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CHAPTER SIX. CONSTITUTIONAL LAW

LEARNING OBJECTIVES

• To understand the origin and nature of the power of judicial review

• To understand the role of the courts in constitutional interpretation

• To understand the various modes of constitutional interpretation utilized by the courts

• To understand the constitutional doctrines of federalism, separation of powers, due

process of law, equal protection and civil liberties

CHAPTER SUMMARY

This chapter introduces the student to the field of constitutional law. The first part of the

chapter has extensive coverage of Marbury v. Madison, the case that establishes the power of

judicial review for courts. Then the chapter explains the role of judicial review in constitutional

law with an emphasis on judicial restraint and judicial activism. It also explores the role of

judicial review by an unelected judiciary in a democratic system.

The next part of the chapter explains the major doctrines surrounding the modes of

constitutional interpretation. Just as scholars disagree over the wording of the constitution, they

also disagree over how the constitution is to be interpreted. The chapter examines original

intention (intent), interpretivism and noninterpretivism with a description of each approach and

some of the arguments for and against each one.

CHAPTER OUTLINE

I. Introduction

II. Judicial Review

A. Marbury v. Madison

B. Judicial Review and Constitutional Law

III. Constitutional Interpretation

A. Original Intention

IV. Major Constitutional Doctrines

A. Federalism

1. Commerce Power

B. Separation of Powers

1. Legislative Veto

C. Due Process of Law

1. Procedural Due Process

2. Substantive Due Process

3. Incorporation Doctrine

D. Equal Protection

1. Suspect Classifications

2. Fundamental Rights and Interests

E. Civil Liberties

1. Freedom of Religion

V. Conclusion

TERMS/CONCEPTS/PEOPLE

Judicial review Writ of certiorari

Court packing §13 of Federal Judiciary Act

Thomas Jefferson William Marbury

John Marshall Federalists

Marbury v. Madison In forma pauperis

Powell v. Alabama Original intention

Moderate originalism The Federalist Papers

Judicial review

CHAPTER TEST QUESTIONS

Multiple Choice Questions

1. The Fifth Amendment Due Process Clause is to the national government as the Fourteenth

Amendment Due Process Clause is to the:

A. President;

B. Congress;

C. Judiciary;

D. States;

E. All of the above.

2. According to Chief Justice Marshall in Marbury v. Madison, “it is emphatically the province and

duty of the ________ to say what the law is.“

A. Executive branch;

B. Legislative branch;

C. Judicial branch;

D. States;

E. Administrators.

3. The approach to federalism that portrays the two levels of government as antagonistic competitors for

power is:

A. Picket–fence federalism;

B. Cooperative federalism;

C. Dual federalism;

D. Neo–federalism;

E. None of the above.

4. Judicial review:

A. Is the exclusive right of the United States Supreme Court;

B. Is the power of a court to declare null and void acts of the government that are contrary to the

Constitution;

C. Is not controversial;

D. Cannot be exercised by state courts;

E. None of the above.

5. The definition of “a political system in which governmental powers are divided between a central

government and regional and/or state governments“ describes:

A. Separation of powers;

B. Sovereignty;

C. Anarchy;

D. Unitary system;

E. Federalism.

6. The theory that the Supreme Court should decide on a case–by–case basis whether a particular provision

of the U. S. Constitution should be applied to the states is:

A. Assimilation;

B. Engulfment;

C. Total incorporation;

D. Selective incorporation;

E. None of the above.

7. The textbook characterizes the role of the Supreme Court in interpreting the Constitution as:

A. Evolutionary;

B. Limited by self–imposed rules;

C. Temporarily settling issues;

D. All of the above;

E. None of the above.

8. Judges who tend to interject their own values into their interpretations of the law are practicing:

A. Judicial activism;

B. Judicial restraint;

Habeas corpus

D. Strict construction;

E. Original intent.

9. When you travel across state lines, you do not have to obtain a new driver license in each state. What

constitutional provision protects the recognition of “public acts, records, and judicial proceedings by every

other state?“

A. Full Faith and Credit Clause of Article IV, § 1 of the U.S. Constitution;

B. Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution;

C. Necessary and Proper Clause of the U.S. Constitution;

D. Supremacy Clause of U.S. Constitution;

E. None of the above.

10. Which of the following identifies the concept that stresses the policies and procedures that

government must observe when depriving someone of life, liberty and property?

A. Judicial process;

B. Inquisitorial process;

C. Due Process;

D. All of the above;

E. None of the above.

11. Which of the following does the judiciary consider in equal protection cases where government is

treating people differently?

A. Nature of the classification such as suspect classification;

B. Whether the right involved is considered to be a fundamental right;

C. Character of the government‘s interest in reaching the goal such as compelling or reasonable;

D. All of the above;

E. None of the above.

12. In Marbury v. Madison, Chief Justice John Marshall argued that the Constitution:

A. Can be altered by the Legislature;

B. Is the supreme law of the land;

C. Is subordinated to the will of the states;

D. All of the above;

E. None of the above.

13. The First Amendment’s protection of freedom of speech:

A. Extends only to the expression of words and ideas;

B. Protects every form of expression;

C. Has never been limited by the Supreme Court;

D. Has never been applied against the states by the Supreme Court;

E. Extends to “symbolic speech“ such as burning a flag.

14. In Marbury v. Madison,

A. Marbury received the judicial appointment that he was seeking;

B. Chief Justice Marshall denied that Marbury had any right to the judicial appointment;

C. The Supreme Court denied Marbury the mandamus that he sought;

D. The Court held that there was no conflict between Article III and the Judiciary Act of 1789;

E. All of the above.

15. The provisions of the Bill of Rights relating to search and seizure are found in:

A. The First Amendment;

B. The Fourth Amendment;

C. The Fifth Amendment;

D. The Sixth Amendment;

E. The Eighth Amendment.

16. All persons are guaranteed “equal protection of the laws“ by the:

A. Original wording of the Constitution;

B. Civil Rights Act of 1964;

C. 42 U.S.C. § 1983;

D. United Nations Charter;

E. Fourteenth Amendment.

17. The theory of constitutional interpretation that is almost formula–like in its application, that is, the

judge should apply the facts to the fundamental principles and values incorporated by the Founding

Fathers in the Constitution is:

A. Intrepretivism;

B. Nonintrepretivism;

C. Original intent;

D. New federalism;

E. None of the above.

18. The president‘s power to nominate Supreme Court justices is an example of:

A. Checks and balances;

B. Separation of powers;

C. Executive privilege;

D. Delegation;

E. All of the above.

Essay Questions

1. Discuss the concept of judicial review and its impact on American jurisprudence.

2. Discuss the case of Marbury v. Madison including, but not limited to, its facts and reasoning.

3. Discuss Marbury v. Madison as a landmark decision of the Supreme Court. This should

include a discussion of the empowerment of the federal judiciary through the case.

4. Discuss equal protection including, but not limited to, its source, its limitations, and various

tests that the court employs in these cases.

5. Define, distinguish, and discuss the various theories about the interpretation of the

Constitution.

6. Identify the provisions of the Bill of Rights by amendment.

7. Discuss the concept of limited government.

8. Trace the development of the right to counsel and discuss the right.

9. Discuss issues related to freedom of speech as an example of civil liberties.

10. Discuss the case of Marbury v. Madison including, but not limited to, its facts and reasoning and its role as a landmark

decision.

11. Discuss the institution of the United States Supreme Court including its organization, its culture, its jurisdiction, and its

agenda.