Deck 1: Constitutional Sources of Civil Rights and Liberties

Question 1

What is substantive, as distinct from procedural, due process?

Answer 1

Not answer

Question 2

Is the incorporation of the First Amendment a form of substantive due process?

Answer 2

The incorporation of the First Amendment, as well as other amendments within the Bill of Rights, into the due process clause of the Fourteenth Amendment is a legal concept known as "selective incorporation." This process extends the protections from the federal government to the state governments. However, it is important to distinguish between substantive due process and the incorporation doctrine, as they are related but distinct legal concepts.Substantive due process is a principle that asserts that the Due Process Clause of the Fourteenth Amendment not only requires "due process," or fair procedures, but also protects certain fundamental rights from government interference, even if the governmental process behind such interference is fair. It involves the courts determining which rights are fundamental and thus protected by the Due Process Clause.
The incorporation of the First Amendment, on the other hand, is not a form of substantive due process but rather a specific application of the doctrine of incorporation. The Supreme Court has used the Due Process Clause of the Fourteenth Amendment to apply most of the rights guaranteed in the Bill of Rights to the states. This means that the individual protections of free speech, free exercise of religion, freedom of the press, and the right to peaceably assemble and petition the government, as outlined in the First Amendment, are not only protections from the federal government but from state governments as well.
The incorporation of the First Amendment began with the landmark case Gitlow v. New York (1925), where the Supreme Court held that the freedom of speech protected by the First Amendment is among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.
In summary, while the incorporation of the First Amendment through the Fourteenth Amendment's Due Process Clause is related to the concept of substantive due process, it is not itself a form of substantive due process. Instead, it is an application of the incorporation doctrine, which has extended the protections of the Bill of Rights to apply to state governments, ensuring that individual rights are safeguarded at all levels of government in the United States.

Question 3

Is the rational basis test a form a substantive due process?

Answer 3

The rational basis test is not a form of substantive due process, but rather a standard of review used by courts to evaluate the constitutionality of certain types of government action under the Equal Protection Clause of the Fourteenth Amendment and, in some cases, under the Due Process Clause. Substantive due process, on the other hand, is a principle that protects certain fundamental rights from government interference, even if the laws infringing on those rights are enacted through a proper procedural mechanism.Substantive due process is concerned with the protection of fundamental rights such as privacy, marriage, and family, and it requires the government to justify its interference with these rights by showing that it has a compelling interest and that the means chosen to achieve that interest are narrowly tailored. The level of scrutiny applied in substantive due process cases can vary from rational basis to intermediate scrutiny to strict scrutiny, depending on the right at issue and the context of the case.
The rational basis test is the most lenient form of judicial review and is typically applied to laws or government actions that do not implicate a fundamental right or a suspect classification (such as race or national origin). Under the rational basis test, the government action is presumed to be valid and will be upheld if it is rationally related to a legitimate government interest. The burden of proof is on the challenger to show that there is no conceivable legitimate purpose for the law or that the law is not rationally related to its purpose.
In summary, while the rational basis test is a standard of review that may be used in the context of substantive due process cases, it is not itself a form of substantive due process. It is one of several standards that courts use to determine whether government actions comply with constitutional protections, including those afforded by substantive due process.

Question 4

Paraphrasing ________________, the Declaration of Independence (1776) declares the "unalienable" rights of man to be "life, liberty and the pursuit of happiness."

A) Thomas Hobbes
B) Jean-Jacques Rousseau
C) John Locke
D) Adam Smith

Question 5

A(an) _________________ is a legislative act that imposes punishment upon a person without benefit of a trial in a court of law.

A) corpus delecti
B) bill of attainder
C) writ of prohibition
D) none of the above

Question 6

Article III, Section 3 of the Constitution provides that "Treason against the United States, shall consist only in levying War against them, or in adhering to their enemies, giving them ________________."

A) Information
B) Munitions or Plans of War
C) Aid and Comfort
D) none of the above

Question 7

To protect citizens against unwarranted prosecution for treason, the Constitution specifies that "No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same Overt act, or on _______ in open Court."

A) Indictment
B) Conviction
C) Confession
D) none of the above

Question 8

Can you think of a situation in which the constitutional ideals of individual freedom and equality under the law are in conflict? In such cases, which value should prevail?

Question 9

Historically, the ________ Clause was an important source of litigation in the federal courts. In modern times, it is seldom interpreted to impose significant limits on the states in the field of economic regulation.

A) Commerce
B) Full Faith and Credit
C) Contract
D) Ninth Amendment

Question 10

Would the Supreme Court uphold an act of Congress making it a crime for private citizens to possess any and all handguns? How would you view the constitutional question involved?

Question 11

Would the Privileges and Immunities Clause of the Fourteenth Amendment be a sounder basis than the Due Process Clause for the incorporation of the Bill of Rights? Why did the Supreme Court rely on the Due Process Clause in its incorporation decisions?

Question 12

Consider the controversial issue of whether "enemy combatants" captured as a part of the "war on terrorism" and incarcerated at the American naval base at Guantanamo Bay, Cuba should be allowed access to the writ habeas corpus and the United States federal courts. Should these individuals be allowed access to the federal courts? Use the relevant provision(s) of the Constitution to support your position.

Question 13

The writ of __________________ enables a court of law to review a custodial situation and order the release of an individual who is found to have been illegally held in custody.

A) certiorari
B) assistance
C) mandamus
D) none of the above

Question 14

Which is more valued in our society, freedom or equality? How does this affect the development of constitutional law?

Question 15

Consider the various Supreme Court perspectives on the concept of liberty. Which perspective resonates with you?

Question 16

To what extent is constitutional freedom limited to the protection of the individual from government? To what extent is it the guarantee that the individual be able to realize his or her potential as a human being?

Question 17

The Framers of the Constitution were heavily influenced by the theory of __________, in which rights are seen as inherently belonging to individuals.

A) divine right
B) inherent powers
C) primogeniture
D) natural rights

Question 18

Why should the federal courts be authorized to grant writs of habeas corpus to review state criminal convictions?

Question 19

In The Federalist No. 84, _________________ argued that since the Constitution provided for limited government through enumerated powers, a Bill of Rights was unnecessary.

A) John Jay
B) John Adams
C) Alexander Hamilton
D) none of the above

Question 20

Under what circumstances might the failure of government to take action constitute a denial of due process of law?

Question 21

The Second Amendment refers to the keeping and bearing of arms in the context of _______________________.

A) a well regulated militia
B) personal safety and protection
C) a rebellion or invasion
D) none of the above

Question 22

The Seventh Amendment guarantees the right to a jury trial in federal civil suits "at common law" where the amount at issue exceeds ____________.

A) twenty dollars
B) one hundred dollars
C) one thousand dollars
D) one million dollars

Question 23

Like the Thirteenth and Fourteenth Amendments, the Fifteenth Amendment was an outgrowth of _______________.

A) the Civil War
B) the Industrial Revolution
C) Shays' Rebellion
D) the Spanish-American War

Question 24

In The Federalist No. 84, ______________ argued that since the Constitution provided for limited government through enumerated powers, a Bill of Rights was unnecessary.

A) Franklin
B) Hamilton
C) Jay
D) Jefferson

Question 25

The _____________ Amendment prohibits military authorities from quartering troops in citizens' homes without their consent.

A) Second
B) Third
C) Fourth
D) none of the above

Question 26

In Breedlove v. Suttles (1937), the Supreme Court ruled that __________, in and of themselves, did not violate the Fourteenth or Fifteenth Amendments.

A) poll taxes
B) literacy tests
C) white primaries
D) grandfather clauses

Question 27

In Chicago, Burlington & Quincy R. Co. v. McGuire (1911), Justice ____________ stated, "Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community."

A) Louis D. Brandeis
B) Thurgood Marshall
C) Anthony Kennedy
D) Charles Evans Hughes

Question 28

The Supreme Court refused to entertain a claim brought on behalf of Joshua DeShaney against a publicly funded social agency because, in the stated view of the majority, no _________ was demonstrated.

A) knowledge by social workers of the violent tendencies of Joshua's father
B) indication of previous injury to Joshua
C) inattention by social workers
D) required element of state action

Question 29

The Fifth Amendment requires the federal government to obtain a (an) ______________ from a _______________ before trying someone for a felony.

A) indictment; grand jury
B) conviction; petit jury
C) warrant; judge or magistrate
D) subpoena; judge or magistrate

Question 30

In 1970, Congress passed a measure lowering the voting age from twenty-one to eighteen in both state and federal elections. The Supreme Court, however, declared this measure unconstitutional in _____________________.

A) Oregon v. Mitchell
B) Massachusetts v. Laird
C) Kissinger v. Halperin
D) Texas v. Johnson

Question 31

In its most generic sense, __________ refers to the exercise of governmental power under the rule of law with due regard for the rights and interests of individuals.

A) eminent domain
B) sovereignty
C) civil liberty
D) due process

Question 32

The two aspects of constitutional rights include _________ and ________.

A) liberty and privacy
B) equality and privacy
C) liberty and equality
D) none of the above

Question 33

In 1848, a delegation of women, including the famous suffragist ________, met at Seneca Falls, New York to address the "social, civil, and religious conditions and rights of woman."

A) Elizabeth Cady Stanton
B) Sarah Miles Standish
C) Elizabeth Jane Parker
D) Sarah Baker Worthington

Question 34

_____________ of the Constitution provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

A) Article III, Section 1
B) Article III, Section 2
C) Article III, Section 3
D) None of the above

Question 35

The Fifth Amendment protects people against arbitrary use of __________, the power of government to take private property for public use.

A) sovereign immunity
B) the writ of attachment
C) fee simple
D) eminent domain

Question 36

The ratification of the __________ Amendment in ____ provided an opportunity for the Supreme Court to reconsider the relationship between the Bill of Rights and state and local governments.

A) 11th; 1798
B) 12th; 1804
C) 14th; 1868
D) 16th; 1913

Question 37

Although formally granted the right to vote by the Fifteenth Amendment, many Black Americans were still effectively disenfranchised by practices such as __________.

A) literacy tests
B) white primaries
C) poll taxes
D) all of the above

Question 38

Reference to unenumerated rights is found in the _______ Amendment.

A) Ninth
B) Tenth
C) Seventh
D) Second

Question 39

In Palko v. Connecticut (1937) the Supreme Court refused to incorporate the _________ Clause of the Fifth Amendment into the Due Process Clause of the Fourteenth Amendment.

A) Due Process
B) Public Use
C) Double Jeopardy
D) Just Compensation

Question 40

The process of selective incorporation of the Bill of Rights into the 14th Amendment began in 1897 in _______.

A) Hurtado v. California
B) Chicago, Burlington and Quincy Railroad v. Chicago
C) The Slaughterhouse Cases
D) Twining v. New Jersey

Question 41

As of April 2010, the provisions of the Bill of Rights that had not been absorbed into the Fourteenth Amendment include the ___________ Amendments.

A) Second and Third
B) Seventh and Fifth Amendment grand jury clause
C) Eighth Amendment prohibitions against "excessive fines" and "excessive bail"
D) all of the above

Question 42

___________ enables a court to review a custodial situation and order the release of an individual who is found to have been illegally incarcerated.

A) Writ of Mandamus
B) Bills of Attainder
C) Habeas corpus
D) Ex Post Facto laws

Question 43

The Privileges and Immunities Clause of ____________, provides: "The Citizens of each State shall be entitled to all privileges and Immunities of Citizens in the several States."

A) Article IV, Section 1
B) Article IV, Section 2
C) Article IV, Section 3
D) Article IV, Section 4

Question 44

In _____________, the Supreme Court said that the Seventh Amendment does not provide the right to a jury trial where Congress "has created a 'private' right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary."

A) Colgrove v. Battin (1973)
B) Curtis v. Loether (1974)
C) Stack v. Boyle (1951)
D) Thomas v. Union Carbide (1985)

Question 45

In ____________, the Supreme Court ruled that the Privileges or Immunities Clause did not prohibit a state from denying a woman a license to practice law.

A) Twining v. New Jersey (1908)
B) Minor v. Happersett (1875)
C) Bradwell v. Illinois (1873)
D) none of the above

Question 46

In _______________, the Supreme Court under Chief Justice Warren expanded the scope of Fourth Amendment protection to include wiretapping, an important tool of modern law enforcement.

A) Griswold v. Connecticut (1965)
B) Katz v. United States (1967)
C) Gideon v. Wainwright (1963)
D) none of the above

Question 47

The Supreme Court decided in ______________, that the Second Amendment protects a personal right to keep and bear arms.

A) Lewis v. United States (1980)
B) District of Columbia v. Heller (2008)
C) United States v. Miller (1939)
D) United States v. Cruikshank (1875)

Question 48

The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments focus on the ____________, which is arguably the most essential right in a democracy.

A) right to run for elected office
B) right to trial by jury
C) right to vote
D) right to bear arms

Question 49

The ______ Amendment was included in the Bill of Rights as a solution to a problem raised by James Madison - namely, that the specification of particular liberties might suggest that individuals possessed only those specified.

A) Seventh
B) Eighth
C) Ninth
D) Tenth

Question 50

In ________________, the Supreme Court upheld the treason conviction of a German-American who sheltered one of the Nazi saboteurs.

A) Haupt v. United States (1947)
B) Cramer v. United States (1945)
C) Ex Parte Bollman (1807)
D) none of the above

Question 51

The Supreme Court has adopted the doctrine of _____________ as a method of deciding whether certain provisions of the Bill of Rights are applicable to the States.

A) total incorporation
B) selective incorporation
C) incorporation plus
D) none of the above

Question 52

In ________________, the Court invalidated a law that prohibited members of the Communist Party from serving as officers in trade unions, saying that Congress had inflicted punishment on "easily ascertainable members of a group."

A) United States v. Brown (1965)
B) American Communications Association v. Douds (1950)
C) United States v. Lovett (1946)
D) Nixon v. Administrator of General Services (1977)

Question 53

When a law or policy impinges on a right explicitly protected by the Constitution, such as the right to vote, it is subjected to ________ judicial scrutiny by the Supreme Court, also known as the compelling governmental interest test.

A) minimal
B) intermediate
C) strict
D) none of the above

Question 54

The narrow view of the Equal Protection Clause adopted in Plessy v. Ferguson was repudiated by the Supreme Court in _______________, where the Court invalidated compulsory racial segregation in public schools, and in a series of subsequent decisions in which the Court struck down other types of Jim Crow laws.

A) Brown v. Board of Education (1954)
B) Everson v. Board of Education (1947)
C) The Civil Rights Cases (1883)
D) Shelley v. Kraemer (1948)

Question 55

In _____________, a case involving the prosecution of an organized crime figure, the Supreme Court said that the Eighth Amendment does not require that defendants be released on bail, only that, if the court grants bail, it must not be "excessive."

A) Trop v. Dulles (1958)
B) Stack v. Boyle (1951)
C) United States v. Salerno (1987)
D) none of the above

Question 56

The ________ Amendment protects freedom of speech and freedom of the press, often referred to jointly as freedom of expression.

A) First
B) Second
C) Third
D) Fourth

Question 57

In Jones v. Alfred H. Mayer Company (1968), the Supreme Court invoked the ______________ Amendment in a decision upholding a provision of the Civil Rights Act of 1866.

A) Thirteenth
B) Fourteenth
C) Fifteenth
D) Sixteenth