Ch. 3 Business and the constitution practive quiz and answers & key terms

QUICK QUIZ Due Process and Equal Protection

Are these laws unconstitutional?

Assume that a driver’s license is a liberty interest or a form of property. If a driver is arrested for DUI, may his driver’s license be automatically suspended without any notice or a hearing? Why is the government constitutionally required to provide some sort of opportunity for a driver to object before the government can suspend his license?

Suppose a city enacts a local ordinance making it illegal to “wander or stroll around from place to place at night without any lawful purpose or object.” How might such a law be challenged on constitutional grounds?

Suppose a state enacts a law requiring all public and private institutions of higher learning in the state to charge the same tuition to in-state and out-of-state students. Would such a law be unconstitutional?

Answers to this Quick Quiz are provided at the end of the chapter.

TAKEAWAY CONCEPTS Due Process and Equal Protection

  • There are two types of due process: procedural due process and substantive due process.

  • Procedural due process means that any government decision to take life, liberty, or property must be made using fair procedures. Specifically, the government must give a person reasonable notice, a fair hearing, and an opportunity to be heard. Substantive due process means that laws must not be vague, overly broad, or arbitrary.

  • Equal protection requires the government to treat people who are similarly situated equally.

  • Courts generally use one of three levels of review in cases involving due process or equal protection.

  • Most state government actions, including almost every economic regulation and tax-related law, are reviewed using the rational basis test: The government need only show (1) that its action advanced a legitimate government objective (such as health, safety, or welfare) and (2) that the action was in some way related to the government’s objective.

  • In some cases, such as classifications based on gender discrimination, courts will use an intermediate standard of scrutiny: Courts will uphold a government action as constitutional if the government can prove that (1) the action furthers an important government objective and (2) the action is substantially related to the government’s objective.

  • Strict scrutiny is the most stringent standard of judicial review: Whenever a government action impairs a fundamental constitutional right or is based on a suspect classification, courts will uphold the law only if (1) the government’s objective is compelling, (2) the means chosen by the government to advance that objective are narrowly tailored or necessary to achieve that compelling end, and (3) no less restrictive alternatives exist.

TAKEAWAY CONCEPT Interpreting the Constitution

There are two major theories of constitutional interpretation: originalism and the living Constitution. Originalism is the conservative view that the meaning of the Constitution is fixed and stable. With this view, the only way of changing the Constitution is by formally amending it under Article V. The living Constitution is the progressive view that the meaning of the Constitution is dynamic and flexible.

THINKING STRATEGICALLY: The Constitution as a Commitment Device

Commitment device any method or manner of effectively reducing one’s options or choices ahead of time.

QUESTIONS

Can you think of other precommitment strategies used in the business world?

Have you ever used a precomittment strategy in your own life? Was it successful? Why or why not?

What are the relative advantages and drawbacks to using a precommitment strategy?

KEY TERMS

Federalism, p. 50  The existence of a dual form of government in which there are two levels of government in single political system: a central or “federal” government as well as multiple regional governments.

Separation of powers, p. 50  The existence of multiple power centers within a single level of government.

Article 1, Section 8, p. 51 The main provision of the Constitution that enumerates the limited powers of Congress.

Executive order, p. 52 An order made by the president that carries the full force of law; issued to enforce or interpret federal statutes and treaties.

Judicial review, p. 53 The implied power of the courts to declare unconstitutional any law that is inconsistent with the Constitution.

Commerce Clause, p. 53 That part of the Constitution that grants to Congress the power to regulate interstate and foreign commerce.

Bill of Rights, p. 55  The first ten amendments to the United States Constitution.

Probable cause, p. 60 A reasonable amount of suspicion supported by circumstances sufficiently strong to justify a belief that a person has committed a crime.

Common law, p. 62 Law that has not been passed by the legislature but rather is made by the courts and is based on the fundamentals of previous cases with similar facts.

Procedural due process, p. 64  The idea that any government decision to take life, liberty, or property must be made using fair procedures; at a minimum, the government must give a person reasonable notice, a fair hearing, and an opportunity to be heard.

Substantive due process, p. 64  The idea that laws must not be vague, overly broad, or arbitrary.

Equal protection, p. 64   The idea that people who are similarly situated should be treated equally.

Rational basis test, p. 65  Under the rational basis test, a government action is constitutional (1) if its action advances a legitimate government objective (such as health, safety, or welfare) and (2) if the action is in some way related to the government’s objective.

Strict scrutiny, p. 66  Strict scrutiny is the most stringent standard of judicial review: whenever a government action impairs a fundamental constitutional right or is based on a suspect classification, courts will uphold the action only if (1) the government’s objective is compelling, (2) the means chosen by the government to advance that objective are narrowly tailored or necessary to achieve that compelling end, and (3) no less restrictive alternatives exist.

Originalism, p. 68  The conservative view that the meaning of the Constitution is fixed and stable. With this view, the only way of changing the Constitution is by formally amending it under Article V.

Living Constitution, p. 69  The progressive view that the meaning of the Constitution is dynamic and flexible.

Commitment device, p. 70  Any method or manner of effectively reducing one’s options or choices ahead of time.

CASE SUMMARY 3.1: Brown v. Board of Education II, 394 U.S. 294 (1955)

Judicial Enforcement of Equal Protection

In the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), the U.S. Supreme Court declared that racial segregation in public schools was a violation of the Equal Protection Clause of the Fourteenth Amendment. Many school districts, however, refused to comply with the Supreme Court’s decision. The following year, in Brown v. Board of Education, 394 U.S. 294 (1955) (Brown II), the Supreme Court declared that the process of desegregation should occur “with all deliberate speed,” but the Supreme Court did not set a firm deadline or impose any specific penalties for noncompliance with its landmark 1954 decision.

CASE QUESTIONS

Why didn’t the Supreme Court set a deadline or impose any penalties for noncompliance with its landmark desegregation decision?

In your opinion, does the Equal Protection Clause prohibit classifications on the basis of sexual orientation or gender identification?

CASE SUMMARY 3.2: Executive Order 10730 (Desegregation of Central High)

Executive Enforcement of Equal Protection

Three years after the Supreme Court’s landmark desegregation decision in Brown I, nine African-American students—Minnijean Brown, Elizabeth Eckford, Ernest Green, Thelma Mothershed, Melba Pattillo, Gloria Ray, Terrence Roberts, Jefferson Thomas, and Carlotta Walls—attempted to integrate Central High School in Little Rock, Arkansas. On September 4, 1957, the first day of school at Central High, an all-white mob gathered in front of the school, and Governor Orval Faubus deployed the Arkansas National Guard to restore order and prevent the black students from entering. In response to Faubus’s action, a team of NAACP lawyers, led by Thurgood Marshall, petitioned a federal district court to issue an injunction preventing the governor from blocking the students’ entry. When the nine students tried to enter the school a second time, a full-scale riot broke out and the nine students were again denied entry. Finally, after the mayor of Little Rock asked the federal government for help, President Dwight D. Eisenhower issued Executive Order 10730, placing the Arkansas National Guard under federal control and sending a thousand paratroopers from the 101st Airborne Division of the U.S. Army to help them restore order in Little Rock and allow the Little Rock Nine to attend Central High.

CASE QUESTIONS

Was President Eisenhower constitutionally required to send federal troops into Little Rock? Could a court have ordered him to do so?

If President Eisenhower had not sent federal troops into Little Rock, how would the federal courts have enforced the Supreme Court’s desegregation decision?

CASE SUMMARY 3.3: Title IX

Legislative Enforcement of Equal Protection

Title IX is part of the United States Education Amendments of 1972, Public Law No. 92-318, 86 Stat. 235 (June 23, 1972), codified at 20 U.S.C. 1681–1688. It states (in part): “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” For many years, women were not given the same academic or athletic opportunities that men were afforded. For example, prior to the enactment of Title IX, only 1 percent of collegiate athletic budgets went to female sports, and at the high school level, male athletes outnumbered female athletes 12.5 to 1. After Title IX was enacted, there was a 600 percent increase in the number of women playing college sports.

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CASE QUESTIONS

What if Congress had never enacted Title IX? Could the federal courts or the president have prohibited discrimination in educational programs and activities? How?

What is the source of Congress’s power to prohibit discrimination in educational programs and activities?

CASE SUMMARY 3.4: Mahanoy Area School District v. B. L., 594 U.S. __ (2021)

Student Speech

Brandi Levy, a student at Mahanoy High School, posted a foul-mouthed message to her Snapchat account from an off-campus location after she failed to make the school's varsity cheer squad. She sent her message to a private circle of friends and deleted it later, but a screenshot of the message was later shown to school staff, and Ms. Levy was then suspended from cheerleading the next year under her school's social media policy. Ms. Levy's parents then filed suit on her behalf, arguing that the school district had unconstitutionally punished her for speech made completely outside of the school. Previously, courts have ruled that public schools may regulate and punish student speech if such speech would materially and substantially disrupt the

work and discipline of the school.

CASE QUESTIONS

Does a school's disciplinary action against a student for speech that takes place outside of school hours and away from campus violate the First Amendment?

How should the courts determine whether a given speech act (such as Ms. Levy's private Snapchat post) materially and substantially disrupts the work and discipline of the school?

Could wearing a red baseball cap with the words "Make America Great Again" materially and substantially disrupt the work and discipline of a school?

CASE SUMMARY 3.5: State v. DeAngelo, 930 A.2d 1236 (N.J. Supreme Ct. 2007)

Commercial Speech

During a labor dispute, a local labor union engaged in a public protest of what it claimed were unfair labor practices of a local business. As part of its protest, union members displayed a 10-foot inflatable rat-shaped balloon on a public sidewalk in front of the business involved in the dispute. A municipal ordinance banned all public displays of “balloon or inflated” signs except in cases of a grand opening. The union challenged the ordinance in court as an unconstitutional ban on commercial speech.

CASE QUESTIONS

Is the ordinance constitutional, or is it a valid (content-neutral) “time, place, and manner” regulation?

What level of scrutiny will a court apply to the ordinance?

What if it were an election year and the labor union had placed the inflatable rat-shaped balloon in front of the local chapter of the Republican Party or Democratic Party to protest either party’s political platform?

CASE SUMMARY 3.6: U.S. v. Alderman, 565 F.3d 641 (9th Cir. 2009)

Commerce Clause

In 2002, Congress enacted a law called the Body Armor Act, which makes it unlawful for a person convicted of a felony involving a "crime of violence" to possess body armor. In 2005, Cedrick Alderman was arrested in 2005 during a sting operation involving an attempted controlled purchase of cocaine. Because Mr. Alderman was wearing a bullet-proof vest at the time of his arrest (the vest was manufactured in California and then sold to a distributor in Washington State, who then sold it to Mr. Alderman), he was convicted of violating the 2002 Body Armor Act. Mr. Alderman challenged the law’s constitutionality during appeal, however, arguing that Congress had exceeded its authority because the statute was not sufficiently related to interstate commerce.

CASE QUESTIONS

Is the Body Armor Act constitutional?

What if Mr. Alderman purchased the body armor in California (the State where it was manufactured)?

Suppose Congress enacts a prospective law prohibiting all persons from purchasing or owning body armor in the future. Would such a law be constitutional?

CHAPTER REVIEW QUESTIONS

Article I of the U.S. Constitution

  • Protects freedom of speech.

  • Contains the Supremacy Clause.

  • Makes the president the commander-in-chief of the armed forces.

  • Grants Congress the power to regulate commerce.

  • Grants Congress the power to negotiate treaties.

Article I of the U.S. Constitution does all of the following EXCEPT

  • Establishes the Senate and House of Representatives.

  • Outlines the powers of Congress in domestic and foreign affairs.

  • Specifies the manner of impeachment.

  • Grants Congress the power to regulate commerce.

  • Establishes two methods of amending the Constitution.

Article II of the U.S. Constitution

  • Contains the Supremacy Clause.

  • Establishes the powers of the president.

  • Guarantees the right to keep and bear arms.

  • Specifies the manner of impeachment.

  • Grants Congress the power to regulate commerce.

    Article III of the U.S. Constitution

  • Contains the Supremacy Clause.

  • Establishes the powers of the president.

  • Prohibits the quartering of soldiers in private houses.

  • Establishes the judicial branch of the federal government.

  • Specifies the manner of impeachment.

Judicial review refers to

  • The case or controversy requirement of Article III of the Constitution.

  • The separation of powers among the three branches of government.

  • The three standards of review used by courts in constitutional cases.

  • The implied power of the courts to declare unconstitutional any law that is inconsistent with the Constitution.

  • The implied power of the executive branch to veto Supreme Court decisions that are inconsistent with the Constitution.

The Commerce Clause applies to interstate commerce as well as foreign commerce.

True

False

The Due Process Clause in the Bill of Rights declares that no state shall deny any person due process of law.

True

False

The privilege against compulsory self-incrimination is located in the First Amendment.

True

False

The right to assistance of counsel in criminal cases is guaranteed by the Sixth Amendment.

True

False

The text of the Equal Protection Clause of the Fourteenth Amendment prohibits Congress from discriminating on the basis of race, national origin, and other suspect categories.

True

False

Due Process and Equal Protection

  1. This question involves procedural due process. Before the government can take any action depriving someone of his life, liberty, or property, it must provide him with reasonable notice and a hearing, and the government must give him the opportunity to object to the government’s action.

  2. Vague or overly broad laws could be struck down by the courts on substantive due process grounds. In this particular case, one could argue that the anti-panhandling law described here is too vague or overly broad, since it contains a blanket prohibition against all wandering and strolling at night, i.e., the law is overinclusive. Alternatively, one could argue that there is no rational relation between the government’s objective (reducing panhandling on the streets) and “wandering or strolling at night,” i.e., the law is underinclusive.

  3. This question involves equal protection, the police power, and rational review. Here, the state is mandating equal treatment of in-state and out-of-state students, but does it have the power to impose this mandate on private colleges and private universities? States have broad police powers to protect the health, safety, and welfare of its residents, and courts will generally use the rational basis test to determine whether an economic regulation is constitutional. Here, the government will have to prove that its equal tuition mandate advanced a legitimate government objective (such as health, safety, or welfare) and that it was in some way related to the government’s objective.