2L - Constitutional Law I

Which of the following arguments might persuade a textualist/originalist?

(a) The Framers drafted the First Amendment based on British repression of speech advocating for American independence and therefore did not contemplate protection of obscene material.
(b) Free Speech has come to take on a more expansive meaning than it did in the 1800s and now extends well beyond political speech.

© To achieve its objectives, the First Amendment must be applied to a broader scope of speech than it might want to protect because of the chilling effect of uncertainty about what speech is protected might cause.

(d) Free speech inherently involves a freedom of thought, which should be protected from government control.

(A) The Framers drafted the First Amendment based on British repression of speech advocating for American independence and therefore did not contemplate protection of obscene material.

Which of the following is NOT an argument a fundamental principles/Living Constitution theorist might make?

(a) If the Constitution were limited to the intent of the framers, we would lose many of the protections from government oppression that we enjoy today.

(b) The job of the Court is to effectuate the underlying principles expressed in the Constitution

(c) The constitution was purposely flexible in its language to ensure it would not become irrelevant to future generations.

(d) Courts are not the branch of government charged with responsibility for making social change.

(d) Courts are not the branch of government charged with responsibility for making social change.

Which interpretive theory does the following excerpt best fit? (Court held that NY gun law prohibiting handguns absent a special need for self-defense violated the Second Amendment.)

Since Heller and McDonald, the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” E.g., Kanter v. Barr, 919 F. 3d 437, 441 (CA7 2019) (internal quotation marks omitted). But see United States v. Boyd, 999 F. 3d 171, 185 (CA3 2021) (requiring claimant to show “‘a burden on conduct falling within the scope of the Second Amendment’s guarantee’”). The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. E.g., United States v. Focia, 869 F. 3d 1269, 1285 (CA11 2017). If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, “then the analysis can stop there; the regulated activity is categorically unprotected.” United States v. Green, 679 F. 3d 510, 518 (CA6 2012) (internal quotation marks omitted). But if the historical evidence at this step is “inconclusive or suggests that the regulated activity is not categorically unprotected,” the courts generally proceed to step two. Kanter, 919 F. 3d, at 441 (internal quotation marks omitted).

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(b) Originalism

The reference to the historical meaning of the Constitution best fits originalism (because it is not only relying on text but is also considering the original intent of the framers).

The following is an excerpt from the dissent in the same case. Which theory does it best fit?

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Fourth, I fear that history will be an especially inadequate tool when it comes to modern cases presenting modern problems. Consider the Court’s apparent preference for founding-era regulation. See ante, at 25–28. Our country confronted profoundly different problems during that time period than it does today. Society at the founding was “predominantly rural.” C. McKirdy, Misreading the Past: The Faulty Historical Basis Behind the Supreme Court’s Decision in District of Columbia v. Heller, 45 Capital U. L. Rev.107, 151 (2017). In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Ibid. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Ibid. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs. Id., at 152 (“For the most part, a population living on farms and in very small towns did not create conditions in which firearms created a significant danger to the public welfare”); see also supra, at 8–9.

This problem is all the more acute when it comes to “modern-day circumstances that [the Framers] could not have anticipated.” Heller, 554 U. S., at 721–722 (BREYER, J., dissenting). How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting “ghost guns” constructed with the aid of a three-dimensional printer? See, e.g., White House Briefing Room, FACT SHEET: The Biden Administration Cracks Down on Ghost Guns, Ensures That ATF Has the Leadership It Needs To Enforce Our Gun LawsLinks to an external site. (Apr. 11, 2022). . . Or modern laws requiring all gun shops to offer smart guns, which can only be firedby authorized users? See, e.g., N. J. Stat. Ann. §2C:58–2.10(a) (West Cum. Supp. 2022). Or laws imposing additional criminal penalties for the use of bullets capable of piercing body armor? See, e.g., 18 U. S. C. §§921(a)(17)(B), 929(a).

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(d) Living Constitution Theory

The reliance on modern day problems best fits a Living Constitution approach.

Which theory does the following excerpt best fit? This case held that “due process” under Fifth Amendment encompasses the antidiscrimination principles expressed in the subsequently ratified Fourteenth Amendment’s Equal Protection Clause.

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This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented. 344 U.S. 873, 73 S.Ct. 173, 97 L.Ed. 676.

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. 1 The
legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an
equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws' is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(c) Fundamental Principles

The reference to the American ideal of fairness best fits a fundamental principles approach.

Which theory does the following excerpt best fit? This case held that the Establishment Clause in the First Amendment did not excuse a school’s termination of a football coach for engaging in prayer at games.

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As we have seen, the District argues that its suspension of Mr. Kennedy was essential to avoid a violation of the Establishment Clause. Id., at 35–42. On its account, Mr. Kennedy’s prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. App. 43. To resolve that clash, the District reasoned, Mr. Kennedy’s rights had to “yield.” Ibid. The Ninth Circuit pursued this same line of thinking, insisting that the District’s interest in avoiding an Establishment Clause violation “‘trump[ed]’” Mr. Kennedy’s rights to religious exercise and free speech. 991 F. 3d, at 1017; see also id., at 1020–1021. But how could that be? It is true that this Court and others often refer to the “Establishment Clause,” the “Free Exercise Clause,” and the “Free Speech Clause” as separate units. But the three Clauses appear in the same sentence of the same Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” Amdt. 1. A natural reading of that sentence would seem to suggest the Clauses have “complementary” purposes, not warring ones where one Clause is always sure to prevail over the others.

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(a) Textualism

The reliance on the absence of certain language in the Constitution suggests a textualist approach.

What theory best fits this excerpt from a brief filed in the Lawrence v. Texas case (which invalidated anti-sodomy laws)?

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All adults have the same fundamental liberty interests in their private consensual sexual choices. This fundamental protection is rooted in three well-recognized aspects of personal liberty — in intimate relationships, in bodily integrity, and in the privacy of the home. These aspects of liberty should not be viewed as “a series of isolated points,” but are part of a “rational continuum” that constitutes the full scope of liberty of a free people. Casey, 505 U.S. at 848 (quotation marks omitted); see also Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (“In a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed”). Sexual intimacy marks an intensely personal and vital part of that continuum. The Court has recognized that “choices to enter into and maintain certain intimate human relationships must be secured *12 against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). “[T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.” Id. at 619; see also Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 545-46 (1987).

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(c) Fundamental Principles

The emphasis on fundamental rights suggests a fundamental principles approach.

Which theory best fits the following excerpt? The case held that the post-civil war Thirteenth and Fourteenth Amendments applied only to the eradication of slavery.

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We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican of Chinese race within our territory, this amendment may safely be trusted to make it void. And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood, is that, in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished as far as constitutional law can accomplish it.

(a) Textualism

(b) Originalism

(c) Fundamental Principles

(d) Living Constitution Theory

(b) Originalism

This one was a little more tricky because it recognized the importance of the text of the Constitution. However, the Court seems to be placing more emphasis on the original intent, making originalism an even better fit.

The Court identifies two claims made by the plaintiff in the Allen v. Wright case. The one that gets the farthest in the Court’s analysis is based on the impairment of the plaintiffs’ children’s ability to have desegregated public schools. Which requirement of standing does the Court find that fails?

(a) Causation

(b) Injury

(c) Redressability

(d) Ripeness

(a) Causation

“The injury alleged is not fairly traceable to the Government conduct respondents challenge.”

“…Results from the independent action of some third party not before the court” (i.e. discriminatory private schools).

“Would be fairly traceable … only if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciabe difference in public school integration” “no such allegation.”

The Court finds that various speculative claims would need to be true in order for the Allen v. Wright plaintiffs to have standing. Which of the following is not one of the claims the Court finds to be speculative?

(a) Tax exempt status helps discriminatory private schools remain competitive in the market.

(b) If a private school desegregates, the children who would have gone to that school will go to a public school instead.

© Enforcing nondiscrimination laws against private schools will impact the racial composition of public schools significantly.

(d) The threat of losing tax exempt status would lead private schools to desegregate.

(a) Tax exempt status helps discriminatory private schools remain competitive in the market.

A school district implements a busing system designed to racially integrate schools that assigns students to schools within the district based in part on their race. Parents of incoming freshman want an injunction against the new policy because they argue it violates the Equal Protection Clause of the Fourteenth Amendment. The law suit is brought prior to the start of the admissions process for the year. Do the parents have standing? Do not get distracted by any assumptions you may have about the merits of the racial discrimination claim.

(a) No because if the students are assigned to their first-choice school, they will not have been harmed.

(b) No because stopping the policy would not ensure that parents would get their first-choice school.

(c) No because students have no right to any particular private school.

(d) Yes because the students face imminent injury in the improper use of race in the admissions process.

A federal agency in charge of public safety recently banned a pesticide that has been proven to cause the death of certain bird species. A farmers rights group believes the agency acted outside of its delegated power in violation of the Constitution and wishes to enjoin the ban. Which of the following class of plaintiffs would NOT be a good bet for the lawsuit?

(a) Farmers who have pending orders for the pesticide;

(b) Farmers whose crops have been attacked by pests that can only be effectively curbed by banned pesticide.

© Farmers who have a past record of ordering the pesticide for use on their crops;

(d) Farmers who raise crops known to face pests that can only be effectively curbed by the banned pesticide.

Which of the following has an appropriate closeness to allow the third party to bring the suit? The answer is provided in one of the cases you read in Week 2.

(a) A taxpayer and other taxpayers regarding anything other than a violation of the Tax & Spend clause.

(b) Doctor and patient seeking doctor's services that the challenged law does not permit.

© A politician and voters in her district when challenging voting restrictions.

(d) A parent and adult child.

(b) Doctor and patient seeking doctor's services that the challenged law does not permit.

Richardson does not qualify for standing under Flast because:

(a) Richardson was not a taxpayer.

(b) No one can bring suit against the government.

© Richardson is not alleging a specific violation of the taxing and spending power.

© Richardson is not alleging a specific violation of the taxing and spending power.

Congress passed an act that made all prescription drug packaging print the common name on the label or face criminal penalties. Before the law was enforced, ABC Pharma. Inc. sued the Commissioner of Food and Drugs in federal court. ABC Pharma argued that enforcing the act would require a massive rebranding and would be unduly expensive. The government argued that ABC Pharma had not suffered any actual damage yet and, therefore, the claim was not yet ripe for review. Should the claim survive the ripeness challenge?

(a) No because the act has not yet been enforced.

(b) No because there is no actual harm to ABC Pharma yet.

© Yes because ABC Pharma will suffer immediate and severe harm if the court does not consider the claim.

(d) Yes because the act could be enforced in the future and may cause harm.

© Yes because ABC Pharma will suffer immediate and severe harm if the court does not consider the claim.

Which of the following is the most accurate comparison of Poe and Abbott Labs?

(a) In both cases, compliance with the law at issue would cause harm to the plaintiffs. However, the Court concluded that the law at issue in Poe was unlikely to be enforced whereas the likelihood of enforcement did not appear to be an issue in Abbott Labs.

(b) The Court found that the company in Abbott Labs had more of a personal stake in challenging the law at issue than did the plaintiff in Poe.

© The Court found that the law at issue in Poe was less clearly invalid than the law at issue in Abbott Labs.

(a) In both cases, compliance with the law at issue would cause harm to the plaintiffs. However, the Court concluded that the law at issue in Poe was unlikely to be enforced whereas the likelihood of enforcement did not appear to be an issue in Abbott Labs.

Which of the following is an exception to the usual mootness rule (which requires live, ongoing injury throughout the entire case)?

(a) The defendant ceases the harmful conduct and is unlikely to redo it in the future.

(b) The defendant ceases the harmful conduct but might redo it in the future.

© The court has already invested considerable resources in resolving the matter, and dismissing the case would be inefficient.

(d) The law is likely to be applied to others in the future.

(b) The defendant ceases the harmful conduct but might redo it in the future.

Which of the following is NOT a reason to permit a claim to proceed? (In other words, all of the answer choices would permit a claim to proceed except for one – choose that one as the correct answer.)

(a) There is a credible threat of enforcement against the plaintiff.

(b) The plaintiff will otherwise be forced to risk criminal penalties by violating the law.

© Enforcement of the penalties against the plaintiff is inevitable at some future point.

(d) The nature of the harm is such that by the time a case typically comes to an end, the claim will be moot.

(b) The plaintiff will otherwise be forced to risk criminal penalties by violating the law.