balancing test used to judge freedom of speech controversies has evolved over time.

26)

27) The overbreadth doctrine is a constitutional theory of due process that generally provides that the government cannot regulate or prohibit more speech than is necessary to address the identified harm.

27)

28) A law that bans “indecent” communications on the Internet, without a more precise definition, and not a readily and commonly understood term, would be considered a violation of the First Amendment under the overbreadth doctrine.

28)

29) Although the government may prohibit depictions of child pornography, it may not ban all forms of expression that “appear to be” child pornography because such a ban is likely to capture expression that does not include depictions of actual children.

29)

30) The clear and present danger test was the earliest test used by the U.S. Supreme Court to interpret and apply the Free Speech Clause.

30)

31) A public sidewalk is considered to be a nonpublic forum.

31)

32) In most cases, the government will be given greater leeway to regulate speech in nonpublic forums than in public forums.

32)

33) In Morse v. Frederick (2007), the U.S. Supreme Court upheld a public school’s suspension of a student who held a vaguely written pro-drug message at a school-sponsored.

33)

34) The freedom of association is based on the language in the Fourth Amendment.

34)

35) Fighting words are considered a form of protected speech under the First Amendment.

35)

36) Libel is a form of unprotected speech under the First Amendment.

36)

37) A prior restraint is an attempt by government to prevent or restrain expression, including press publication, before it is uttered.

37)

38) In cases where the government attempts to block access to information by the press, the First Amendment interests of the press are often balanced against other competing constitutional rights and powers.

38)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

39) Viewpoint means that the government does not favor one side or another within a given subject matter of speech.

39)

40) Subject-matter neutrality, also known as neutrality, means that the government, in attempting to regulate speech, is not discriminating against speech based on its content or subject matter.

40)

41) The doctrine is a constitutional theory of due process that generally provides that the government cannot regulate or prohibit more speech than is necessary to address the identified harm.

41)

42) The overbreadth doctrine is grounded in notions of due

42)

.

43) In FCC v. Fox (2012), the U.S. Supreme Court rejected a Federal Communications Commission (FCC) procedure used to sanction television stations for “indecency” violations involving “fleeting expletives” broadcast during live programs on the basis of the doctrine.

43)

44) Public are properties historically associated with the exercise of First Amendment rights, including public sidewalks, parks, and cartilages outside courthouses and statehouses.

44)

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45) Military bases, jails, and certain interior portions of public buildings are considered forums and places that are not historically associated with the exercise of First Amendment rights.

45)

46) The freedom of association is based on the language in the Amendment.

46)

47) A reporter shield law protects reporters from being compelled to reveal their news sources.

47)

48) A prior is an attempt by government to prevent or restrain expression, including press publication, before it is uttered.

48)

49) Obscenity is a form of

49)

sexual expression.

50) The Miller Test is a standard used to judge whether a material is .

50)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2.

51) Miller Test

A) expression that is directly aimed at insulting, derogating, or intimidating a particular class of individuals, often based on race, sex, religion, or ethnicity

51)

52) hate speech

B) the government, in attempting to regulate speech, is not discriminating against speech based on its content or subject matter

52)

53) strict scrutiny test

C) a constitutional theory of due process that maintains that the government cannot impose legal standards that the average person cannot or is not likely to understand

53)

54) public forums

D) a constitutional theory of due process that generally provides that the government cannot regulate or prohibit more speech than is necessary to address the identified harm

54)

55) content neutrality

E) a category of unprotected speech that “by their very utterance inflict injury or tend to incite an immediate breach of the peace”

55)

56) vagueness doctrine

F) a legal standard requiring the government to prove that its policy is necessary (or narrowly tailored) to promote a compelling

56)

governmental interest 57) overbreadth doctrine

G) properties historically associated with the exercise of First Amendment rights, including public sidewalks, parks, and cartilages outside courthouses and statehouses

57)

58) fighting words

H) a standard used to judge whether a material is obscene

58)

Match the term listed in Column 1 to its description in Column 2.

59) factions

A) individual or isolated interests that can destroy or substantially impair government if they are allowed to override the common good

59)

60) marketplace of ideas

B) a government restriction on speech that restricts speech but allows the expression in certain given contexts

60)

61) nonpublic forums

C) a test used by the Court to interpret and apply the Free Speech Clause, which allows government to predetermine and ban types of speech that may have a tendency to bring about harm, regardless of whether the speech, in actuality, poses a clear and present danger

61)

62) viewpoint neutrality

D) a governmental policy barring a particular form of expression at any time or place or in any manner

62)

63) time, place, and manner restriction

E) a term used to require the government not to favor one side or another within a given subject matter of speech

63)

64) bad tendency test

F) a phrase used in some free speech cases to describe the type of environment the First Amendment fosters for individuals to sell, purchase, and evaluate different ideas through speech

64)

65) ban on speech

G) places that are not historically associated with the exercise of First Amendment rights. Such locations may include military bases, jails, and certain interior portions of public buildings

65)

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ESSAY. Write your answer in the space provided or on a separate sheet of paper.

66) What is content neutrality?

67) What is the difference between the vagueness and overbreadth doctrines?

68) What is the difference between a public forum and a nonpublic forum?

69) What are the forms of speech that are not protected under the First Amendment?

70) What is the basis for the right to the freedom of association?

71) What does a reporter shield law protect?

72) Discuss whether you would support or oppose a constitutional amendment that would allow the United States Congress to prohibit statutorily the physical desecration of the flag of the United States.

Explain your position.

73) In Snyder v. Phelps, the U.S. Supreme Court held that a funeral protest by members of the Westboro Baptist Church was protected by the First Amendment and that a jury verdict siding with a family whose son had died on active duty in Iraq could not stand. In an 8-1 ruling, the Court upheld the right of protestors to express their views that the deaths of American service members in the Iraq War was the result of the nation’s tolerant views toward homosexuality. The Court found that, although the protesters’ expression may be viewed as outrageous and offense by many, it nonetheless was protected because it related to matters of public concern and was expressed in a public forum. Discuss your reaction to the Snyder v. Phelps case.

1) C 2) D 3) C 4) B 5) B 6) B 7) A 8) B 9) D 10) A 11) A 12) D 13) B 14) D 15) A 16) A 17) A

18) A 19) D 20) B 21) D 22) B 23) FALSE 24) TRUE 25) TRUE 26) TRUE 27) TRUE 28) FALSE 29) TRUE 30) TRUE 31) FALSE 32) TRUE 33) TRUE 34) FALSE 35) FALSE 36) TRUE 37) TRUE 38) TRUE 39) neutrality 40) content 41) overbreadth 42) process 43) vagueness 44) forums 45) nonpublic 46) First 47) confidential 48) restraint 49) unprotected 50) obscene 51) H 52) A

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53) F 54) G 55) B 56) C 57) D 58) E 59) A 60) F 61) G 62) E 63) B 64) C 65) D 66) Content neutrality (also known as subject-matter neutrality) means that the government, in attempting to regulate speech, is not discriminating against speech based on its content or subject matter. For example, a law that punishes “unruly behavior” takes no position on the content of speech that might result in a violation of this standard. However, a governmental action that prohibits public displays regarding war, either pro or con, would be an example of a content-based regulation of speech because it targets a specific subject matter for regulation.

67) The vagueness doctrine is a constitutional theory of due process that maintains that the government cannot impose legal standards that the average person cannot or is not likely to understand. The overbreadth doctrine is a constitutional theory of due process that generally provides that the government cannot regulate or prohibit more speech than is necessary to address the identified harm.

68) Public forums are properties historically associated with the exercise of First Amendment rights, including public sidewalks, parks, and cartilages outside courthouses and statehouses. Nonpublic forums are places that are not historically associated with the exercise of First Amendment rights.

Such locations may include military bases, jails, and certain interior portions of public buildings.

69) The U.S. Supreme Court has often noted that certain forms of speech are less protected or unprotected under the First Amendment. The Court has identified forms of expression, such as obscenity, child pornography, fighting words, defamation, and commercial speech, as types of speech that are somewhat removed from the pure political speech.

70) The First Amendment’s textual reference to “the right of the people to peaceably assemble, and to petition the Government for a redress of grievances” offers a constitutional foundation for a right that is not explicitly mentioned in the Bill of Rights—the freedom of association. Essentially, this freedom includes the right of individuals to gather together and express themselves collectively.

71) In many states, the protection of the press is enhanced by state laws that afford journalists with special privileges, including so-called reporter shield laws. Generally, these laws prevent reporters from being compelled to reveal their confidential news sources. In these jurisdictions, legislative and judicial efforts have attempted to fill the First Amendment void by protecting and enhancing the status of the press.

72) Answers will vary.

73) Answers will vary.

99

Chapter 10 Congress MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) In which case can the following quotation be found? “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs . . . .”

1)

A) Abington School Dist. v. Schempp B) Employment Division v. Smith C) Engel v. Vitale D) Lemon v. Kurtzman 2) Which of the following is NOT considered to be a current mode of analysis used by the Court to review alleged violations of the Establishment Clause?

2)

A) non-denominational test B) Lemon test C) endorsement test D) coercion test 3) Which view of the Establishment Clause would allow greater interplay between government and religion?

3)

A) accommodationist view B) high-wall theory C) conscientious theory D) separationist view 4) Between 1963 and 1990, which standard of review was used by the Court to evaluate free exercise claims?

A) neutrality test B) rational basis test C) Lemon test D) intermediate scrutiny E) strict scrutiny

4)

5) Each of the following is a standard under the Lemon test EXCEPT:

5)

A) law’s primary effect must neither advance nor inhibit religion.

B) law must give equal access to all religions.

C) law must have a secular purpose.

D) law must not foster an excessive entanglement.

6) What document written by James Madison is frequently used when interpreting and discussing the religion clauses:

6)

A) Memorial and Remonstrance against Religious Assessments B) The Religious Manifesto C) Federalist 70 D) Federalist 10 7) Which case limited Congressional efforts to restore strict scrutiny analysis in free exercise cases?:

7)

A) Sherbert v. Verner B) Wisconsin v. Yoder C) City of Boerne v. Flores D) Employment Division v. Smith 8) The Court’s decision is Lee v. Weisman BEST illustrates which approach (test)under the Establishment Clause?

8)

A) Endorsement Test B) Lemon test C) Coercion Test D) Neutrality test 9) What law did Congress pass in an effort to reverse the consequences of the Court’s opinion in Employment Division v. Smith?

A) The Religious Tolerance Restoration Act B) The Religious Freedom Restoration Act C) The Strict Scrutiny Restoration Act D) Religious Equality Bill

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9)

10) Which of the following tests reflects the most accommodationist approach toward the Establishment Clause?

10)

A) Neutrality test B) Endorsement test C) Coercion test D) Lemon test 11) Which of the following tests reflects the most separationist approach toward the Establishment Clause?

11)

A) Neutrality test B) Endorsement test C) Coercion test D) Lemon test 12) Which of the following tests is the most accommodationist approach toward the Free Exercise Clause?:

12)

A) Coercion test B) Neutrality test C) Strict Scrutiny test D) Endorsement test 13) In which case did the Court uphold a law prohibiting polygamy as it applied to a Mormon who allegedly had married a second wife?:

13)

A) Reynolds v. United States B) Employment Division v. Smith C) Sherbert v. Verner D) Wisconsin v. Yoder 14) Which case involved an Establishment Clause challenge to the “under god” provision within the Pledge of Allegiance?

A) Van Orden v. Perry B) Reynolds v. United States C) Sherbert v. Verner D) Newdow v. United States

14)

15) In which case did the Court uphold the public display of the Ten Commandments

15)

A) McCreary v. ACLU B) County of Allegheny v. ACLU C) Perry v. VanOrden D) Lynch v. Donnelly 16) In which case did the Court uphold portions of the Religious Land Use and Institutionalized Persons Act of 2000?

16)

A) Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, et al.

B) City of Boerne v. Flores C) McCreary v. ACLU D) Cutter v. Wilkinson 17) In Free Exercise cases, what terms is used to describe a person who is seeking an exemption from fighting in a war based on religious convictions?

17)

A) Soldier of God B) Conscientious Objector C) Abstainer D) Religious Convict 18) What is the name of the U.S. Supreme Court case that held that a closely held corporation could assert religious freedoms under the Religious Freedom Restoration Act (RFRA) in that it would not have to provide employee health-care coverage for contraceptives under the federal Affordable Care Act?

18)

A) Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, et al.

B) Hobby Lobby v. Burwell C) Cutter v. Wilkinson D) City of Boerne v. Flores 19) Which U.S. Supreme Court case decided in 1984 applied the Lemon test to rule hat a crèche display, which included a Santa Claus, reindeer, carolers, and a “Seasons Greetings” sign, did not violate the Establishment Clause?

A) Hobby Lobby v. Burwell B) Newdow v. United States Congress C) City of Boerne v. Flores D) Lynch v. Donnelly

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19)

20) Which U.S. Supreme Court case held that a Judeo-Christian prayer offered during a public-school graduation ceremony violated the Establishment Clause?

20)

A) Hobby Lobby v. Burwell B) Lee v. Weisman C) Newdow v. United States Congress D) Lynch v. Donnelly MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

21) In December 1785, James Madison introduced a bill authored by Thomas Jefferson to the Virginia Assembly that included, among other things, a “Bill for Establishing Religious Freedom.”

21)

22) The Free Exercise Clause and Establishment Clause are found in Article I of U.S. Constitution.

22)

23) The First Amendment expressly defines the term “respecting” in the Establishment Clause.

23)

24) The separationist approach to the First Amendment religion clauses is an interpretation of the religion clauses that maintains that it is appropriate for government to accommodate or otherwise assist religious interests or organizations.

24)

25) At times, the U.S. Court had taken both an accommodationist approach and a separationist approach to the First Amendment.

25)

26) The U.S. Supreme Court has incorporated the First Amendment religion clauses through the Fourteenth Amendment Due Process Clause, thereby making them applicable to state and local governments.

26)

27) An executive order signed by the President cannot be a violation of the Establishment Clause or the Free Exercise Clause since the beginning of the First Amendment includes the phrase “Congress shall make no law” in the text.

27)

28) The Lemon test is a test used by courts to interpret the Establishment Clause.

28)

29) The Lemon test was adopted by the 1971 U.S. Supreme Court Lemon v.

Kurtzman.

29)

30) Under the coercion test, the U.S. Supreme Court essentially collapses the first two questions of the Lemon test (the secular purpose and primary effect requirements) by asking the more general question of whether the government’s activity conveys a message of endorsement or disapproval of religion.

30)

31) The compelling governmental interest test is also known as the strict scrutiny test.

31)

32) Under the strict scrutiny test, the courts will uphold a law if it is rationally related to a legitimate government purpose.responsibility of trying impeachment cases.

32)

33) The neutrality test is an approach to free exercise cases adopted in Employment Division v. Smith (1990) that maintains that governmental policies that are neutral in form and generally applied will be deemed constitutional, regardless of their adverse impact on certain religious practices.

33)

34) In Burwell v. Hobby Lobby (2015), the U.S. Supreme Court held that a closely held corporation could assert religious freedoms under the Religious Freedom Restoration Act (RFRA) in that it would not have to provide employee health-care coverage for contraceptives under the federal Affordable Care Act.

34)

35) The U.S. Supreme Court the Religious Freedom Restoration Act (RFRA) as it applied to the states, finding that the Act went beyond the constitutional authority of Congress to regulate state policy-making in matters affecting religious exercise.

35)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

36) While serving in the First Congress under the new constitution, James Madison was appointed to the Select Committee on Constitutional Amendments, whose primary responsibility was to develop a Bill of for the Constitution.

36)

37) James Madison wrote the 1785 publication entitled Memorial and Remonstrance Against Assessments which was written in opposition to the General Assessment Bill that was proposed in 1784 by the Virginia State Assembly.

37)

38) The approach to the First Amendment religion clauses is an interpretation of the religion clauses that maintains that it is appropriate for government to accommodate or otherwise assist religious interests or organizations.

38)

39) The separationist approach is a view of the religion clauses that generally

39)

105

asserts that government should remain from religious activity.

separate or removed

40) To fully understand the scope of the religion clauses, one must appreciate how the U.S. Court has interpreted and enlarged the critical terms of these provisions.

40)

41) The two religion clauses in the First Amendment are the Establishment Clause and Free Clause.

41)

42) The Lemon test is a legal standard developed by the U.S. Supreme Court in 1971 to evaluate Clause cases.

42)

43) The test provides that government may not take action that makes it appears as though it is endorsing a particular faith.

43)

44) The neutrality test is an approach to free cases adopted in Employment Division v. Smith (1990) that maintains that governmental policies that are neutral in form and generally applied will be deemed constitutional, regardless of their adverse impact on certain religious practices.

44)

45) The Religious Freedom Restoration Act (RFRA) is a law passed by Congress in 1993 that sought to reinstate the strict standard for free exercise cases.

45)

MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

Match the term listed in Column 1 to its description in Column 2.

46) Religious Freedom Restoration Act

A) a constitutional litmus test that weighs the government’s interest in advancing a particular policy against the free exercise interests of the individual. In order for the government’s interest to outweigh the individual’s, the government must prove that its interest is necessary to promote a compelling governmental interest

46)

47) compelling governmental interest test

B) a legal standard used to evaluate Establishment Clause cases that essentially asks whether the government is acting in a manner that may have a coercive effect on individuals to support or participate in a particular religion.

47)

48) coercion test

C) a law passed by Congress in 1993 that sought to reinstate the strict scrutiny standard for free exercise cases

48)

49) endorsement test

D) a legal standard used to assess Establishment Clause issues where the court asks the more general question of whether the government’s activity conveys a message of endorsement or disapproval of religion

49)

50) Lemon test

E) an interpretation of the religion clauses that maintains that it is appropriate for government to accommodate or otherwise assist religious interests or organizations

50)

51) Free Exercise Clause

F) a view of the religion clauses that generally asserts that government should remain strictly separate or removed from religious activity

51)

52) Establishment Clause

G) clause in the First Amendment that generally regulates the extent to which government can participate in, assist, or otherwise further religious activity or organizations

52)

53) accommodationist approach

H) clause in the First Amendment that addresses the extent to which government can interfere with an individual’s religious practices

53)

54) separationist approach

I) a legal standard developed by the Court in 1971 to evaluate Establishment Clause cases that requires the challenged government action to meet three guidelines:

54)

(1)

it must have a secular (nonreligious)purpose,

(2)

its primary effect must neither advance nor inhibit religion, and

(3)

it must not foster an excessive entanglement with religion and government

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ESSAY. Write your answer in the space provided or on a separate sheet of paper.

55) What role did James Madison play in the enactment of the Establishment Clause and Free Exercise Clause?

56) Explain the difference between the accommodationist approach and the separationist approach to the First Amendment religion clauses.

57) Explain the three tests used by the Court to interpret and apply the Establishment Clause.

58) What does the neutrality test provide?

59) What did Congress attempt with enactment of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act? 60) Discuss your position on whether the Free Exercise Clause prohibits a state from regulating consenting adults from engaging in polygamy or plural marriage.

61) Explain your position on whether the phrase “In God We Trust” in currency violates the Establishment Clause? Explain your position.

1) B 2) A 3) A 4) E 5) B 6) A 7) C 8) C 9) B 10) C 11) D 12) C 13) A 14) D 15) C 16) D 17) B 18) B 19) D 20) B 21) TRUE 22) FALSE

23) FALSE 24) FALSE 25) TRUE 26) TRUE 27) FALSE 28) TRUE 29) TRUE 30) FALSE 31) TRUE 32) FALSE 33) TRUE 34) TRUE 35) TRUE 36) Rights 37) Religious 38) accommodationist 39) strictly 40) Supreme 41) Exercise 42) Establishment 43) endorsement 44) exercise 45) scrutiny 46) C 47) A 48) B 49) E 50) D 51) E 52) D 53) A 54) B 55) C

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56) James Madison is the primary architect of the Establishment Clause and Free Exercise Clause. Prior to drafting the Bill of Rights, Madison worked to protect religious freedoms in Virginia. One of Madison’s most well-known statements on religious freedom is his 1785 publication Memorial and Remonstrance Against Religious Assessments. While serving in the First Congress under the new constitution, Madison was appointed to the Select Committee on Constitutional Amendments, whose primary responsibility was to develop a Bill of Rights for the Constitution.

57) The accommodationist approach is an interpretation of the religion clauses that maintains that it is appropriate for government to accommodate or otherwise assist religious interests or organizations.

The separationist approach is a view of the religion clauses that generally asserts that government should remain strictly separate or removed from religious activity. Under this approach, it is asserted that government should not aid, fund, or otherwise assist religious organizations or individual religious activity.

58) The three tests or standards used by the Court to interpret and apply the Establishment Clause are: 1. the Lemon test, which requires the government to refrain from policies that: a. have the purpose of advancing or inhibiting religion, b. have the primary effect of advancing or inhibiting religion, and/or c. results in an excessive entanglement between religion and government; 2. the endorsement test provides that government may not take action that makes it appears as though it is endorsing a particular faith; and 3. the coercion test maintains that government may not take act that may tend to coerce individuals into participating in religious activity.

59) The neutrality test is an approach to free exercise cases adopted in Employment Division v. Smith (1990) that maintains that governmental policies that are neutral in form and generally applied will be deemed constitutional, regardless of their adverse impact on certain religious practices.

60) The Religious Freedom Restoration Act (RFRA) is a law passed by Congress in 1993 that sought to reinstate the strict scrutiny standard for free exercise cases. The RFRA bars the government from substantially burdening an individual’s exercise of religion, even if such burden stems from a neutral and generally applicable law, unless the government can demonstrate that the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering such interest. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is another law passed by Congress that attempted to reinstate the strict scrutiny standard in Free Exercise Clause cases.

RLUIPA reinstates strict scrutiny analysis in two types of cases: (1) those involving land-use regulation and (2) those involving religious exercise by institutionalized persons.

61) Answers will vary.

62) Answers will vary.

Chapter 11 Substantive Due Process: Privacy, Personal Autonomy, and Other Liberties MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which case addresses so-called partial-birth abortions?

1)

A) Webster v. Reproductive Health Services B) Gonzalez v. Carhart C) Rust v. Sullivan D) Planned Parenthood v. Casey 2) Which U.S. Supreme Court case adopted the undue burden standard for abortion case?

2)

A) Webster v. Reproductive Health Services B) Gonzalez v. Carhart C) Roe v. Wade D) Planned Parenthood of Pennsylvania v. Casey 3) A penumbra is a:

3)

A) broken umbrella.

B) lunar shadow.

C) type of abortion procedure.

D) confidential news source.

4) Generally speaking, which theory of constitutional interpretation is least likely to recognize more contemporary forms of privacy?

4)

A) original understanding B) original intent C) strict constructionist D) all of the above 5) What amendment suggests that there are more liberties than those specifically enumerated in the Bill of Rights?

A) Fourteenth B) Third C) Fifth D) Ninth

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5)

6) What form of constitutional scrutiny requires the government to show that its intrusion is necessary (or narrowly tailored) to meet a compelling governmental interest?

6)

A) necessary and proper B) undue burden C) rational basis D) strict scrutiny 7) Which case recognized a constitutional right to privacy?

7)

A) Lochner v. New York B) Bowers v. Hardwick C) Glucksberg v. Washington D) Griswold v. Connecticut 8) Which case does NOT involve abortion regulations?

8)

A) Gonzales v. Oregon B) Bellotti v. Baird C) Bigelow v. Virginia D) Harris v. McRae 9) What term is used to describe a legal document that provides a person’s wishes in case of a medical emergency?

9)

A) Legal Directive B) Power of Attorney C) Living Will D) Delegation of Death 10) What case was reversed by the Court’s decision in Lawrence v. Texas?

10)

A) Santa Clara County v. Southern Pacific Railroad Co. B) Washington v. Glucksberg C) Gonzalez v. Oregon D) Bowers v. Hardwick 11) The Court’s theory of “liberty of contract” was developed during what era of the Court?

A) Laissez Faire era B) Economic freedom era

11)

C) The Roosevelt Court era D) Dark era 12) What case marks the “Switch in Time That Saved Nine?”

12)

A) Agins v. Tiburon B) West Coast Hotel v. Parrish C) Lochner v. New York D) Fletcher v. Peck 13) What event is regarded as the moment the Court began to move away from its notion of liberty of contract?

13)

A) The Great Depression B) World War I C) World War II D) The switch in time that saved nine 14) Each of the following cases involves a dispute over the “takings clause” EXCEPT:

14)

A) Fletcher v. Peck.

B) Nollan v. California Coastal Commission.

C) Pennsylvania Coal Co. v. Mahon.

D) Agins v. Tiburon.

15) Each of the following cases involves a dispute surrounding the contract clause EXCEPT:

15)

A) Trustees of Dartmouth College v. Woodward.

B) Home Building & Loan Association v. Blaisdell.

C) Fletcher v. Peck.

D) Kelo v. City of New London.

16) What term is used to describe the ability of government to take private property for public use under the Fifth Amendment?

A) eminent domain B) quarantine C) Seizure D) Confiscation

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16)

17) Which case involves the so-called “liberty of contract?”

17)

A) Kelo v. City of New London B) Lochner v. New York C) Lucas v. South Carolina Coastal Commission D) Hawaii Housing Authority v. Midkiff 18) Which case held that state bans on same-sex marriage were unconstitutional because they violated liberty interests under the Fourteenth Amendment Due Process Clause?

18)

A) Lochner v. New York B) United States v. Windsor C) Kelo v. City of New London D) Obergefell v. Hodges 19) Which U.S. Supreme Court Justice, who wrote the majority opinion in both Obergefell v. Hodges and United States v. Windsor, relied on general principles of due process and equal protection, without establishing any concrete tests or doctrines concerning individual liberty or discrimination based on sex or sexual orientation?

19)

A) Sonia Sotomayor B) Clarence Thomas C) Anthony Kennedy D) Ruth Bader Ginsburg 20) Which right concerns the type or substance of behavior that is included as a “liberty” under the due process clause?

20)

A) right to privacy B) equal protect C) substantive due process D) procedural due process 21) The U.S. Supreme Court found that the Due Process Clause protected the personal autonomy of individuals to make decisions regarding adult, consensual, and private sexual activity in which case?

A) Lawrence v. Texas B) Gonzalez v. Oregon C) Washington v. Glucksberg D) Bowers v. Hardwick

21)

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

22) The Due Process Clause is found in both the Fifth and Fourteenth Amendments.

22)

23) Procedural due process is the requirement that government treat persons fairly while it attempts to interfere with their liberty interests.

23)

24) Substantive due process concerns the type or substance of behavior that is included as a “liberty” under the due process clause.

24)

25) The strict constructionist approach to interpreting the Due Process Clause in the U.S. Constitution looks to the original intent to assess what the authors of the due process clause meant or intended by the term “liberty.”

25)

26) The Ninth Amendment suggests that beyond those listed in the First through Eighth Amendments, there are other unenumerated rights that individuals retain that are to be protected against governmental intrusion.

26)

27) In Roe v. Wade, the U.S. Supreme Court ruled that there are no limits to the right to privacy of a woman’s right to choose to have an abortion.

27)

28) In Planned Parenthood of Southern Pennsylvania v. Casey (1992), the U.S. Supreme Court moved away from the trimester-based approach adopted in Roe v. Wade and began using framework that divided pregnancy into two stages—previability and postviability.

28)

29) The holding of the Obergefell v. Hodges (2015) case is limited to the facts of the particular case and will not serve as precedent for future cases dealing with civil rights and marriage rights.

29)

30) In Obergefell v. Hodges (2015) where the court ruled that state bans on same-sex marriage were unconstitutional, the U.S. Supreme Court based its decision on both the Due Process Clause and the Equal Protection Clause.

30)

31) Since 1934, the U.S. Supreme Court generally has interpreted the Contract Clause in a manner that allows government to enact legislation that benefits the general welfare even if it interferes with private contracts.

31)

32) The laissez-faire era or Lochner era of the Court remains the current law today with respect to the Due Process Clause and economic liberty.

32)

33) In Lawrence v. Texas, the U.S. Supreme Court reversed its decision in Bowers v. Hardwick based on interpretation of the Fourteenth Amendment Due Process Clause.

33)

34) The holding in Lawrence v. Texas is considered a landmark ruling in terms of procedural due process rights.

34)

35) In Kelo v. City of New London (2005), the U.S. Supreme Court held that a

35)

115

local government’s taking of private homes for private land redevelopment was considered a public purpose.

36) The Takings Clause is a provision in Article I, Section 10, of the Constitution.

36)

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) Procedural due process is the requirement that government treat persons fairly while it attempts to interfere with their liberty .

37)

38) The Due Process Clause is a provision found in both the Fifth and Amendments.

38)

39) Substantive due process concerns the type or substance of behavior that is included as a(n) under the due process clause.

39)

40) A strict approach to interpreting the Constitution is one that strictly construes the explicit words of the Constitution to determine whether a particular right is protected.

40)

41) Some U.S. Supreme Court justices take the original approach to interpreting the Constitution and use historical analysis to assess what the authors of the Constitution meant or intended by a particular term or provision, including the term liberty within the Due Process Clause.

41)

42) Some U.S. Supreme Court justices take the original approach to interpreting the Constitution and use what the legal culture understood (as opposed to what the drafters intended) under the provision when it was originally written.

42)

43) The Amendment which provides that “[t]he enumeration of certain rights in the bill of rights, shall not be construed to deny or disparage others retained by the people” is considered one source to recognizing the right of privacy.

43)

44) In Planned Parenthood of Southern Pennsylvania v. Casey (1992), the U.S. Supreme Court adopted an undue standard for abortion cases.

Under this standard, the Court asks whether the challenged regulation imposes an undue burden on a woman’s right to access or obtain an abortion.

44)

45) In Obergefell v. Hodges (2015), the U.S. Supreme Court ruled that state bans on same-sex marriage were unconstitutional because they violated liberty interests under the Amendment Due Process Clause.

45)

46) In Lawrence v. Texas, the U.S. Supreme Court struck down a state law banning same-sex .

46)

47) The eminent domain power is found in the

Amendment.

47)

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the term listed in Column 1 to its description in Column 2 48) liberty of contract

A) a provision found in both the Fifth and Fourteenth Amendments that requires government not to deny life, liberty, or property without due process of law

48)

49) Due Process Clause

B) an approach to interpreting the Constitution that is similar to original intent, except that it seeks to determine what the legal culture understood (as opposed to what the drafters intended) under the provision when it was originally written

49)

50) procedural due process

C) an approach to interpreting the Constitution that uses historical analysis to assess what the authors of the Constitution meant or intended by a particular term or provision, including the term liberty within the Due Process Clause

50)

51) original understanding

D) a legal standard used by the Court to assess Fourth Amendment rights against unreasonable searches and seizures

51)

52) reasonable expectation of privacy

E) a provision found in the Fifth Amendment that states that government cannot take private property for public use without just compensation

52)

53) takings clause

F) the requirement that government treat persons fairly while it attempts to interfere with their liberty interests and concerned with how the government processes and safeguards individuals and their claims

53)

54) substantive due process

G) a liberty interest under the Fourteenth Amendment Due Process Clause as determined by the U.S. Supreme Court during the latter part of the nineteenth century and early part of the twentieth century

54)

55) original intent

H) concerns the type or substance of behavior 55) that is included as a “liberty” under the due

117

process clause

Match the term listed in Column 1 to its description in Column 2.

56) contract clause

A) a constitutional right of the highest order and one to which utmost constitutional protection is applied, including strict scrutiny protection

56)

57) fundamental right

B) constitutional balancing test that requires the government to show that its infringement upon a fundamental right is necessary (or narrowly tailored) to serve a compelling governmental interest

57)

58) strict constructionist

C) a phrase frequently offered by the Court as the standard for assessing whether a particular human activity will be included as a “liberty interest” under the Due Process Clause

58)

59) implicit in the concept of ordered liberty 59

D) an approach to interpreting the Constitution that strictly construes the explicit words of the Constitution to determine whether a particular right is protected

59)

60) living will

E) a legal document in which a person provides instructions for medical treatment (or the lack thereof) in cases where the person becomes incapacitated

60)

61) undue burden

F) a legal standard used to review restrictions on abortion for their constitutionality

61)

62) strict scrutiny test

G) a provision in Article I, Section 10, of the Constitution that provides that states cannot impair the obligations of contracts

62)

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

63) What is the difference between the constitutional rights to substantive due process and procedural due process?

64) What are the different approaches the Supreme Court has used to determine whether a particular activity constitutes a liberty interest protected by the Due Process Clause?

65) What is the constitutional basis for recognizing and protecting a right of privacy?

66) What did the U.S. Supreme Court decide in Gonzales v. Carhart (2007)?

67) What was the basis for the U.S. Supreme Court decision in Obergefell v. Hodges?

68) What did the U.S. Supreme Court decide in Lawrence v. Texas?

69) What is the liberty of contract?

70) What is your reaction to the Obergefell v. Hodges decision? Explain your position.

71) Discuss whether the holding in Lawrence v. Texas should be extended to recognizing liberty interests for prostitution involving consenting adults under the Due Process Clause. Explain your position.

1) B 2) D 3) B 4) C 5) D 6) D 7) D 8) A 9) C 10) D 11) A 12) B 13) D 14) A 15) D 16) A 17) B 18) D 19) C 20) D 21) A 22) TRUE 23) TRUE 24) TRUE 25) FALSE 26) TRUE 27) FALSE 28) TRUE

119

29) FALSE 30) TRUE 31) TRUE 32) FALSE 33) TRUE 34) FALSE 35) TRUE 36) FALSE 37) interests 38) Fourteenth 39) liberty 40) constructionist 41) intent 42) understanding 43) Ninth 44) burden 45) Fourteenth 46) sodomy 47) Fifth 48) C 49) A 50) B 51) A 52) C 53) D 54) E 55) B 56) G 57) A 58) D 59) C 60) E 61) F 62) B

63) Procedural due process is the requirement that government treat persons fairly while it attempts to interfere with their liberty interests. In other words, it concerns how the government processes and safeguards individuals and their claims. Substantive due process concerns the type or substance of behavior that is included as a “liberty” under the due process clause. The primary question under this dimension of the due process clause is what activities does “liberty” include?

64) Different justices use different methods to determine what activities are protected under the “liberty” provision of the due process clause. Some have found liberties implicit in the Bill of Rights. Other justices have used a strict constructionist approach that construes the explicit words of the Constitution to determine whether a particular liberty is protected. Others apply original intent (assess what the authors of the due process clause meant or intended by the term “liberty”) or original understanding (assess what governments understood “liberty” to mean when the due process clause was ratified).

65) Some justices find the right to privacy to be implicit in the shadows (penumbras) of the First, Third, Fourth, Fifth, and Ninth Amendments. Others find that it is simply another right protected as a part of the liberty interest under the Due Process Clause.

66) In Gonzales v. Carhart (2007), the U.S. Supreme Court examined the federal Partial-Birth Abortion Ban Act of 2003. Under this Act, Congress outlawed the so-called partial-birth abortions (properly known as intact dilation and evacuation procedures), but did not provide for an exception in cases where the health of the pregnant woman is in jeopardy. In a 5-4 ruling, the Court concluded the law’s failure to include a health exception did not impose, at least based on the facial language of the statute, an undue burden on a woman’s right to an abortion. The Court, however, noted that, if a case were presented where the medical science clearly demonstrated that the banned procedure was necessary to preserve a woman’s health, the law’s applied prohibition would be unconstitutional. But in Carhart, the Court found that such health risks were not clearly demonstrated.

67) In Obergefell v. Hodges (2015), a 5-4 majority of the Court ruled that state bans on same-sex marriage were unconstitutional because they violated liberty interests under the Fourteenth Amendment Due Process Clause. Justice Anthony Kennedy, writing for the majority, identified both fundamental liberty interests to marriage under the Due Process Clause and general principles of equality under the Equal Protection Clause as reasons for striking down state laws prohibiting samesex unions.

68) In Lawrence v. Texas, the U.S. Supreme Court struck down a state law banning same-sex sodomy.

The Court indicated that decisions regarding private, adult sexual activity should generally be left up to the consenting adults.

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69) The “liberty of contract” is a doctrine adopted by the Court during the latter part of the nineteenth and early part of the twentieth century that maintain that, under the Due Process Clause, the term “liberty” included the right of individuals to negotiate and maintain contractual agreements without governmental interference. In 1937, the Court began to move away from this doctrine and generally gives substantial discretion to governmental regulations of economic affairs.

70) Answers will vary.

71) Answers will vary.

Chapter 12 Equal Protection MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Is the federal government obligated to avoid denying persons the equal protection of the law? Why or why not?

1)

A) No, because the federal government does not have a history of discrimination B) Yes, because the Fifth Amendment Due Process Clause contains this obligation C) Yes, because it’s the right thing to do D) No, because the equal protection clause only applies to the states 2) Prior to 1954, if a state wanted to enact a program that separated individuals based on their race, but still provide both sets of persons equal services, what would the government have to demonstrate for this program to be deemed constitutional?

2)

A) It was necessary to promote a compelling governmental interest.

B) It was substantially related to an important governmental interest.

C) There was only minimal state action involved.

D) It was rationally related to a legitimate governmental interest.

3) Why did the Supreme Court reject Dred Scott’s petition for freedom?

3)

I. The filed his petition in the wrong federal court.

II. res judicata III. He was not a person under the law.

IV. The Missouri Compromise was unconstitutional.

A) I and II B) III and IV C) I, II, III D) I and III 4) Which justice wrote the dissenting opinion in both the Civil Rights Cases (1883) and Plessy v. Ferguson?

4)

A) John Harlan B) Roger Taney C) William Rehnquist D) John Marshall 5) What standard of constitutional review is applied to sex-based discrimination?

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5)

A) Strict Scrutiny B) Intermediate Scrutiny C) Rational Basis D) Discriminatory Impact 6) What standard of constitutional review is applied to race-based discrimination?

6)

A) Strict Scrutiny B) Intermediate Scrutiny C) Rational Basis D) Discriminatory Impact 7) What standard of constitutional review is applied to income-based discrimination?

7)

A) Strict Scrutiny B) Intermediate Scrutiny C) Rational Basis D) Discriminatory Impact 8) In which case can the following quotation be found?

8)

“[T]he legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument . . .”

A) Plessy v. Ferguson B) Dred Scott v. Sandford C) Brown v. Board of Education of Topeka (I) D) Civil Rights Cases of 1883 9) In which case can the following quotation be found? “[T]he cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.”

A) Brown v. Board of Education of Topeka (II) B) Brown v. Board of Education of Topeka (I) C) Swann v. Charlotte-Mecklenberg Bd. of Education D) Milliken v. Bradley

9)

10) In United States v. Virginia, who wrote the majority opinion to describe the type of interest the State would have to demonstrate in order to uphold its form of discrimination?

10)

A) O’Connor B) Thomas C) Breyer D) Ginsburg 11) Which of the following was NOT used to discuss the evolution of constitutional standards for reviewing sex-based discrimination?

11)

A) Reed v. Reed B) Bowers v. Hardwick C) Muller v. Oregon D) Bradwell v. Illinois 12) What constitutional standard of review currently applies to race-based affirmative action policies sponsored by the federal government and which case is responsible for this standard?

12)

A) rational basis/Grutter v. Bollinger B) strict scrutiny/Fullilove v. Klutznick C) strict scrutiny/Adarand Constructors, Inc. v. Pena D) intermediate scrutiny/Metro Broadcasting v. F.C.C. 13) What constitutional level of scrutiny is applied to government classifications based on so-called “illegitimacy”?

13)

A) intermediate scrutiny B) rational basis C) strict scrutiny D) non-suspect classification 14) On what basis did the Supreme Court strike down the Texas sodomy statute in Lawrence v. Texas?

A) full faith and credit B) substantive due process C) first amendment D) equal protection

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14)

15) Which of the following is NOT considered a fundamental right under the Constitution?

15)

A) travel B) privacy C) marriage D) education 16) Based on the readings, in which classification has the Court placed sexualorientation?

16)

A) intermediate-suspect B) suspect C) non-suspect D) semi-suspect 17) What is the process of drawing or redrawing legislative districts based on a particular motive called?

17)

A) legislative favoritism B) gerrymandering C) district drafting D) boundary drawing 18) What standard is used to determine whether government can use a person’s alienage for purposes of discrimination in government employment?

18)

A) important governmental functions test B) employee privacy test C) necessary and compelling test D) government classification test 19) Each of the following cases involve age discrimination EXCEPT: A) Vance v. Bradley.

B) Massachusetts Board of Retirement v. Murgia.

C) Kimel v. Florida Board of Regents.

D) Zablocki v. Redhail.

19)

20) What is the term that describes the process of drawing or redrawing geographic boundaries for electoral districts based on a particular motive, such as reelecting the incumbent, including or excluding minority voters, or increasing political party control?

20)

A) anti-segregation B) gerrymandering C) affirmative action D) segregation TRUE/FALSE.Write ‘T’ if the statement is true and ‘F’ if the statement is false.

21) The Nineteenth Amendment guarantees the right to vote regardless of a person’s sex.

21)

22) The Fourteenth Amendment provides an enforcement clause in Section 5 that allows Congress to pass legislation to enforce the Equal Protection Clause.

22)

23) The Fourteenth Amendment was ratified before the Civil War.

23)

24) The state action requirement in the Fourteenth Amendment for equal protection cases applies only to state governments and does not apply to conduct of local governments.

24)

25) Court have upheld the Civil Rights Act of 1964 based on authority granted to Congress in Article I of the Constitution involving interstate commerce.

25)

26) Even if a discrimination case is not governed under the Equal Protection Clause, the provisions of federal, state, or local civil rights legislation may apply to preclude the identified form of discrimination.

26)

27) The rational basis test is used for fundamental rights such as the right to vote.

27)

28) The intermediate scrutiny test is a constitutional standard used in cases involving a semi-suspect form of discrimination that requires the government to show that its semi-suspect form of discrimination is substantially related to an important governmental interest.

28)

29) Suspect classification is a type of distinction or discrimination that is highly questionable and deserves the highest form of judicial scrutiny.

29)

30) remains the law today under the Equal Protection Clause.

30)

31) Desegregation is the process by which the policies and effects of exclusion and separation are reversed and corrected.

31)

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32) In United States v. Virginia (1996), the U.S. Supreme Court upheld the Virginia Military Institute (VMI)’s long-standing male-only admission policy.

32)

33) The rational basis test is used for cases involving classifications based on income.

33)

34) The intermediate scrutiny test is used for cases involving classifications based on the marital status of a person at the time of birth.

34)

35) In Alabama Legislative Black Caucus v. Alabama (2015), the U.S. Supreme Court rejected a lower court’s conclusion that Alabama’s racebased redistricting plan satisfied strict scrutiny.

35)

SHORT ANSWER.Write the word or phrase that best completes each statement or answers the question.

36) The Privileges or Immunities Clause prohibits states from denying persons the privileges or immunities of American .

36)

37) The Fifteenth Amendment provides that government cannot deny persons the right to based on race, color, or previous servitude.

37)

38) The constitutional guarantee that “No state shall … deny any person within its jurisdiction the equal protection of the laws” is found in the Amendment.

38)

39) The state requirement is an essential element to any due process or equal protection claim that requires sufficient government involvement.

39)

40) In Heart of Atlanta Motel, Inc. v. United States (1964), the U.S. Supreme Court upheld civil right legislation barring discrimination in employment and places of public accommodation that affect inter-state because Congress has the power to regulate under Article I of the Constitution.

40)

41) Congress passed the Civil Rights Act of 1964 that banned discrimination in places of public accommodation and prohibited employment discrimination based on race, sex, religion, color, or national origin.

41)

42) Government discrimination on the basis of race is subject to the scrutiny test under the Equal Protection Clause.

42)

43) The separate but doctrine in Plessy v. Ferguson (1896) was rejected by the U.S. Supreme Court in Brown v. Board of Education (1954).

43)

44) Government discrimination on the basis of wealth is subject to the

44)

basis test under the Equal Protection Clause.

45) The Twenty-Fourth Amendment prohibits poll which had been employed in some jurisdictions as a means of preventing blacks from voting.

45)

MATCHING.Choose the item in column 2 that best matches each item in column 1.

Match the form of discrimination applied listed in Column 1 to the standard used in Column 2.

46) income/wealth

A) strict scrutiny

46)

47) sexual orientation

B) intermediate scrutiny

47)

48) right to vote

C) rational basis test

48)

49) right to marry

D) A law that is enacted by Congress supposedly under one of its enumerated powers, when the law’s true purpose is to regulate a subject belonging to the states, is invalid.

49)

50) right to travel

E) The detailed revision of a bill by a legislative committee.

50)

51) marital status of a person’s parents at the time of birth (illegitimacy)

F) A proposed law, presented to the legislature for enactment. committed

51)

52) race

G) The clause in Article I, Section 8, of the Constitution that gives Congress the power to regulate commerce between the states and between the United States and foreign countries.

52)

53) age

H) A law enacted by a legislature; an act.

53)

54) sex

I)

54)

The published statutes of a jurisdiction, arranged in a systematic form.

Match the federal civil rights legislation or constitutional provision listed in Column 1 to its description in Column 2.

55) Title II of Civil Rights Act of 1964 A) prohibits racial discrimination in elections

A) prohibits racial discrimination in elections

55)

56) Voting Rights Act of 1965

B) provides that no person shall, on the

56)

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B) provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance

basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance

57) Age Discrimination in Employment Act (1967)

C) prohibits employers with fifteen or more employees from discriminating based on race, color, religion, sex, and national origin

57)

58) Americans with Disabilities Act (1990)

D) provides that all persons are entitled to the full and equal protection of the “goods, services, facilities, privilege, advantages and accommodations of any place of public accommodation . . . without discrimination or segregation on the ground of race, color, religion, or national origin.”

58)

59) Title VII of Civil Rights Act of 1964

E) protects individuals who are 4 years of age or older from employment discrimination based on age

59)

60) Title IX of Civil Rights Act of 1964

F) bars discriminations against anyone who has a mental or physical disability in the area of employment, public services, transportation, public accommodations, and telecommunications

60)

61) Fourteenth Amendment

G) requires that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws”

61)

ESSAY.Write your answer in the space provided or on a separate sheet of paper.

62) What is the source found in the U.S. Constitution for equal protection as applied to both the federal and state governments?

63) Why is “state action” required for cases under the Equal Protection Clause?

64) What was the basis for the Civil Rights Act of 1964 to prohibit racial discrimination in places of public accommodation?

65) Explain the difference between the strict scrutiny test, intermediate scrutiny test, and the rational basis test.

66) What did the U.S. Supreme Court decide in Brown v. Board of Education (1955) also known as Brown II? 67) What did the U.S. Supreme Court decide in United States v. Virginia (1996), also known as the VMI case?

68) What are the three exceptions to the strict scrutiny standard in alienage cases?

69) What is the impact of the Voting Rights Act of 1965?

70) Discuss whether you think sexual orientation should be entitled to the scrutiny standard. Explain your position.

71) In Citizens United v. Federal Election Commission (2010), the U.S. Supreme Court held that political spending is protected under the First Amendment, meaning corporations and unions could spend unlimited amounts of money on political activities, as long as it was done independently of a party or candidate. How does the Citizens United case affect the right to vote?

1) B 2) D 3) B 4) A 5) B 6) A 7) C 8) B 9) A 10) D 11) B 12) C 13) A 14) B 15) D 16) C 17) B 18) A 19) D 20) B 21) TRUE 22) TRUE 23) FALSE

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24) FALSE 25) TRUE 26) TRUE 27) FALSE 28) TRUE 29) TRUE 30) FALSE 31) TRUE 32) FALSE 33) TRUE 34) TRUE 35) TRUE 36) citizenship 37) vote 38) Fourteenth 39) action 40) commerce 41) racial 42) strict 43) equal 44) rational 45) taxes 46) B 47) B 48) A 49) A 50) A 51) A 52) B 53) C 54) A 55) D 56) A 57) E 58) F

59) C 60) B 61) G 62) The source for equal protection at the state level is the Equal Protection Clause in the Fourteenth Amendment. The Supreme Court has ruled that, while the Fourteenth Amendment Equal Protection Clause is limited to state governmental action, the Fifth Amendment’s Due Process Clause should be interpreted as including an implicit protection of equal protection as applied to the federal government.

63) “State action” is a necessary condition for a case of equal protection under either the Fifth or Fourteenth Amendment. Essentially, this requirement maintains that there must be sufficient governmental involvement in the deprivation of equality for there to be a constitutional violation. If equality is being denied by someone unrelated to government, then there is not likely a constitutional violation, although there may be some statutory violations.

64) Congress found success in passing the Civil Rights Act of 1964, legislation that banned racial discrimination in places of public accommodation and prohibited employment discrimination based on race, sex, religion, color, or national origin. Congress based this legislation, in part, on the interstate Commerce Clause of Article I, Section 8. In Heart of Atlanta Motel, Inc. v. United States (1964) and Katzenbach v. McClung (1964), the Supreme Court upheld this law, finding that, because discrimination in employment and places of public accommodation affects inter-state commerce, Congress has the power to regulate it under Article I of the Constitution.

65) In cases where a suspect classification is involved, the government must meet the strict scrutiny test—it must show that its suspect form of discrimination is necessary (narrowly tailored) to meet a compelling governmental interest. In cases involving a semi-suspect form of discrimination, the government must satisfy the intermediate scrutiny test—it must show that its semi-suspect form of discrimination is substantially related to an important governmental interest. And in cases where the discrimination is non-suspect, the government must satisfy the rational basis test—it must show that its non-suspect distinction is rationally related to a legitimate governmental interest.

66) In Brown I, the Court did not issue an order to enforce its ruling. Instead, the Court, concerned about how schools and states might react to the ruling, scheduled a separate hearing to determine an appropriate remedy. In 1955, following this additional round of oral arguments, the Court announced its second decision in Brown (often referred to as “Brown II”), wherein it instructed lower courts to issue orders that were “necessary and proper” to integrate black students into public school “on a racially nondiscriminatory basis with all deliberate speed.” This process is known as desegregation.

67) In United States v. Virginia (1996), Justice Ruth Bader Ginsburg, who as a lawyer argued a number of sex discrimination cases before the Court, held that governments must offer an “exceedingly persuasive” justification before they will be allowed to make sex-based distinctions in public policy.

Courts generally apply the intermediate scrutiny standard to sex-based discrimination under the Equal Protection Clause.

68) The first exception involves non-U.S. citizens who are in the United States illegally. The Court has stated that these individuals “cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy.” The second exception involves congressional legislation affecting aliens. Because Article I of the Constitution gives Congress specific authority to regulate immigration and naturalization, the Court generally has not held alienage-based distinctions made by Congress to be suspect. The last exception applies to governmental employment (at all levels). The Court has ruled that where public positions involve “important governmental functions,” the government may deny such jobs to non-U.S. citizens. Under the

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important governmental functions test, noncitizens have been denied jobs as police officers, public school teachers, and probation officers.

69) Congress passed the Voting Rights Act of 1965 which established a number of prohibitions and procedures designed to end racial discrimination in voting. This law was designed to supplement the Fifteenth Amendment through a number of provisions, including several which focus on preserving the equal representation of voters in different legislative voting districts. In Alabama Legislative Black Caucus v. Alabama (2015), a 5-4 Court rejected a lower court’s conclusion that Alabama’s race-based redistricting plan satisfied strict scrutiny. As a result, the Court found that Alabama’s use of race to draw their districts fell short of the aims of the Equal Protection Clause and the Voting Rights Act of 1965.

70) Answers will vary.

71) Answers will vary.

Chapter 13 Civil Liberties in the Criminal Justice System MULTIPLE CHOICE. Choose the one alternative that best completes the statement or answers the question.

1) Which of the following rights within the Bill of Rights officially has not been incorporated and applied to the states through the Fourteenth Amendment?

1)

A) The right to counsel B) The right to a trial by jury in felony cases C) The right against double jeopardy D) The right to a grand jury indictment 2) The right to a fair trial in federal cases stems from what constitutional source?

2)

A) The Fifth Amendment Just Hearing Clause B) The Fifth Amendment Due Process Clause C) The Sixth Amendment Fair Trial Clause D) The Fourth Amendment Speedy Trial Clause 3)

Under most domestic search warrants what legal standard must be established before a warrant will be issued?

3)

A) Reasonable suspicion B) Probable cause C) Certiorari D) Reasonable cause 4)

The United States Supreme Court decision that requires prosecutors to turn over any evidence that tends to show the innocence of the defendant is:

4)

A) Gideon v. Wainwright.

B) Brady v. Maryland.

C) Santobello v. New York.

D) Batson v. Kentucky.

5) Which of the following is NOT an exception to the exclusionary rule?

A) greater good exception B) inevitable discovery C) intervening circumstances rule D) independent source

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5)

6) An arrest must be based on evidence that would constitute:

6)

A) probable cause.

B) proof beyond a reasonable doubt.

C) clear and convincing evidence.

D) suspicion.

7)

A “Terry search” is another name for a(n) officer must have .

, for which the police

7)

A) stop and frisk search/reasonable suspicion B) sneak and peek search/reasonable suspicion C) stop and frisk search/probable cause D) sneak and peek search/probable cause 8)

Determining whether an officer has probable cause to effectuate an arrest is based on:

8)

A) the “reasonable officer” standard.

B) the Terry rule.

C) the “reasonable suspect” standard.

D) the totality of the circumstances.

9)

Before the Fourth Amendment can be applied to assess the legality of a search and seizure, the person asserting the invalidity of the search must:

9)

A) be a legal U.S. citizen.

B) have a reasonable expectation of privacy.

C) not be guilty of a crime.

D) be a legal U.S. resident.

10) In order for a warrantless consent search to be valid, the consent must be

given: A) verbally or in writing.

B) knowingly, rationally, and peacefully.

C) in writing.

D) knowingly, intelligently, and voluntarily.

10)

11) Assume that police enter a residence to arrest Suzie pursuant to a valid

11)

arrest warrant and that Suzie is sitting on the couch in the living room eating popcorn. Incident to a lawful arrest, police may search all of the following EXCEPT: A) the coat closet in the adjacent hallway.

B) in the couch under the cushions.

C) Suzie’s pant pockets.

D) under the couch.

12) Police obtain a search warrant for Mary’s house to search for cocaine.

12)

While executing the search warrant, the police look in a closet and find a sawed-off shotgun. The gun will be: A) admissible if it was immediately apparent as contraband.

B) inadmissible, as the gun was not listed on the search warrant.

C) admissible only if the police found cocaine too.

D) admissible, but only if Mary gave consent to the search of the closet.

13) What kind of test is used to determine if a person is in custody?

13)

A) If the detention is more than just a brief questioning B) If the officer intends to arrest the suspect C) If the suspect does not feel free to leave D) If a reasonable person would not feel free to leave 14) Miranda requirements apply during:

14)

A) investigatory stops.

B) custodial interrogations.

C) stop and frisks.

D) automobile searches.

15) Under the Fifth and/or Sixth Amendment, a person has the right to counsel

during each of the following stages EXCEPT: A) misdemeanor trials when imprisonment is actually imposed.

B) appeals as a matter of right.

C) guilty pleas and sentencing.

D) appeals to the Supreme Court.

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15)

16) In

, the Supreme Court ruled that a prosecutor could not use race as a basis for excluding jurors during voir dire.

16)

A) Furman v. Georgia B) Booth v. Maryland C) Batson v. Kentucky D) Gregg v. Georgia 17) Under the Fourth Amendment, which of the following is NOT an exception

17)

to the warrant requirement for searches and seizures?

A) Plain feel B) Plain view C) Serious offense D) Exigent circumstances 18) If a criminal defendant goes to trial but the case ends with a hung jury, can

18)

the government retry the defendant on the same charges? Why or why not?

A) No. The double jeopardy clause prohibits it.

B) It depends on whether the alleged crime is a felony or a misdemeanor.

C) Yes, because the jury did not make a finding of fact on the charges.

D) No. The double jeopardy and due process clauses prohibit it.

19) When does jeopardy attach during a jury trial?

19)

A) When the jury begins its deliberations B) When the jury is sworn in C) When the first witness is sworn in D) When the jury reaches its verdict 20) The constitutional provision against cruel and unusual punishment is found

in the A) First B) Fifth C) Fourth D) Eighth

amendment.

20)

21) Each of the following is prohibited as cruel and unusual punishment

21)

EXCEPT A) disproportionate sentences.

B) unreasonable prison and other confinement conditions.

C) status crimes.

D) capital punishment.

TRUE/FALSE. Write ‘T’ if the statement is true and ‘F’ if the statement is false.

22) The exclusionary rule is a judicially created remedy for violations of the

22)

Fourth, Fifth, or Sixth Amendment, which is used to exclude unconstitutionally obtained evidence from a criminal trial.

23) No exceptions to the exclusionary rule exist.

23)

24) Reasonable suspicion is a less rigorous legal standard than probable cause,

24)

which generally requires an officer to have articulable facts that would lead a reasonable person to suspect that criminal activity is afoot.

25) Seizure of a person occurs when law enforcement officer uses force or the

25)

threat of force to detain a person, thereby causing the person to reasonably believe that he or she cannot freely leave the presence of the official.

26) Totality of the circumstances is a legal standard used to review arrests and

26)

seizures of persons and property to determine whether probable cause or reasonable suspicion exists.

27) Probable cause is a legal standard requiring the officer to have sufficient

27)

and trustworthy information to reasonably believe that a person has committed a crime.

28) A search warrant is required for all searches inside a person’s home.

28)

29) In Riley v. California (2014), a unanimous U.S. Supreme Court held that

29)

the incident-to-a-lawful-arrest exception to the warrant requirement does not extend to searching a suspect’s cell phone after the suspect is arrested.

30) Miranda warnings are required once it is determined that police are

30)

engaging in a custodial interrogation.

31) Miranda warnings are designed to ensure that prior to police questioning,

31)

individuals are informed of two basic rights under the Constitution—the right to be silent and the right to an attorney.

32) The Sixth Amendment right to counsel applies to both criminal cases and

civil cases.

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32)

33) The Sixth Amendment right to counsel, like other constitutional rights, can

33)

be waived.

34) In Gideon v. Wainwright (1963), the U.S. Supreme Court ruled that a

34)

defendant had a constitutional right to an attorney during state criminal proceedings and that if he could not afford an attorney, the state was required to appoint one.

35) A person may be tried multiple times if the prior trial ended in a mistrial

35)

where the prosecution did not intentionally seek to cause the mistrial.

36) The proportionality doctrine is a legal doctrine under the Cruel and

36)

Unusual Punishment Clause that requires criminal punishment to be proportional to the crime committed.

SHORT ANSWER. Write the word or phrase that best completes each statement or answers the question.

37) The

rule became applicable to state agents based on the U.S. Supreme Court case Mapp v. Ohio (1962).

37)

38) A Terry Stop is also known as a stop and

38)

where a policy officer can conduct an investigatory stop where the officer has reasonable suspicion that the person is armed.

39) A written statement made under oath, typically completed by a police

officer when seeking a search warrant, is known as a(n)

39)

.

40) The plain

doctrine is an exception to the Fourth Amendment warrant requirement that allows police to search and seize items if they are lawfully in a location where they plainly see evidence of criminal activity.

40)

41) The Fifth Amendment right against self-incrimination applies to testimony

41)

or statements, not to

evidence.

42) The right against self-incrimination under the

Amendment is bolstered by additional protections under the Due Process Clauses of the Fifth and Fourteenth Amendments, as well as the Sixth Amendment right to counsel.

43) The Sixth Amendment right to counsel applies only to

42)

stages of

43)

44) The U.S. Supreme Court has ruled that the Sixth Amendment requires that

44)

the prosecution there must be at least

jurors to decide a case.

45) The dual

doctrine is a legal theory associated with the Double Jeopardy Clause that provides that federal and state governments may try a person for the same act.

45)

46) Since Gregg v. Georgia (1976), the U.S. Supreme Court has ruled that the

46)

death penalty does not inherently violate the prohibition against cruel and unusual punishment .

Amendment

MATCHING. Choose the item in column 2 that best matches each item in column 1.

Match the exception to the Fourth Amendment warrant requirement listed in Column 1 to its description in Column 2.

47) automobile exception

A) an exception to the Miranda requirement that has allowed police, in at least one instance, to question a suspect in custody without supplying the requisite warnings when the questions were designed to address an imminent matter of public safety

47)

48) evanescent evidence

B) during warrantless searches conducted pursuant to a lawful arrest, police are permitted to search the surrounding premises if authorities reasonably believe that accomplices may be present in the area and threaten the safety of the officers

48)

49) public safety exception

C) a type of exigent circumstances situation that allows police to perform warrantless seizures of evidence that may be destroyed or evaporated

49)

50) plain-feel exception

D) exception to the warrant requirement that allows police to search a vehicle without a warrant if they have probable cause to believe that the vehicle or part thereof contains evidence of criminality

50)

51) open fields doctrine

E) an exception to the warrant requirement for searches and seizures that allows law enforcement officers to search and seize areas or items located in open and public view

51)

exception

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52) protective sweep

F) allows officers performing stop and frisks to seize non-weapon forms of contraband (drugs, drug paraphernalia, etc.) that the officer reasonably detects as a part of a properly executed patdown

52)

53) consent searches

G) an exception to the Fourth Amendment warrant requirement that allows police to perform searches with the permission or consent of a person who has actual or apparent authority over the property being searched

53)

54) exigent circumstances

H) an exception to the Fourth Amendment warrant requirement that allows officers to conduct warrantless searches where there is a need to apprehend a dangerous person or prevent an imminent and serious threat to the police or public

54)

55) hot-pursuit rule

I)

an exception to the Fourth Amendment warrant requirement that allows police to search and seize items if they are lawfully in a location where they plainly see evidence of criminal activity.

55)

56) plain view doctrine

J) a form of the exigent circumstances exception to the warrant requirement that allows police to enter places without a warrant where they are pursuing a fleeing felon, where evidence may be destroyed or evaporated, where contaminated food or narcotics present immediate danger, and where an ongoing crisis poses a threat to public safety

56)

exception

ESSAY. Write your answer in the space provided or on a separate sheet of paper.

57) What is the exclusionary rule?

58) What is a Terry stop?

59) What is the definition of probable cause?

60) What is the automobile exception to the warrant requirement under the Fourth Amendment?

61) What is the purpose of the Miranda warnings?

62) What are the “critical stages” of criminal procedure where the right to counsel exists?

63) Discuss whether the warrantless tracking of an individual through the use of real-time cell phone site

location information is a violation of the individual’s rights under the Fourth Amendment.

64) Which constitutional right afforded to criminal suspects under the Fifth or Sixth Amendment is the

most important to you personally? Explain your position.

1) D 2) B 3) B 4) B 5) A 6) A 7) A 8) D 9) B 10) D 11) C 12) A 13) D 14) B 15) D 16) C 17) C 18) C 19) B 20) D 21) D 22) TRUE 23) FALSE 24) TRUE 25) TRUE 26) TRUE 27) TRUE 28) FALSE 29) TRUE

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30) TRUE 31) TRUE 32) FALSE 33) TRUE 34) TRUE 35) TRUE 36) TRUE 37) exclusionary 38) frisk 39) affidavit 40) view 41) physical 42) Fifth 43) critical 44) six 45) sovereignty 46) Eighth 47) C 48) B 49) A 50) D 51) D 52) B 53) F 54) A 55) E 56) C 57) The exclusionary rule is a court-created rule that excludes items from evidence that have been unconstitutionally obtained by the government. If imposed, the rule bars unconstitutionally or illegally obtained evidence from being used by the government against the accused. The exclusionary rule applies to more than just the initial item of evidence obtained by police in violation of the Constitution, but can also exclude any other evidence derived from the initial piece of evidence. This is known as the “fruit of the poisonous tree doctrine.”

58) A stop and frisk, or Terry, search is a “pat-down” search conducted during an officer’s investigatory detention of an individual. The primary purpose of this search is to ensure the officer’s safety allowing the officer to search a person’s outer clothing for weapons.

59) Probable cause is the legal standard requiring the officer to have sufficient and trustworthy information to reasonably believe that a person has committed a crime. Like many other constitutional concepts in criminal cases, determining whether an officer had probable cause to arrest is based on the totality of the circumstances and a reflection on what is reasonable under those circumstances.

60) The automobile exception is an exception to the warrant requirement that allows police to search a vehicle without a warrant if they have probable cause to believe that the vehicle or part thereof contains evidence of criminality. The U.S. Supreme Court has theorized that this exception is appropriate because vehicles can be readily moved, thereby making the acquisition of a warrant impractical. The Court also has suggested that people have a lesser expectation of privacy in their automobiles because they are used among the public and on public roads.

61) Police are required to provide suspects with Miranda warnings when they are conducting a custodial interrogation of a suspect. The Miranda warnings are designed to ensure that prior to police questioning, individuals are informed of two basic rights under the Constitution—the right to be silent and the right to an attorney.

62) The right to counsel exists during all “critical stages” of criminal procedure. These stages include all felony trials, misdemeanor cases where imprisonment is actually imposed (as opposed to cases where jail time is a possibility), arraignments, post-charge lineups, post-charge interrogations (regardless of whether they are custodial), and appeals as a matter of right.

63) Answers will vary.

64) Answers will vary.

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