Question 1

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

Accepted Answer

Substantive due process is a principle in constitutional law that protects certain fundamental rights from government interference, even if the laws infringing on those rights are enacted through a proper procedural mechanism. It is distinct from procedural due process, which focuses on the fairness and correctness of the procedures used by the government to enforce laws and take away life, liberty, or property.

Procedural due process is concerned with the "how" of the law. It requires the government to follow fair procedures before depriving a person of life, liberty, or property. This includes the right to be notified of legal proceedings, the right to a fair hearing, the right to counsel, and the right to a neutral judge, among other procedural safeguards.

Substantive due process, on the other hand, is concerned with the "what" of the law. It looks at the essence or content of a law to determine whether it violates fundamental rights that are deemed to be protected by the Due Process Clause of the Constitution, even if the law is applied fairly and with proper procedure. These rights are not always explicitly mentioned in the Constitution but are considered to be so fundamental that the government must have a compelling or very strong reason to regulate or restrict them.

For example, the U.S. Supreme Court has found that substantive due process protects rights such as the right to privacy, the right to marry, the right to procreate, the right to custody of one's children, and the right to bodily integrity. These rights are not explicitly enumerated in the Constitution but have been recognized by the courts as essential to the concept of ordered liberty.

In summary, substantive due process protects fundamental rights from unjust laws, while procedural due process ensures fair treatment in the enforcement of laws. Both are essential components of the legal protections afforded to individuals under the U.S. Constitution.

Question 2

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

Accepted Answer

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?

Accepted Answer

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."

Accepted Answer

The quote in question refers to the Declaration of Independence, which was largely influenced by the ideas of John Locke. Locke's philosophy emphasized natural rights, including the rights to life, liberty, and property (which was later changed to the pursuit of happiness). Therefore, the best choice for paraphrasing this quote would be John Locke (Choice C).

Question 5

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

Accepted Answer

A bill of attainder is a legislative act that declares a person or group of persons guilty of a crime and imposes punishment without a trial in a court of law. This violates the Constitution's prohibition against ex post facto laws and due process protection. The other choices - corpus delecti and writ of prohibition - do not fit the definition of a legislative act imposing punishment without a trial.

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 ________________."

Accepted Answer

The correct answer is C, "Aid and Comfort." The Constitution defines treason as either making war against the United States or adhering to their enemies by giving them aid and comfort. This includes providing resources, intelligence, or any kind of support to an enemy of the United States.

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."

Accepted Answer

The correct answer is "Confession in open Court." The Constitution requires either the testimony of two witnesses to the same overt act or a confession in open court for a conviction of treason.

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?

Accepted Answer

The answer of Can you think of a situation in...

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.

Accepted Answer

The Contract Clause historically was a significant source of litigation as it was used to challenge state laws that interfered with private contracts. However, in modern times, its application has been limited, and it is seldom used to impose significant restrictions on state economic regulation.

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?

Accepted Answer

The answer of Would the Supreme Court uphold an act...

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?

Accepted Answer

The answer of Would the Privileges and Immunities Clause of...

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.

Accepted Answer

The answer of Consider the controversial issue of whether "enemy...

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.

Accepted Answer

The correct term for the writ that enables a court to review a custodial situation and potentially order the release of someone illegally held is "habeas corpus," which is not listed among the options provided.

Question 14

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

Accepted Answer

The answer of Which is more valued in our society,...

Question 15

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

Accepted Answer

The answer of Consider the various Supreme Court perspectives on...

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?

Accepted Answer

The answer of To what extent is constitutional freedom limited...

Question 17

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

Accepted Answer

The theory of natural rights holds that certain rights, such as the right to life, liberty, and property, are inherent in every individual and cannot be taken away by the government. This concept heavily influenced the Framers of the Constitution, who sought to protect these rights through the Bill of Rights and other provisions in the Constitution. Divine right refers to the belief that monarchs derive their authority from God, while inherent powers are those powers that belong to a government simply by virtue of its existence as a sovereign entity. Primogeniture refers to the practice of passing down all of one's land or property to the eldest son.

Question 18

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

Accepted Answer

The answer of Why should the federal courts be authorized...

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.

Accepted Answer

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

Question 20

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

Accepted Answer

The answer of Under what circumstances might the failure of...

Quiz 1: Constitutional Sources of Civil Rights and Liberties