PAGE TWO, UNIT TWO
b. Equal Justice Under the Law
A Government Designed to Protect Natural Rights:
(1) What did the Framers of the U.S. Constitution mean by
"natural rights"? [90]
(2) When the terms "civil liberties" and "civil rights"
are used interchangeably, what do the two terms mean?
What does each term mean when it is used more narrow-
ly? In what two ways does the Federal Constitution
protect civil rights, or civil liberties? [90]
Rights in the Original Articles of the U.S. Constitution:
(1) What is the HABEAS CORPUS CLAUSE? Where in the U.S.
Constitution can it be found? What does it provide?
[U.S. Constitution, Article I, Section 9, Clause 2]
(2) What is a WRIT OF HABEAS CORPUS? Describe the habeas
corpus process. What protection does the right to a
writ of habeas corpus give the individual? [91]
(3) What are the EX POST FACTO CLAUSES? Where in the
U.S. Constitution can the two EX POST FACTO CLAUSES
be found? What does each provide? Which of these
clauses limits the authority of the national govern-
ment? Which limits the authority of the states?
[U.S. Constitution, Article I, Section 9 (Clause 3) &
Section 10 (Paragraph 1)]
(4) What is an EX POST FACTO LAW? How does the federal
constitutional prohibition of ex post facto laws pro-
tect the liberty of individuals? [91]
(5) What are the ATTAINDER CLAUSES? Where in the Federal
Constitution can the two ATTAINDER CLAUSES be found?
What does each provide? Which of these clauses limits
the authority of the national government? Which lim-
its the authority of the states? [U.S. Constitution,
Article I, Section 9 (Clause 3) & Section 10 (Para-
graph 1)]
(6) What is a BILL OF ATTAINDER? How does the constitu-
tional prohibition of bills of attainder protect the
liberty of individuals? [91]
The Right of American Citizenship:
(1) What does the Fourteenth Amendment have to say about
citizenship? [91] [Also: U.S. Constitution, Four-
teenth Amendment, Section 1]
(2) Under the Fourteenth Amendment, supplemented by feder-
al statutes, how does a person acquire American citi-
zenship by birth? [91]
(3) How does a person acquire American citizenship by
NATURALIZATION? Distinguish between COLLECTIVE NATU-
RALIZATION and INDIVIDUAL NATURALIZATION. Under con-
gressional statutes, what are the requirements that a
person must meet to complete the process of individu-
al naturalization? Describe the process of individu-
al naturalization? [91-92]
(4) How may a person's naturalized citizenship be revoked?
[93]
The Right to Equal Protection of the Laws:
(1) What is the EQUAL PROTECTION CLAUSE? Where in the
U.S. Constitution can it be found? What does the
clause provide? To which level or levels of American
government does the clause apply as a restriction on
political authority (i.e., governmental authority)?
Which clause in the Constitution has been interpreted
to impose a similar restriction on the authority of
the national government? [97] [Also: U.S. Constitu-
tion, Fourteenth Amendment, Section 1]
(2) Does the EQUAL PROTECTION CLAUSE apply to discrimina-
tory actions of private individuals? Explain. How
may private individuals be legally prevented from en-
gaging in actions which discriminate against persons
on the basis of race, ethnicity, national origin, or
gender? [97]
(3) Does the EQUAL PROTECTION CLAUSE prohibit all govern-
mental actions that discriminate among persons--i.e.,
create various classes, or classifications, of people?
Explain. When is a government-established classifica-
tion unreasonable? What three tests does the U.S. Su-
preme Court use to determine the constitutionality of
a government-established classification? [97]
(4) What is the RATIONAL BASIS TEST? Cite and explain an
example of its application by the Supreme Court? [97-
98]
(5) What is the STRICT SCRUTINY TEST? What is a SUSPECT
CLASS? Cite examples. How has the Supreme Court
ruled in cases involving laws that give preference
for public employment based on race? [98]
(6) What is the HEIGHTENED SCRUTINY TEST? What is a
QUASI-SUSPECT CLASS? Cite an example. Under the
Supreme Court's current interpretation of the EQUAL
PROTECTION CLAUSE, how is a case involving alleged
gender discrimination likely to be decided? Explain.
[98]
(7) Suppose a statute or government regulation has or may
have a differential effect, or disparate impact, on
persons of a different race or gender. Does this fact
by itself necessarily mean that the law or regulation
is unreasonably discriminatory and therefore unconsti-
tutional? What answer did the Supreme Court give to
this question in the case of WASHINGTON V. DAVIS
(1976)? In deciding this case and subsequent cases,
what did the Supreme Court maintain was required for
there to be a violation of the EQUAL PROTECTION
CLAUSE? According to the Supreme Court, does the
Fourteenth Amendment guarantee equal results? Ex-
plain. Cite examples of practical application of the
Court's ruling on disparate impact? [98-99]
The Electoral Franchise--The Right to Vote:
(1) What power over elections is granted to Congress by
Article I, Section 4, of the U.S. Constitution? For
what purposes has Congress used this authority? [99]
(2) How does the Fourteenth Amendment limit the authority
of the states to set voting qualifications? The Fif-
teenth Amendment? The Nineteenth Amendment? The
The Twenty-fourth Amendment? The Twenty-sixth Amend-
ment? How do these amendments increase the authority
of Congress to enact voting rights legislation, to
pass federal laws protecting the right to vote? [99]
(3) What is the Voting Rights Act of 1965? What are its
key provisions? [100]
(4) What is a MAJORITY-MINORITY CONGRESSIONAL DISTRICT?
How did such congressional districts become a politi-
cal and legal issue in the early 1990s? How did the
Supreme Court rule on the issue in SHAW V. RENO (1993)
and subsequent cases? [100]
The EQUAL PROTECTION CLAUSE and the Public Schools:
(1) Describe the SEPARATE BUT EQUAL DOCTRINE which the
U.S. Supreme Court endorsed in PLESSY V. FERGUSON
(1896). What was the decision of the Supreme Court
in BROWN V. BOARD OF EDUCATION OF TOPEKA (1954)?
How have federal judges implemented this decision and
subsequent school desegregation decisions of the Su-
preme Court? What action has Congress taken to end
racial discrimination in higher education? [101]
The Right of Access to Housing, Employment, and Public
Accomodations:
(1) How has the COMMERCE CLAUSE in Article I, Section 8,
of the U.S. Constitution been used to prevent discrim-
inatory conduct by private individuals and firms in
the private economic sector providing or offering
housing, employment, or public accomodations? [102-
103]
Rights of Owners and Renters of Private Property:
(1) What are PROPERTY RIGHTS? Historically, how important
in American society has been the close connection be-
tween liberty and ownership of property, between prop-
erty and power? As regard property rights, what was a
major objective of those who drafted and pushed for
adoption of the U.S. Constitution? How did they seek
to achieve this objective? [108]
(2) Why did the Framers of the Federal Constitution per-
ceive the state legislatures as constituting a threat
to property rights? In this connection, what was of
special concern to the Framers? How did the Framers
deal with the problem? What is the LEGAL TENDER
CLAUSE? What is the CONTRACT CLAUSE? [108] [Also:
U.S. Constitution, Article I, Section 10, Paragraph 1]
(3) In incorporating the CONTRACT CLAUSE into the U.S.
Constitution, what type of contracts did the Framers
intend for the clause to protect against state action?
Beginning with Chief Justice John Marshall, how did
the U.S. Supreme Court expand the coverage of the CON-
TRACT CLAUSE? What was the effect of this expanded
coverage? Beginning in the 1880s, how did the Court
restrict the clause's coverage? What are the POLICE
Powers of the states? What is the Supreme Court's
current interpretation of the CONTRACT CLAUSE, as re-
gards the impact of the clause on the state police
powers? At the present time, is the CONTRACT CLAUSE
a significant limitation on state governmental power?
Explain. [108]
(4) What is meant by "eminent domain," or the "power of
eminent domain"? What limitation does the Fifth
Amendment impose on the power of eminent domain? Does
this limitation apply to the states as well as the na-
tional government? Explain. Does the EMINENT DOMAIN
CLAUSE require that property owners be compensated
merely because their property loses value as a result
of governmental action? Explain. Ordinarily, what
constitutes a "taking" of private property by govern-
ment? Must the taking always be direct and involve a
person losing title and control over the property?
Explain. What is meant by "regulatory takings"?
Cite an example. [108-109]
(5) What constitutes "just compensation" for private prop-
erty taken by government? Who decides the matter
whenever there is disagreement between government and
and property owner? What standard has been set for
resolving such disputes in eminent domain cases?
[109]
The Right to Due Process:
(1) What are the DUE PROCESS CLAUSES? Where in the U.S.
Constitution are the two clauses located? What does
each clause provide? Which clause was intended to
limit the authority of the national government? Which
was intended to limit state authority? [109] [Also:
U.S. Constitution, Amendments 5 & 14]
(2) Has the U.S. Supreme Court given "due process" a pre-
cise definition? Explain. [109]
(3) What is PROCEDURAL DUE PROCESS? Generally and tradi-
tionally, what has been the meaning of "procedural
due process"? When may "procedural due process" refer
to the law itself, rather than to the method by which
the law is enforced? How may a vague statute be a
violation of the right to due process? How does a law
creating a presumption of guilt constitute a denial of
due process? [109]
(4) How did Daniel Webster define "procedural due proc-
ess"? Under the Supreme Court's interpretation of the
constitutional requirement of procedural due process,
to what types of governmental proceedings does the re-
quirement apply? Cite important examples. [109]
(5) What is included in the LIBERTY that is protected by
the DUE PROCESS CLAUSES? What is included in the
PROPERTY that is protected by these two clauses?
[109-110]
(6) What is SUBSTANTIVE DUE PROCESS? How does it differ
from procedural due process? [110]
(7) Prior to 1937, primarily how was substantive due proc-
ess used by the Supreme Court? What was the conse-
quence? According to the textbook authors, what is
wrong with the substantive interpretation of due proc-
ess? [110]
(8) Since 1937, how has the Supreme Court handled the doc-
trine of substantive due process? What is the current
position of the Court, as regards use of substantive
due process? Has the Court abandoned substantive due
process altogether? Explain. [110]
The Right of Personal Privacy:
(1) What is the relevance of substantive due process to
the right of personal privacy? While the right to
personal privacy is not mentioned in the U.S. Consti-
tution, the Supreme Court has interpreted the Consti-
tution in such manner as to create a constitutionally
protected right of privacy. Explain. What are three
aspects of the right to privacy recognized by the Su-
preme Court? [110-111]
(2) What was the decision of the Supreme Court in the
case of ROE V. WADE (1973)? Enumerate the three parts
of this decision. What was the Court's decision in
PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V.
CASEY (1992)? What is the UNDUE BURDEN TEST? Cite
examples of the Court's application of this test.
[111]
(3) What is the position of the Supreme Court on extending
the right of privacy to relations between homosexuals?
As regards this issue, what was the ruling of the
Court in a 1986 case? What was the decision of the
Supreme Court in ROEMER V. EVANS (1996)? What was the
reasoning of the Court for arriving at this decision?
[111-112]
The Rights of Persons Accused of Crime:
(1) What does the Fourth Amendment have to say about the
rights of persons accused or suspected of engaging in
criminal activity? Do law enforcement officers have a
general right to break down doors and invade homes?
Explain. [112] [Also: U.S. Constitution, Fourth
Amendment]
(2) What is meant by "seizures"? Freedom from seizures is
given less protection than freedom from searches of
property. Explain. Under what circumstances may the
police, without a warrant, arrest a person in a public
place? What is meant by "probable cause"? After mak-
ing a warrantless arrest in a public place, how soon
must the police take the arrested person to a magis-
trate? Why? Does probable cause justify a warrant-
less arrest of a person in his or her home? [112]
(3) What limits does the Fourth Amendment place on the use
of deadly force in apprehending suspected felons?
[112}
(4) The police stop a person to ask questions and/or to
seek that person's consent to a search? When is po-
lice action of this kind not a seizure or detention
requiring probable cause or a warrant? When does the
police action trigger the Fourteenth Amendment re-
quirement of probable cause or a warrant? Explain and
cite examples. [112]
(5) Do administrative searches by school and other nonpo-
lice government officials and employees require search
warrants? Explain. [112-113]
(6) Currently, what is the position of the Supreme Court
on the constitutionality of compulsory drug testing?
Cite examples of cases in which the Court has upheld
the constitutionality of compulsory drug testing. Why
did the Supreme Court overturn a Georgia law requiring
candidates for designated state offices to certify
that they had taken a drug test and that the test re-
sult was negative? [112]
(7) Under what circumstances is a police search without
consent constitutionally reasonable and therefore con-
stitutionally valid? [113]
(8) What is a GENERAL SEARCH WARRANT? Is such a warrant
constitutionally valid? Explain. What is required
for a warrant to be constitutionally valid? [112]
(9) The Fourth Amendment protects people, not places, from
unreasonable searches and seizures. Explain. What is
the EXPECTATION OF PRIVACY RULE? [113]
(10) What was the decision of the Supreme Court in MAPP V.
OHIO (1961)? What is the EXCLUSIONARY RULE? Why did
the Court adopt this rule? When is the Court willing
to make exceptions to the exclusionary rule? [113]
The Right to Immunity from Forced Self-incrimination:
(1) What does the Fifth Amendment have to say about the
right to immunity from forced self-incrimination?
[113] [Also: U.S. Constitution, Fifth Amendment]
(2) What fundamental legal and constitutional principle
was the protection from forced self-incrimination de-
signed to enhance? [113]
(3) When a person is questioned by a legislative investi-
gating committee or some other governmental body, what
is required to legally sustain that person's refusal
to answer a question on grounds that his answer might
incriminate him? [113-114]
(4) How can a witness lose his constitutional right to re-
fuse to give self-incriminating testimony before a
congressional committee or federal grand jury? What
is meant by "granting immunity" to witnesses? Why is
such immunity granted? How was this process of grant-
immunity to witnesses authorized? What is USE IMMUNI-
TY? What is TRANSACTIONAL IMMUNITY?
Suspects' Rights and Coerced Confessions:
(1) In the past, how has police questioning of suspects
sometimes been abused? What problem was created by
this abuse of position and authority? [114]
(2) What did the U.S. Supreme Court have to say about
coerced confessions in MINCEY V. ARIZONA (1978)?
[114]
(3) Federal and state statutes were enacted to deal with
the problem of abuse of police questioning and the re-
sulting coerced confessions. Did these statutes solve
the problem? Explain. [114]
(4) What was the decision of the Supreme Court in MIRANDA
V. ARIZONA (1966)? What does this ruling require of
the police when conducting a custodial interrogation?
What impact did the Miranda ruling have on police
questioning of suspects? What happens if, during an
arrest and custodial interrogation, the suspect an-
swers any questions in the absence of an attorney?
What is the consequence of failure of the police to
comply with the requirements of the Miranda ruling?
[114]
(5) In cases subsequent to MIRANDA V. ARIZONA, how has the
Supreme Court modified the Miranda ruling to deter
perjury, i.e., lying under oath? [114]