EXAM I
AMERICAN CONSTITUTIONAL LAW
FALL 2022
NAME: Lisandra Audett
DATE: October 20, 2022
MULTIPLE CHOICE
1. In the debate over ratification of the U.S. Constitution, the Federalists and Anti-Federalists disagreed on:
I. The strength of the federal government relative to the states.
II. Inclusion of a bill of rights.
III. The need to declare independence from Britain.
A. I.
B. II.
C. I and II.
D. I, II, and III.
2. In Article III it is stated that:
I. The judicial power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish.
II. The supreme court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make.
III. The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to Controversies to which the United States shall be a Party; to Controversies between two or more States, between Citizens of different States.
A. I.
B. I and II.
C. II and III
D. I, II, and III.
3. In the landmark case of Marbury v. Madison (1803), the court, per Chief Justice John Marshall, wrote: “It is emphatically the province of the judicial department to say what the law is … [A] law repugnant to the constitution is void …” It thus established which of the following?
I. Judicial review.
II. Jurisdiction.
III. Justiciability.
A. I
B. I and II.
C. II and III
D. I, II, and III.
4. A statute provides a habeas corpus procedure for those persons alleging violation of a particular constitutional right. Pursuant to the statute, a person petitions a federal district court for habeas corpus relief. The court denies relief. Later, the petitioner files an appeal in the U.S. Supreme Court, which grants certiorari and schedules the case for argument. In the meantime, Congress repeals the statute providing the habeas corpus procedure. Under Ex parte McCardle (1869), the court must:
A. Dismiss the case as the court lacks appellate jurisdiction.
B. Hear the case as the court has appellate jurisdiction.
C. Dismiss the case as the court has appellate jurisdiction.
D. Hear the case as the court does not have appellate jurisdiction.
5. The Secretary of State sent a letter to the U.S. Supreme Court inquiring of rights and duties of the United States under a treaty with France. In response, the court sent a letter to the Secretary of State answering all of his questions. Under Letter from the Justices to President Washington, August 8, 1793, the court’s letter is:
A. Constitutional, because it does not constitute an advisory opinion.
B. Unconstitutional, because it does constitute an advisory opinion.
C. Constitutional, because it does constitute an advisory opinion.
D. Unconstitutional, because it does not constitute an advisory opinion.
6. In accord with the Supreme Court’s decisions, including its opinion in Lujan v. Defenders of Wildlife (1992), standing requires:
I. The plaintiff must have suffered a concrete injury or be in imminent danger of suffering such a loss.
II. The injury must be “fairly traceable” to the challenged action of the defendant.
III. The plaintiff must show that a favorable court decision is likely to provide redress.
A. I.
B. I and II.
C. II and III.
D. I, II, and III.
7. A group of activists organize and file a lawsuit in federal court claiming a violation of the constitution because several members of Congress are also members of the armed forces reserve. The plaintiffs assert citizenship standing. Under Schlesinger v. Reservists Committee to Stop the War (1974), the court must:
A. Dismiss the case, as the plaintiffs lack standing.
B. Hear the case, as the plaintiffs have standing.
C. Dismiss the case, as the plaintiffs have standing.
D. Hear the case, as the plaintiffs lack standing.
8. Congress enacts a statute prohibiting all federal civil servants from running for public office. A group of civil servants, who have not run for public office but are contemplating doing so at some time in the future, sue to challenge the statute. Under United Public Workers v. Mitchell (1947), the court must:
A. Hear the case, because it is ripe.
B. Not hear the case, because it is not ripe.
C. Hear the case, because it is not ripe.
D. Not hear the case, because it is ripe.
9. An applicant to a university is denied admission. He sues alleging racial discrimination. The court orders him admitted. The university appeals. He matriculates. He meets graduation requirements. The state supreme court reverses. He appeals to the U.S. Supreme Court. Under Defunis v. Odegaard (1974), the court must:
A. Hear the case, because it is moot.
B. Not hear the case, because it is moot.
C. Hear the case, because it is not moot.
D. Not hear the case, because it is not moot.
10. The President terminates a treaty with another nation. A Senator sues, alleging that the termination of a treaty requires Senate consent, which the President did not obtain. Under Goldwater v. Carter (1979), the court must:
A. Hear the case, because it is not a political question.
B. Not hear the case, because it is a political question.
C. Hear the case, because it is a political question.
D. Not hear the case, because it is not a political question.
11. In 1791, the Bill of Rights was applicable to:
A. Only the federal government.
B. Only the states.
C. Both the federal government and the states.
D. None of the above.
12. In the landmark case Palko v. Connecticut (1937), the court adopted:
I. The view that the fourteenth amendment does not incorporate, or make applicable to the states, any of the rights specified in the Bill of Rights.
II. Selective incorporation, sometimes called “ordered liberty-fundamental fairness” theory, under which the fourteenth amendment is construed as incorporating, or making applicable to the states, only those rights in the Bill of Rights without which there would be no “ordered liberty or fundamental fairness.”
III. Total incorporation, under which the fourteenth amendment is construed as incorporating, or making applicable to the states, all of the rights specified in the Bill of Rights.
A. I.
B. II.
C. III.
D. None of the above.
13. Of the following, which have not been incorporated, or made applicable to the states?
I. The fifth amendment prohibition of criminal trials without grand jury indictment.
II. The seventh amendment right to a jury trial in civil cases.
III. The eighth amendment excessive bail clause.
A. I and II.
B. II and III.
C. I and III.
D. I, II, and III.
14. In constitutional law, the term “state action” means:
I. An action by one of the fifty states.
II. An action by the federal government.
III. An action by local government.
A. I.
B. II.
C. I and III.
D. I, II, and III.
15. A corporation builds ships at a corporation-owned dock. The corporation owns the surrounding land. It founds a town, providing housing and other essentials to its workers. In the town a Jehovah’s Witness distributes religious literature on the street. The town officials order him removed. The Jehovah’s Witness sues to challenge his being removed. On these facts, under Marsh v. Alabama (1946), there is:
A. State action because the private conduct involved constitutes public function.
B. No state action because the private conduct involved does not constitute public function.
C. State action because the private conduct involved does not constitute public function.
D. No state action because the private conduct involved constitutes public function.
16. The Liquor Control Board grants the Moose Lodge No. 107 a liquor license. A Moose invites a guest, Irvis, who is black, to the lodge, which refused to serve them due to the guest’s color. Irvis sued. Is there, under Moose Lodge No. 107 v. Irvis (1972), state action?
A. No, because in contrast to Burton v. Wilmington Garage (1961), Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building; thus, the LCB plays absolutely no part in establishing guest policies, does not in any way foster or encourage racial discrimination, and does not make the state a partner.
B. Yes, because liquor licensing laws are pervasive regulatory schemes under which the state dictates and continually supervises virtually every detail of the operation; thus, the licensing lends the state’s authority to the discrimination.
C. Yes, because in contrast to Burton v. Wilmington Garage (1961) Eagle was a public restaurant in a public building, Moose Lodge is a private social club in a private building; thus the LCB plays absolutely no part in establishing guest policies, does not in any way foster or encourage racial discrimination, and does not make the state a partner.
D. No, because liquor licensing laws are pervasive regulatory schemes under which the state dictates and continually supervises virtually every detail of the operation; thus, the licensing lends the state’s authority to the discrimination.
17. In Reynolds v. United States (1879), an issue involved the Mormon practice of polygamy. Congress had outlawed polygamy. Reynolds, a Mormon, married his second wife. He was charged with violating the law. The court upheld the law. Reynolds stands for the proposition that:
I. The first amendment is to be construed in absolute terms.
II. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which are in violation of social duties or subversive of the good order.
III. The more wives the better.
A. I.
B. II.
C. I and II.
D. I, II, and III.
18. A law mandates children attend school until the age of 16. An Amish child stops attending school at age 14. The state cites his parents. The parents sue to challenge the law. Under Wisconsin v. Yoder (1972), the parents must:
A. Win, because the state’s interest is not sufficiently compelling to outweigh the free exercise claim.
B. Lose, because the state’s interest is sufficiently compelling to outweigh the free exercise claim.
C. Win, because the state’s interest is sufficiently compelling to outweigh the free exercise claim.
D. Lose, because the state’s interest is not sufficiently compelling to outweigh the free exercise claim.
19. A few Native American Church members are fired from jobs as drug and alcohol clinic counselors for taking peyote, illegal in their state. On the ground that they took peyote, they are denied employment compensation benefits. Under Employment Division, Department of Human Resources of Oregon v. Smith (1990), is the denial of the unemployment compensation a denial of free exercise?
A. No, because religious conduct may be prohibited as long as the prohibition is “across the board” or “generally applicable” to all.
B. Yes, because laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion.
C. Yes, because the government cannot assert that an unbending application of a criminal prohibition is essential to fulfill any compelling interest, if it has not enforced that prohibition.
D. None of the above.
20. In Everson v. Board of Education (1947), there was a New Jersey law authorizing local school boards that provided any transportation for public school children also to provide transportation for nonprofit private school children. A township decides to use tax dollars to reimburse parents for transportation costs in sending their children to Catholic schools. The court:
I. Quoted Jefferson’s comment that the establishment clause was intended to build “a wall of separation between Church and State.”
II. Held, 5-4, that the New Jersey law did not violate the establishment clause, as the New Jersey law did no more than help parents send their children to school, regardless of their religion.
III. Split, dissenting Justices agreeing that there must be a separation of church and state but thought, on these facts, there was a violation of the separation of church and state.
A. I.
B. I and II.
C. III.
D. I, II, and III.
21. In Lemon v. Kurtzman (1971), the U.S. Supreme Court set forth the modern establishment clause test. The test to determine whether state action violates the establishment clause is that the action:
I. Must have a secular legislative purpose.
II. Must neither advance nor inhibit religion, i.e. be neutral.
III. Must not foster an excessive entanglement between government and religion.
A. I.
B. II.
C. III.
D. I, II, and III.
22. To address failing Cleveland schools, Ohio enacted a school voucher program that enabled parents to choose to send their children to participating private schools, most of which were religious. Options were public school as before, public school with funded tutoring, private religious school with scholarship, private nonreligious school with scholarship, public community school, or public magnet school. Most students were at or below poverty line. Ohio taxpayers sought an injunction. In Zelman v. Simmons-Harris (2002), the court decided whether the school voucher program violated the first amendment establishment clause. What is true of the Zelman opinion?
I. In the majority opinion, the court said the school voucher program did not violate the establishment clause in as much as the aid to religious schools is as a result of parents’ own genuine independent private choice and as such, it being neutral, it does not have the imprimatur of government endorsement.
II. In a dissent, Justice Souter said the opinion ignores Everson and starts a new phase of establishment clause jurisprudence in which the substantial character of government aid is held to be insignificant, replaced with a private choice criterion, a sort of verbal formalism that “reads away” the establishment clause.
III. In another dissent, Justice Breyer said the voucher programs direct financing to a core function of the church, i.e. the teaching of religion; thus, parental choice cannot help the taxpayer who does not want to finance religious education.
A. I.
B. II.
C. III.
D. I, II, and III.
23. In the famous case of Schenck v. United States (1919), Justice Oliver Wendell Holmes, in oft-quoted language, said one cannot “cry fire! in a crowded theater,” a metaphor used to explain:
A. The clear and present danger doctrine.
B. The bad tendency doctrine.
C. The selected rights doctrine.
D. The clear and probable danger doctrine.
24. In Brandenburg v. Ohio (1969), the court said the first amendment protects advocacy of unlawful conduct if:
I. The advocacy is directed to inciting imminent lawless action.
II. The advocacy is likely to incite lawless action.
A. I.
B. II.
C. I and II.
D. None of the above.
25. A person stands on a soapbox on a street corner to give a speech. He sees a city official there. In his speech he calls the city official a “damned racketeer” and a “damned fascist.” The city official approaches him. A fistfight ensues. The police storm in and arrest the speaker. At trial he is convicted. On appeal he challenges his conviction. Under Chaplinsky v. New Hampshire (1942), he must:
A. Lose, because he used fighting words.
B. Win, because he did not use fighting words.
C. Lose, because he did not use fighting words.
D. Win, because he used fighting words.
26. In the landmark case of New York Times Co. v. Sullivan (1964), the U.S. Supreme Court held that:
I. The first amendment protects speech criticizing a public official.
II. Unless the speech is false and made with actual malice, i.e. knowledge that it is false or reckless disregard of whether it was false or not.
III. Except if the public official is a judge.
A. I.
B. I and II.
C. I, II, and III.
D. None of the above.
27. In the “speech plus” cases the court has said government:
I. May regulate speech related conduct through content-neutral time, place, and manner regulations.
II. May not regulate speech related conduct through content-neutral time, place, and manner regulations.
III. May regulate speech related conduct through viewpoint biased time, place, and manner regulations.
A. I.
B. I and II.
C. I, II, and III.
D. None of the above.
28. Examples of a public forum are:
I. Streets, sidewalks, and parks.
II. Military bases, jails, and schools.
III. Shopping malls.
A. I.
B. I and II.
C. I and III.
D. All of the above.
29. A city council enacts a sound ordinance limiting sound emanating from vehicles to 100 decibels from the hours between 9:00 P.M. and 8:00 A.M. A candidate for State Representative hires a sound truck advertising firm to publicize his run for office. The truck uses a loud speaker to run a tape announcing the candidate’s credentials and pledges. It emanates a decibel level of 110 decibels in the hours between 9:00 P.M. and 10:00 P.M. City police order the sound truck firm to cease its activities from 9:00 P.M. to 10:00 P.M. The sound truck firm sues to challenge the ordinance. Under Ward v. Rock Against Racism (1989), the plaintiff must:
A. Lose, because the ordinance is a content-neutral time, place, manner regulation.
B. Win, because the ordinance is not a content-neutral time, place, manner regulation.
C. Lose, because the ordinance regulates political speech.
D. Win, because the ordinance does not regulate political speech.
30. In the famous case of New York Times Co. v. United States (1971), also known as the Pentagon Papers Case, the U.S. Supreme Court refused to enjoin publication of leaked classified government documents addressing Viet Nam war policies. The Pentagon Papers Case stands for the proposition that:
A. The government must show that if there is no prior restraint, there will be some special societal harm.
B. The government must show that if there is no prior restraint, there will be some inconvenience to administration officials.
C. The government must show that if there is no prior restraint, there will be publication of some disputed fact.
D. None of the above.
31. A reporter was present when two individuals synthesized hashish for sale. He published an article detailing the events. He was subpoenaed by a grand jury, but he refused to answer questions as to the names of those who synthesized and sold the hashish. He claimed a reporter’s privilege, since he had promised to change their names if those involved allowed him to see the events in question. In asserting his claim of reporter’s privilege, he must, under Branzburg v. Hayes (1972):
A. Lose, because the first amendment implies no reporter’s privilege that protects a reporter from being required to testify before grand juries, trials, or other criminal proceedings.
B. Win, because the first amendment implies a reporter’s privilege that protects a reporter from being required to testify before grand juries, trials, or other criminal proceedings.
C. Lose, because the first amendment implies a reporter’s privilege that protects a reporter from being required to testify before grand juries, trials, or other criminal proceedings.
D. Win, because the first amendment implies no reporter’s privilege that protects a reporter from being required to testify before grand juries, trials, or other criminal proceedings.
32. A gentleman transports an unregistered sawed-off shotgun across state lines. On a traffic stop, police see the shotgun and arrest him. A federal statute makes it illegal to transport unregistered firearms across state lines. In challenging the prosecution, the defendant sues alleging the federal statute violates the second amendment. Under United States v. Miller (1939), the defendant will:
A. Lose, because the second amendment provides a collective right to the “militia,” not an individual right to the individual.
B. Win, because the second amendment provides an individual right to the individual, not a collective right to the “militia.”
C. Lose, because the interstate commerce clause allows violation of any of the specific limits the Constitution places on government.
D. None of the above.
33. In the District of Columbia, there is a law banning handguns and requiring other firearms be disassembled or trigger-locked. A gentleman applies for a permit to own a handgun. The city refuses. He brought suit against the city, claiming the law violated his second amendment right to keep and bear arms. Under District of Columbia v. Heller (2008), the plaintiff will:
A. Lose, because the second amendment provides a collective right to the “militia,” not an individual right to the individual.
B. Win, because the second amendment provides an individual right to the individual, not a collective right to the “militia.”
C. Lose, because regulation of interstate commerce can violate any of the specific limits the Constitution places on government.
D. None of the above.
SHORT ANSWER
(counts as two multiple choice)
In the landmark first amendment case of Brandenburg v. Ohio (1969), the court issued an opinion regarding advocacy of unlawful conduct and incitement. What did the court say the rule is? Explain it. Why did the court think it is necessary?
Incitement
EXTRA CREDIT SHORT ANSWER
(counts as two multiple choice)
In the landmark first amendment case of Chaplinsky v. New Hampshire (1942), the court enunciated the theory of high value versus low value speech. Was Chaplinsky’s speech high value or low value? What are the categories of low value speech?
ESSAY
(counts as fifteen multiple choice)
An Amish man, Abram, removes his son, Isaac, age thirteen, from school. He home schools Isaac. He teaches him agricultural skills, such as building barns, tending crops, and raising livestock. Instead of stressing intellectual learning, self-distinction, and competitiveness, as public schools do, Abram emphasizes learning by doing, community welfare, and cooperation. The school notifies police, who cite Abram with violating a state statute requiring school attendance until age sixteen.
Incensed, Abram goes to the school. He screams at the Helpant principal that he is a “God damned racketeer” and a “damned fascist” and to come out from behind the glassed in service counter and “fight like a man.” He storms out but not before security calls the police. Police arrive, investigate, and attain an arrest warrant on charges of disorderly conduct.
Police proceed to Abram’s house. They knock and announce. He answers the door. The police enter. They see on the coffee table a handgun, a 9 millimeter Gen 4 Glock 19 with “RTF” (rough textured frame), weighing in at 20.99 ounces unloaded and 29.98 ounces loaded. There is an ordinance that bans possession of handguns completely and also bans rifles and shotguns, unless the rifle or shotgun is locked in a safe, trigger locked, or disassembled. They charge Abram with unlawful possession of a firearm.
In the school attendance case, Abram defends against the charge that he removed his son from school. In the citation case, Abram defends against the charge of disorderly conduct. In the criminal case, Abram defends against the charge of persons not to possess a firearm. Using the CIRAC method, write a brief essay deciding the issues of constitutional law.
