CONSTITUTIONAL LAW FINAL EXAM FALL 2007
For each part of each of the numbered questions to follow, mark each
answer either true (T) or false (F). All, some, or none of the options
may be true. There is not one true answer for each question.
We discussed Marbury v. Madison (1803) the “classic”
concerned the claim by Marbury that the Secretary of
President Jefferson illegally refused to deliver the
Marbury as a justice of the peace under federal law.
discussion of that case:
1. The decision is important to
because it established that the
to the actions of the Secretary
unconstitutional and that it is
determination.
decision that
State under
papers recognizing
Based on our
our understanding of constitutional law
exercises of executive power incident
of State and the President were
the role of the courts to make that
2. The decision is important to our understanding of constitutional law
because it established that the exercise of legislative power by
Congress in authorizing the Supreme Court to take jurisdiction over
Marbury’s case was unconstitutional and that it is the role of the
courts to make that determination.
3. The decision is important because it demonstrates that the Supreme
Court can look at the general structure of the Constitution and its
implicit purposes as bases for defining constitutional limits on the
government.
4. The decision is limited in its relevance to subsequent decisions
because, ultimately, the Supreme Court held that it had no jurisdiction
over Marbury’s case.
(only 2 and 3 are true)
In Gibbon v. Ogden (1824) the Supreme Court invalidating laws in New
Jersey and New York which attempted to give exclusive rights to one
licensee to operate motorized boats in the waterways of each state.
Which of the following are true?
5. The Supreme Court held that the states had no constitutional
authority to regulate waterways that could be used for interstate
commerce.
6. The Supreme Court held that the states had no constitutional
authority to impose limits on the number of competitors who could
engage in activities that could include interstate commerce.
7. The Supreme Court held that the states had no constitutional
authority to impose limits on their use of state waterways if there was
a valid federal statute that permitted the activity.
8. The Supreme Court held that if there had not been a federal statute
allowing the use of the waterways, the New York and New Jersey laws
would have been proper exercise of the states’ powers.
(only 7 is true)
We read a series of cases concerning the “dormant commerce clause,”
examining state laws that are alleged to interfere with the unexercised
authority of the Congress to regulate interstate commerce (examples
that we discussed in class included South Carolina v. Barnwell (1938),
Southern Pacific v. Arizona (1945), Henneford v. Silas Mason (1937),
Dean Milk v. Madison (1951)). Which of the following are true?
9. In some cases where the court holds that a state law has only an
incidental effect on interstate commerce, that state law is
constitutional even if it can be shown the impact of the law is greater
on out-of-state commerce than on in-state commerce.
10. In some cases where the courts find that the purpose of a state law
is to discriminate against out-of-state commerce, that law will be held
unconstitutional even if the impact of the state law is small or
incidental.
11. State laws that have a substantial discriminatory effect on out-ofstate commerce may be held to be constitutional if the state’s purpose
is sufficiently important and the state law is narrowly tailored to
achieve that purpose.
12. State laws that provide subsidies commercial activities but
discriminate against out-of-state commercial actors are
unconstitutional if there is a substantial burden on interstate
commerce or if the state’s purpose is to discriminate against
interstate commerce.
(9, 10, and 11 are true)
We had an extended discussion of the interstate commerce powers as
interpreted by the Supreme Court in the eras immediately following and
immediately preceding the changes on the Court in the mid-1930s. Which
of the following reflect that discussion?
13. Prior to the mid-1930s, the Supreme Court had held that the
Congress’ commerce powers could not be used to regulate intrastate
activities.
14. Prior to the mid-1930s, the Supreme Court had held that the
Congress’ commerce powers could not be used to regulate production,
manufacturing and other intrastate activities to the extent that they
were already regulated by the state governments.
15. Prior to the mid-1930s, the Supreme Court had held that the
Congress’ commerce powers could not be used to regulate production,
manufacturing and other intrastate activities that could be regulated,
if at all, only by the state governments.
16. After the mid-1930s, the Supreme Court narrowed the scope of
judicial review of federal legislation that was enacted under Congress’
interstate commerce powers.
(15 and 16 are true)
The following statements relate to our discussion of the spending
powers. Which are true?
17. Under the spending powers, Congress can spend federal revenues for
virtually anything that has some national significance.
18. Under the spending powers, Congress can offer federal revenues to
the states, and require, as a condition on receipt of the money, that
the recipient state enact legislation.
19. Under the spending powers, Congress can offer federal revenues to
the states, and require, as a condition of receipt of the money, that
the state enact legislation, but only so long as the required
legislation has a rational connection to the program or activity that
is funded.
20. Under the spending powers, Congress can offer federal revenues to
the states, and require, as a condition of receipt of the money, that
the state enact legislation, unless the amount of money is
disproportionate to the cost of the required state legislation.
(19 and 20 are false)
The following statements relate to our discussion of Heart of Atlanta
v. United States, Katzenbach v. Morgan (Ollie’s BBQ), United States v.
Lopez, Morrison v. United States, and Gonzales v. Raich, the so-called
“modern interstate commerce cases.” Which are true?
21. In Morgan and Heart of Atlanta the Court upheld portions of the
Civil Rights Act of 1964, holding that Congress needs only a rational
basis for concluding that race discrimination by motels and restaurants
affects interstate commerce and that the means selected to eliminate
that evil need only be reasonable and appropriate.
22. In United States v. Lopez, the Court rejected the “rationality
standard” enunciated in Morgan and Heart of Atlanta and held that any
finding of an effect on interstate commerce must be supported by
substantial evidence.
23. In United States v. Lopez, the Court rejected the “aggregation
principle” first articulated in Wickard v. Filburn, at least as applied
to non-economic activities subject to congressional legislation enacted
under the interstate commerce powers.
24. In Gonzales v. Raich, the Court upheld that “aggregation principle”
first articulated in Wickard v. Filburn, at least as applied to
economic activities subject to congressional legislation enacted under
the interstate commerce powers.
(21, 23, and 24 are true)
We read four cases considering “Tenth Amendment’ restrictions on
otherwise valid federal laws: National League of Cities v. Usery, San
Antonio v. Garcia, New York v. United States, and Printz v. United
States. From our discussions, which of the following are true?
25. Congress under its interstate commerce powers can enact legislation
that regulates “states as states,” so long as that legislation is
applicable to both private and public entities involved in or affecting
interstate commerce.
26. Congress under its interstate commerce powers cannot enact
legislation that directly (and exclusively) regulates “states as
states.”
27. Congress under its interstate commerce powers generally cannot
enact legislation that directly (and exclusively) regulates “states as
states” unless it can show a compelling federal or national purpose
will be narrowly served by such legislation.
28. Congress under its interstate commerce powers can give the states
the choice of enacting state regulatory laws or submitting to federal
regulation of those same activities.
(only 27 is false)
The following statements relate to the Youngstown Steel, Curtis Wright
v. United States, Pink v. United States, Carter v. Goldwater, and Dames
& Moore v. Regan, the various cases discussing the constitutionality of
presidential action in matters relating to foreign affairs. Which of
the following reflect our discussion of those cases?
29. The Supreme Court has consistently held that the President’s powers
in matters relating to foreign affairs is broader than the President’s
powers over domestic matters.
30. The Supreme Court has consistently held that the President’s powers
in matters relating to foreign affairs is derived from the nature of
national sovereignty and is not define or governed by the U.S.
Constitution.
31. The Supreme Court has consistently held that the legitimacy of the
President’s powers in matters relating to foreign affairs is a
“political question” that cannot be adjudicated by the federal courts.
32. The Supreme Court has consistently held that the legitimacy of the
President’s powers is at its highest when the President is acting
without any guidance from the legislative branch.
(31 and 32 are false.)
The following statements relate to our discussion of Nixon v. United
States, the case in which President Nixon was asked to give evidence in
a criminal trial, Nixon v. Fitzgerald, in which President Nixon was
sued by a fired employee, and Clinton v. Jones, in which President
Clinton was sued for actions prior to his presidency. Which are true?
33. The Supreme Court has recognized that the President has a
“presumptive privilege” to refuse to comply with judicial requests for
documents.
34. The Supreme Court has recognized that the President may have an
“absolute privilege” to refuse to comply with judicial requests for
documents if the privilege is based on a need to protect matters
concerning the military, foreign affairs, or the need for national
security.
35. The Supreme Court has held that the President can be sued in civil
court by a private citizen for damages arising from matters unrelated
to the President’s official duties.
36. The Supreme Court has held that the President cannot be sued in
civil court by a private citizen for damages arising from matters that
are within the President’s official duties.
(all true)
The following statements relate to our discussion of Scott v. Sanford.
Which are true?
37. The Supreme Court held that Scott was not a citizen of the United
States.
38. The Supreme Court held that Congress could make Scott a citizen of
the United States, but only by treating Scott as an alien subject to
naturalization.
39. The Supreme Court held that Scott could not be freed from slavery
even when he was in a federally controlled territory because that would
violate the due process rights of his owner.
40. The Supreme Court held that Scott could not be freed from slavery
even when he was in a state that attempted to abolish slavery because
that would violate the due process rights of his owner.
(38 and 40 are false)
The following relate to The Slaughterhouse Cases. Which are true?
41. According to the majority opinion, the Fourteenth Amendment
protects the privileges and immunities of citizens of the United
States, but not the privileges and immunities of citizens of the
individual states.
42. According to the majority opinion, the primary purpose of the
various provisions of the Fourteenth Amendment was to protect recently
free slaves from actions by the states.
43. According to the majority opinion, the due process and
Reconstruction Amendments are inapplicable to cases that do not involve
slavery or discrimination based on race.
44. According to the majority opinion, Congress can enforce the
provisions of the Reconstruction Amendments by remedial legislation,
but the courts cannot do so.
(41 and 42
are true)
In Lochner v. New York, the Supreme Court held that the state could not
mandate the maximum number of hours that an individual could work in a
bakery. In doing so, the Court:
45. held that the state police powers did not extend to this type of
economic activity.
46. held that the state could only impose these restrictions if it
could show that it had some basis for believing that some third party
would be put at risk by workers who exceeded the maximum number of
hours.
47. held that the state could only impose these restrictions if it
could show that the workers were at a disadvantage in bargaining with
their employer.
48. held that the due process clause of the Fourteenth Amendment barred
any law attempting to regulate labor conditions.
(all four are false)
The following statements relate to Yick Wo v. Hopkins, the 1886
decision of the Supreme Court which invalidated the denial of business
permits to applicants who were Chinese nationals living in the United
States.
49. The Supreme Court held that a law that was neutral on its face may
still violate the Equal Protection Clause if it is administered in a
way that discriminates on the basis of race.
50. The Supreme Court found that even though the law was neutral on its
face, the purpose of enacting the legislative scheme was to
discriminate on the basis of race.
51. The Supreme Court held that all of the rights created by the
Fourteenth Amendment extend protections to all people in the United
States notwithstanding their status as citizens.
52. The Supreme Court held that the same Equal Protection requirements
that applied to state and local officials would be applied to officials
enforcing a federal law.
(only 49 is true)
In Bolling v. Sharp, and Brown v. Board of Education, the Supreme Court
declared that racial segregation in public schools unconstitutional. In
doing so:
53. The Court held that “separate but equal” public services were
inherently unequal.
54. The Court held that “separate but equal” public schools in the
District of Columbia violated the Due Process Clause of the Fifth
Amendment.
55. The Court held that “separate but equal” public schools in any of
the states violated the Equal Protection Clause of the Fourteenth
Amendment.
56. The Court held that “separate but equal” private schools in any of
the states violated the Equal Protection Clause of the Fourteenth
Amendment.
(54 and 55 are correct.)
In Washington v. Davis (1976) the Supreme Court declined to apply
“close scrutiny” to the hiring practices of the Washington D.C. police
department, even though those practices resulted in the denial of the
applications of a high percentage of minorities. They did so because:
57. As of the mid-1970s, the Court was applying “mid-level scrutiny” in
Equal Protection cases that involved racial classifications.
58. The Court at that time was applying a “rationality” standard in
Equal Protection cases that did not involve intentional racial
classifications.
59. The Court held that at the time the hiring practices were adopted,
the department was unaware of the likelihood that the result would be
the denial of minority applicants.
60. The Court held that the Fifth Amendment guarantees of Equal
Protection applicable to Washington, D.C., were different than those of
the Fourteenth Amendment applicable to the states.
(only 58 is true)
In Adarand v Pena, the Court reviewed the federal program that gave
“socially and economically disadvantaged” subcontractors preferential
treatment in federal highway construction programs.
61. The Court held that the federal program violated the principles of
Equal Protection because there was no compelling governmental interest
in favoring the “socially and economically disadvantaged.”
62. The Court held that the federal program violated the principles of
Equal Protection because the government had a “compelling reason” for
the preferential treatment, but it was not “narrowly tailored” to
achieve that purpose.
63. The Court held that the federal program violated the principles of
Equal Protection because it found that the preferential treatment of
the “socially and economically disadvantaged” was a subtrefuge for an
intentional racial classification.
64. The Court held that the federal program violated the principles of
Equal Protection because the only acceptable justification for a
preferential treatment of racial minorities is doing so as a remedy for
past racial discrimination.
(all of the above are false)
In Parents of Students in Community Schools v. Seattle School District
(2006):
65. The Court held that the Seattle system of allowing inter-school
transfers was essentially a form of racial balancing and that racial
balancing is not a permissible government interest.
66. The Court held that the Seattle system of allowing inter-school
transfers was a permissible form of racial balancing, but there were
other, narrower ways to achieve that same purpose.
67. The Court held that race could not be a factor in evaluating who
may transfer from one school to another unless it was necessary to
remedy past discrimination.
68. The Court held overruled its earlier decision in Grutter v.
Bollinger (2003) which had allowed the University of Michigan law
school to promote diversity in its admissions of students.
(only 65 is true)
In several cases we read, the Court viewed state and federal laws that
discriminate against aliens in a somewhat odd fashion. Assuming that
the cases that we read are still good law, those cases:
69. recognize that the federal government has more discretion to
discriminate against aliens than the state governments.
70. recognize that some state laws that discriminate against aliens
have to survive close scrutiny, while others do so.
71. recognize that some state laws that discriminate against aliens
need only to survive “mid-level” scrutiny.
72. recognize that federal laws that discriminate against aliens are
treated differently for purposes of equal protection analysis, because
the principles of equal protection do not apply to federal laws.
(69 and 70 are true)
Over the course of the last forty years, the Supreme Court has
struggled to determine who to evaluate laws that discriminate on the
basis of gender. In its most recent decision, the Court determined that
the State of Virginia could not maintain an all-male undergraduate
program at the Virginia Military Institute. In that decision, the Court
held:
73. that the courts must apply close scrutiny to all state laws that
intentionally discriminate on the basis of gender.
74. that the courts must apply close scrutiny to all state laws that
intentionally discriminate against women, but state laws that
intentionally discriminate against men are subject to “mid-level
scrutiny.”
75. that the courts must apply “mid-level scrutiny” to all state laws
that intentionally discriminate against men or women.
76. that all state laws that intentionally discriminate on the basis of
gender must have have an “exceedingly persuasive justification.”
(75 and 76 are true)
In Duncan v. Louisiana, the Supreme Court held that Duncan could not be
convicted of a serious crime without a jury trial. In doing so, the
Court reasoned:
77. that this type of state criminal prosecution has to provide for a
jury trial because it is required by the Sixth Amendment.
78. that this type of state criminal prosecution has to provide for a
jury trial because it is a fundamental right protected by the
Fourteenth Amendment.
79. that in interpreting the requirements of procedural due process as
applied to state criminal prosecutions, the Fourteenth Amendment
requires of the states all of the procedural protections required of
the federal government by the Bill of Rights.
80. that any deviation between the procedures followed by the states
and those followed by the federal government in criminal prosecutions
would be a violation of the Equal Protection Clause of the Fourteenth
Amendment.
(only 78 is correct)
We read what could be described as “bookend” cases: Dandridge v.
Williams and Shapiro v. Thompson, considering the state’s discretion to
discriminate in the distribution of welfare benefits. In these cases,
the Supreme Court held:
81. that a state's interest in discouraging people from becoming state
residents was an impermissible reason for imposing a one-year
durational residency requirement on welfare eligibility.
82. that a state's interest in preventing fraud was an insufficient
reason for imposing a one-year durational residency requirement on
welfare eligibility.
83. that a state's interest in encouraging welfare recipients to find
private employment was a sufficient reason for imposing maximum limits
on the level of benefits to large families.
84. that a state's interest in discouraging women from having more
children was an impermissible reason for imposing maximum limits on the
level of benefits to large families.
(only 84 is false)
In Griswold v. Connecticut, the Supreme Court held that the State of
Connecticut could not prohibit the use of contraceptives. In doing so:
85. some members of the Court's majority found that there is a
fundamental interest in privacy that could be found in the "penumbras"
of the rights set out in the Bill of Rights.
86. some members of the Court's majority found that there is a
fundamental interest in privacy that may be among the rights that are
acknowledged but not created by the Ninth Amendment.
87. some members of the Court's majority found that there is a
fundamental interest in privacy that is "implicit in the concept of
ordered liberty."
88. some members of the Court's majority fund that there is a
fundamental interest in privacy found in the "Natural Laws" that the
Court are obligated to protect.
(only 88 is false)
In Planned Parenthood v. Casey:
89. A majority of the Court held that a state may require that a woman
seeking an abortion be given certain information concerning her
decision and must wait 24 hours before finalizing her decision.
90. A majority of the Court held that a state may require that a
married woman seeking an abortion must give notice to her spouse before
that abortion can be performed.
91. A majority of the Court held that a state could not prohibit
abortions prior to the point of viability of the fetus.
92. A majority of the Court held that a state could not prohibit
abortions after the point of viability of the fetus if the postabortion were necessary to protect the health of the woman.
(89, 91, and 92 are are correct)