MBE IMMERSION CONSTITUTIONAL LAW Copyright © 2020 by BARBRI, Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission in writing from the publisher. Printed in the United States of America. Constitutional Law Questions 1. Constitutional Law Questions Question 1 Question 2 The owner of a chain of natural food stores located within a particular state contracted with landowners and construction firms in a neighboring state in preparation for the opening of several new stores in the neighboring state. The chain’s products are stored and sold in bulk within the stores. Consumers remove the amount of product they want from bins within the stores, place the product in plastic bags, and then present their bags at a checkout counter. Statutes in the neighboring state in which the chain owner would like to open its new stores prohibit the sale of food in bulk due to the health hazards associated with bulk storage and contamination from consumer access to food sold from bins. The state has prosecuted other grocers’ violations of the statute in the past. As permitted by state law, a large city in the state adopted an ordinance legalizing slot machines in shopping malls within the city. Several prominent city residents were upset by the new ordinance because gambling violates one of the main tenets of their religion. Seeking relief, the citizens contacted their representative in Congress and asked the representative to sponsor a bill making it illegal to place gambling machines in shopping malls throughout the country. The representative sponsored such a bill. Congress made a factual finding that the activity regulated has a substantial economic effect on interstate commerce and passed the statute. The chain store owner seeks an injunction against state officials in the federal district court with jurisdiction over the matter. The state officials move to dismiss the suit on the ground that the corporation lacked standing to sue. What would be the probable outcome? (A) The suit would be dismissed, because the owner has suffered no injury. (B) The suit would be dismissed, because the challenged state legislation has no effect on civil liberties. (C) The federal court would hear the suit, because a federal question—interstate commerce—is involved. (D) The federal court would hear the suit, because the owner has undertaken substantial steps to open outlets in the state. If the statute banning gambling machines in shopping malls is challenged on constitutional grounds by a proper plaintiff in federal court, would the court likely uphold the statute? (A) No, because it was based on the citizens’ religious tenets and so violates the First Amendment Establishment Clause. (B) No, because the statute does not regulate the channels or instrumentalities of interstate commerce. (C) Yes, because Congress has made a factual finding that the activity regulated has a substantial economic effect on interstate commerce. (D) Yes, because there is a conceivable rational basis for concluding that the activity regulated, in aggregate, substantially affects interstate commerce. GO ON TO THE NEXT PAGE 2. Constitutional Law Questions Question 3 Question 4 Several years ago a number of employees of the state transportation department formed a workers’ organization, a voluntary association incorporated under the laws of the state. The organization has grown in size over the years and has become very powerful politically. Nearly 85% of all state highway maintenance workers are members of the organization, which is supported entirely by the dues of its members. Membership is not required as a condition of employment or advancement in the state transportation department. After a vote of its entire membership on the question, a member was expelled from the organization solely because she is an active, knowing member of a group that seeks to propagate the concept of white racial supremacy. The expelled member brings suit in an appropriate court seeking reinstatement of her membership. The suit alleges that her expulsion violates rights guaranteed to her by the First and Fourteenth Amendments. A Hispanic woman was a citizen of a foreign country but had lived in the United States for 10 years. She had properly acquired resident alien status and regularly complied with all regulations pertaining to resident aliens, such as annual registration at the local post office. Several of her friends had been called for jury service and she thought it would be interesting to serve on a jury. However, after extensive research she discovered that no Hispanic female alien had ever served on a jury in the county where she lived; in fact, no person of that class had ever been in a venire panel. Which of the following is the strongest constitutional defense that the organization may assert to this suit? (A) The First and Fourteenth Amendments do not apply to the actions of the organization. (B) Active, knowing membership in groups with overtly racist objectives is not protected by the First and Fourteenth Amendments. May she compel the county officials to include her and other persons of her class in venire panels through a lawsuit in federal district court? (A) Yes, because there is a consistent pattern of discrimination against persons of her class. (B) Yes, because alienage is a suspect category. (C) No, because certain privileges, such as jury service, may be constitutionally denied to aliens. (D) No, because she lacks standing, in that she is not involved in a case or controversy where the lack of jurors in her class might prejudice her right to a fair trial. (C) The organization could reasonably believe that it has a compelling interest in eliminating from its membership active, knowing members of groups with overtly racist objectives. (D) The expulsion of the member took place only after a vote of the organization’s entire membership. GO ON TO THE NEXT PAGE Constitutional Law Questions 3. Question 5 A state prohibited speechmaking, noisy picketing, or other public gatherings within 100 feet of the state legislative building when the legislature was in session to vote or debate on any legislation. The statute did permit silent picketing or silent vigils at any time, as long as the pickets did not interfere with pedestrians or traffic. The nearest place to the building where speeches could be made during a session was a large public park directly opposite the building. During a controversial debate on a proposed bill to reinstate the state’s death penalty, supporters of the bill gathered for a rally and speeches. One of the leaders of the group was giving a speech when he was informed that the legislature had decided to send the bill back to committee and that there would be no vote on the bill until the next legislative session. He told the crowd that they should all go across the street and let the legislators hear the voices of the people. When he led the chanting crowd to the front of the building, the state police dispersed them and arrested the leader, charging him with violating the statute. Is the state statute constitutional? (A) Yes, both on its face and as applied to the leader. (B) Yes on its face, but not as applied to the leader. (C) No on its face, because a state’s citizens have a right to take their complaints to their state legislature. (D) No on its face, because it permits silent picketing while prohibiting other picketing. STOP MBE IMMERSION CONSTITUTIONAL LAW EXPLANATORY ANSWERS Constitutional Law Answers 7. Constitutional Law Answers Answer to Question 1 (D) The owner has standing to sue because it can demonstrate a concrete stake in the outcome of the controversy and an impairment of its rights by the state statute. Federal courts will not consider a constitutional challenge to government action unless the person challenging the action has standing to raise the constitutional issue. Under the Supreme Court test, the person must have an injury in fact—both a particularized and a concrete injury that will be remedied by a decision in his or her favor. Here, the store owner has taken substantial steps to open outlets in the state by contracting with landowners and construction firms in that state, but cannot begin to operate these outlets without violating the state statutes; obtaining the injunction against enforcement will eliminate the problem. The court will therefore hear the suit. (A) is incorrect even though the store owner has not yet been prosecuted for violating the statute. A person challenging the constitutionality of a statute does not need to violate it and await prosecution as the sole means of seeking relief. Where there exists a clear threat of prosecution if the person fails to comply with the statute (such as previous prosecutions of others), injury in fact is established. (B) is incorrect because threatened economic injury as well as threatened injury to civil liberties will create standing. (C) is incorrect. Although it is true that a federal question is involved, it is not enough that a federal court has jurisdiction over the subject matter of the question. Federal courts are authorized to hear cases and controversies, and the Supreme Court has interpreted this language to require the plaintiff to have standing—an injury in fact; a concrete stake in the outcome. The motion to dismiss here was made on standing grounds. Choice (D) reflects the standing challenge, while choice (C) does not. If the court accepts the state official’s claim that the store owner lacked standing to sue, it would dismiss the suit regardless of the federal issues involved. Answer to Question 2 (D) The court would likely uphold the statute against a constitutional challenge because there is a conceivable rational basis for concluding that gambling, in aggregate, substantially affects interstate commerce. Under the Commerce Clause, Congress may regulate: (i) the channels of interstate commerce; (ii) the instrumentalities of interstate commerce, as well as persons and things in interstate commerce; or (iii) activities that have a substantial effect on interstate commerce. When Congress attempts to regulate intrastate activities under the third of the preceding prongs, the Court will uphold the regulation if it involves economic or commercial activity as long as there is a conceivable basis for concluding that the activity in aggregate substantially affects interstate commerce. Here, the statute involves commercial activities—placing gambling machines in shopping malls. And it is conceivable that gambling machines in shopping malls, in aggregate, could substantially affect interstate commerce. Therefore, the statute would be upheld. (A) is incorrect because the citizens’ motivation for requesting the law would not taint it. A regulation will be upheld under the Establishment Clause if (i) it has a secular purpose, (ii) its primary effect neither advances nor inhibits religion, and (iii) it does not produce excessive government entanglements with religion. Banning gambling machines from shopping malls has a secular purpose (e.g., preventing the ills associated with gambling), its primary effect neither advances nor inhibits religion, and it does not produce any religious entanglements. (B) is incorrect because, under the Commerce Clause, Congress also has the power to regulate activities that have a substantial effect on interstate commerce. (C) is incorrect because it states the test applicable to situations where Congress seeks to regulate noneconomic or noncommercial intrastate activity under the Commerce Clause (e.g., possession of a gun in a school zone); as noted above, gambling in shopping malls is an economic or commercial activity. 8. Constitutional Law Answers Answer to Question 3 (A) The best defense is that First Amendment rights do not apply to the organization. First Amendment rights are made enforceable against a state through the Fourteenth Amendment. However, the amendments do not prevent private individuals or organizations from encroaching upon individual civil liberties. Because there is nothing in the facts to indicate significant state involvement (state action) with the organization (granting corporate status does not suffice), the amendments do not apply to the organization’s actions in expelling one of its members. (B) is incorrect because the First Amendment protects the freedom of association. There are limits on this freedom (e.g., a person can be punished for membership in a group if (i) the group calls people to illegal action—as opposed to merely advocating what people ought to do; (ii) the person knows of the group’s illegal advocacy, and (iii) the person has the specific intent to accomplish the illegal aims). Therefore, merely belonging to a group with racist objectives may be protected by the First and Fourteenth Amendments. The right to associate with other persons for expressive or political activity, while not absolute, is within the scope of freedom of speech rights. (C) and (D) would have no bearing on the alleged violation of the member’s rights. While the government may infringe on freedom of association rights by showing a compelling interest, that test is not applicable to action taken by a private organization. Answer to Question 4 (C) The woman would not prevail in this lawsuit because the right/duty to serve on a jury may be denied to aliens. The Equal Protection Clause prohibits unreasonable discrimination by state governments and their subsidiaries. Whether discrimination is reasonable depends on the basis of the discrimination and the right involved. If the discrimination is based on a suspect classification or involves a fundamental right, it will not be upheld unless the government can prove that the discriminatory action is necessary to achieve a compelling interest (i.e., the strict scrutiny test). In most other cases, the discriminatory action will be upheld unless the challenger can prove that the action is not rationally related to a legitimate state interest (i.e., the rational basis test). State and local classifications based on alienage usually are tested under the strict scrutiny test and are struck down. However, there is an exception for laws discriminating against aliens wishing to participate in the self-government process. The rational basis test is used in those cases. Serving on a jury is part of the self-governing process, and it is rational to limit jurors to citizens to ensure familiarity with our court system, a sufficient stake in our system of justice, and the like. (A) is incorrect because the discrimination is constitutional as long as it is rationally related to a legitimate government purpose. As explained above, restricting jury service to citizens would be regarded as such a purpose. (B) is incorrect because, as explained above, although alienage is generally a suspect classification, only a rational basis test is used for discrimination related to the self-governing process. (D) is incorrect because she could claim an injury based on the fact that she was discriminated against. Those who claim a violation of equal protection of the law in that they have been discriminated against have standing to sue. Answer to Question 5 (A) The statute likely will be held constitutional on its face and as applied. The First Amendment protects the freedom of speech. In most cases, regulation of the content of speech will be found to be unconstitutional unless the government can prove that the content regulation is necessary to acheive a compelling government interest. However, regulation of the conduct associated with speech—the time, place, or manner of the speech activity—is tested under different standards. In a public forum (i.e., a place traditionally open to speech activities, such as a park) such regulation Constitutional Law Answers 9. will be upheld if it is content neutral, it is narrowly tailored to achieve an important government interest, and it leaves open alternative channels of communication. The regulation here prohibits speechmaking and noisy picketing within 100 feet of the legislative building while the legislature is in session. It does not differentiate based on content, it appears to be narrowly tailored to allowing the legislature to meet in a quiet setting so it can get work done (since the statute applies only when the legislature is in session and extends only 100 feet), and the statute leaves open other channels of communication, such as silent pickets and holding rallies across the street. Therefore the statute is valid on its face. And since the leader of the group violated the statute, it was constitutional to apply it to him. There is no reason why he could not have remained in the park and spoken as noisily as he wanted to. Therefore, (B) is incorrect. (C) is wrong because there are many methods to direct complaints to a legislature without speechmaking right in front of the building. (D) is incorrect because silent versus noisy is not a content-based restriction. It is reasonable to allow silent picketing while prohibiting noisy picketing, since the goal here is to allow the legislature to meet without excessive noise disturbing them.
