CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 1
History, Structure, and Content of the United States Constitution
Objectives
This chapter covers the events that led to the adoption of the U.S. Constitution, the structure and content of
the Constitution, the limitations imposed by the Bill of Rights and the Fourteenth Amendment, an overview
of our judicial system, how cases reach the Supreme Court, and the remedies our legal system provides for
police violations of constitutional rights. It is designed as an introductory chapter. The objectives of this
chapter are to provide a working knowledge of:
1. The events that led to the adoption of the Constitution and Bill of Rights.
2. Major structural features of the Constitution, including the separation of the powers between the three
branches of the federal government, the powers granted to the federal government, the nature of our
federal union, and the sovereign powers reserved by the states.
Discussion Outline
§§ 1.1 – 1.5 History of the United States Constitution
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
A. PowerPoint Slide 3. We the People of the United States, in Order to form a more perfect
B. The introductory sections can be covered hastily. The Student Review Questions on the Ancillary Web
Site bridge the gap by focusing on what students need to take away from these materials.
§§ 1.6 – 1.8 Structure and Content of the Constitution
A. The original Constitution is divided into seven parts called “articles.”
PowerPoint Slide 4. Structure of the Constitution
• Article I: legislative branch
• Article II: executive branch
• Article III: judicial branch
B. Separation of the powers of the national government (Articles I, II, and III)
PowerPoint Slide 5. Separation of Powers of the U.S. Government
Articles I, II, and III separate the powers of the national
government into three branches
• Legislative branch
o House of Representatives
C. Amending the Constitution (Article V)
1. Article 5 establishes the procedure for amending the Constitution. Amendments must be proposed
by a two-thirds vote in both houses of Congress or two-thirds of the state legislature. Once
successfully proposed, they must be ratified by three-fourths of the states.
2. Exercise. To get into the nitty-gritty of the amendment process, you might want to pose the
D. Article 6 declares that the Constitution, laws, and treaties of the United States shall be the supreme law
of the land and shall bind state judges, displacing contrary provisions in state constitutions and statutes.
This is known as the supremacy clause.
§ 1.9 Powers Granted to the Federal Government
A. Our Constitution establishes a federal government of expressly defined and enumerated powers. Article
1, Section 8, enumerates the powers delegated to the federal government. All laws enacted by Congress
must be based on one or more of these powers. A common thread can be seen in most of the powers
delegated to the national government. They cover matters that require a uniform national policy (e.g.,
currency, declaring war, raising an army) and that no single state could effectively deal with on its own.
PowerPoint Slide 6. Powers of Federal Government (Part I)
These powers are found mainly in Article I, Section 8:
• Levy taxes
• Borrow money
PowerPoint Slide 7. Powers of Federal Government (Part II)
• Establish judicial tribunals inferior to the Supreme Court
• Make and enforce laws related to piracy or felonies
committed on the high seas
B. The power to levy taxes and make expenditures for the national defense and general welfare is not only
one of the most important; it’s also one of the most flexible. Congress can use this power to shape
decisions on matters it cannot regulate directly.
National Federation of Independent Business v. Sebelius (Part II). The Affordable Care Act
(better known as Obamacare) is an example. This Act required persons with a certain income to
C. The power to regulate interstate and foreign commerce is the most widely used of all federal powers.
It clothes the federal government with power to regulate: (1) the channels and instrumentalities used
in interstate commerce, such as interstate highways, railroads, trucking concerns, airlines, and
telephone and telegraph companies; (2) persons, products, transactions, activities, and services that
move in interstate commerce or extend across state lines; and (3) any commercial activity that
substantially affects interstate commerce.
United States v. Lopez (Part II). The issue was whether a federal statute making it a crime to
National Federation of Independent Business v. Sebelius (Part II). The issue in this case was
whether the provision of the Affordable Care Act (also known as Obamacare) requiring all people
with a certain income to obtain health insurance or pay a penalty reportable on their federal income
tax return could be sustained under the third category of commerce clause regulations. The
Supreme Court answered “no.” The individual mandate did not regulate existing commercial
D. Strategy to enliven class discussion. One way to spice up coverage of the enumerated powers is to ask
students whether Congress has the power to enact legislation concerning particular subjects and, if so,
under which enumerated power. Does Congress have the power make it a crime to:
1. Marry a person under age 16? No. The power to regulate local noncommercial activity like
domestic relations is reserved to the states.
2. Transport a person under age 16 to another state to engage in sexual activity? Yes. Congress has
the power to prohibit use of the channels of interstate commerce for an immoral purpose.
E. The necessary and proper clause and implied powers. The powers granted to Congress are not confined
to those that are expressly enumerated. The last clause of Article I, Section 8, grants Congress “power
to enact all laws necessary and proper for carrying into execution the foregoing powers.” This is the
source of the federal government’s so-called implied powers. The necessary and proper clause
augments the delegated power by allowing Congress to enact any measures, not prohibited by the
Constitution, that are appropriate for carrying its delegated powers into effect.
F. Points to emphasize about the commerce clause include the following. The commerce clause permits
Congress to regulate three broad categories of activities: (1) the channels and instrumentalities involved
§§ 1.8, 1.10, and 1.11 Division of Power Between the National Government and the States
A. The powers retained by the states are called police powers. These powers are ascertained through
Constitutional mathematics. Before the adoption of the Constitution, sovereignty resided in the states.
The states yielded some of their sovereignty by delegating specifically enumerated powers to the
PowerPoint Slide 8. Federal/State Division of Power
• Article I, Section 8 lists the powers delegated to the federal government.
• Article I, Section 10 prohibits the States from exercising certain powers.
• The Tenth Amendment reserves all remaining powers to the states.
B. Powers the States are Forbidden to Exercise
PowerPoint Slide 9. Powers the States are Forbidden to Exercise
• Enter into treaties, alliances, or confederations.
C. The Tenth Amendment and the Reserved Powers
1. The Tenth Amendment reads: The powers not delegated to the United States by the Constitution,
nor prohibited by the States, are reserved to the States respectively, or to the people.
2. Because the states hold the residual of power (i.e., all powers that are not expressly delegated to
the federal government and that the states are not forbidden to exercise), the powers retained by
the states depend on the interpretation of the powers that have been delegated. The Supreme
Court’s expansive commerce clause jurisprudence during the New Deal era altered the federal/
state balance of power. Beginning in the mid-1990s, the Supreme Court issued a series of decisions
calculated to check further expansion of federal power at the expense of state sovereignty.
United States v. Lopez (Part II). Lopez is an excellent teaching case for two reasons. First, it
contains a clear and understandable discussion of the reach of federal power under the
C. Power of the Federal Government to Regulate Activities of the States
1. While the federal government has vast regulatory power, its powers are mainly over the American
people, not the states. Principles of federalism prohibit the federal government from using its
Article I powers to regulate the actions of state governments in ways that infringe on their
sovereignty. The federal government, for example, may not use its Article I powers to force state
governments to enact particular laws, administer federal programs, enforce federal statutes, or
compensate private individuals for violating their rights under federal statutes enacted under the
commerce clause.
Printz v. United States (Part II). The Supreme Court invalidated a provision of the Brady
Handgun Violence Prevention Act requiring the chief law enforcement officer of each local
D. The Supremacy of Federal Law.
1. Supremacy Clause declares that the Constitution and laws of the United States made in pursuance
thereof shall be the supreme law of the land, anything in the constitutions and laws of any state to
the contrary notwithstanding. State laws are unconstitutional under the supremacy clause when
the conflict with federal laws or deal with a subject that is so comprehensively regulated by federal
law as to indicate intent upon the part of Congress to occupy the field fully. This is called
preemption. This introduction provides a foundation that students need to understand the matters
at issue in Arizona v. United States.
Arizona v. United States (Part II). Arizona v. United States deals with the ability of states to
enact laws designed to address local problems that result from illegal immigration, a subject
that is comprehensively regulated by federal law. The Court found three provisions of the
§ 1.12 Bill of Rights
A. The Bill of Rights was adopted to fulfill pledges made to secure adoption of the Constitution.
PowerPoint Slide 10. The Bill of Rights
The first 10 Amendments to the U.S. Constitution are called the Bill of Rights. The most important
safeguards are found in the:
First Amendment (guarantees freedom of speech, press, religion, assembly, petition)
B. The Second Amendment reads that “[a] well-regulated Militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be infringed.” This provision remained a
dead letter until recently because it was thought to protect the right to bear arms only when they were
used to fulfill militia duties.
District of Columbia v. Heller (Part II). The District of Columbia enacted an ordinance that
made it a crime to keep a loaded handgun in the home. The question before the Supreme Court
was whether the Second Amendment established a personal right to bear arms for lawful uses
§§1.13 – 1.16 The Fourteenth Amendment
A. The Fourteenth Amendment contains two highly important limitations on the power of statement
governments: (1) The due process clause, and (2) the equal protection clause.
PowerPoint Slide 11. The Fourteenth Amendment
1) Makes most of the Bill of Rights apply to the states
B. The Fourteenth Amendment makes most of the Bill of Rights apply to the states. The Bill of Rights was
initially binding only on the federal government. The Fourteenth Amendment, ratified after the Civil
War, was used as a vehicle for incorporating the main guarantees of the Bill of Rights into the
Fourteenth Amendment due process clause and making them binding on the states. The standard the
Supreme Court has used to decide whether to incorporate a particular provision is whether the
guarantee is fundamental to the American system of justice. Incorporation into the due process clause
means that states must provide at least as much protection as the U.S. Constitution requires. Federal
standards become the constitutional minimum. However, states remain free, pursuant to their own
constitutions, to adopt a higher standard.
C. The Fourteenth Amendment is phrased as a limitation on the powers of the states to act. It forbids them
D. The Fourteenth Amendment prohibits state governments from depriving persons of life, liberty, or
property without due process. The due process clause provides both substantive and procedural
1. Procedural due process requires state governments to provide notice and a hearing before taking
actions that deprive persons of life, liberty, or property.
2. Substantive due process requires state governments to have an adequate reason for the deprivation.
Some rights are so fundamental to the liberty of free citizens that states cannot deny them without
a compelling reason. These rights are called “fundamental rights.” The label of “fundamental
right” has been reserved mainly for intimate, life-shaping decisions about personal and family
matters, such as the right to marry, have children, direct their education and upbringing, terminate
an unwanted pregnancy, forego life-sustaining treatment, etc.
Lawrence v. Texas (Part II). Houston police officers, responding to a hoax call about a
weapons disturbance in John Lawrence’s apartment, entered and saw Lawrence and
another adult male engaging in homosexual conduct. They arrested both men and charged
them with “deviate sexual intercourse,” defined under Texas law as having “oral or anal
sex, with a member of the same sex.” Both were both found guilty and appealed. The Court
held that the right of consenting adults to have intimate relations with a partner of the same
sex is a fundamental right and cannot be criminalized.
3. Substantive due process also provides a theory for holding public officials accountable for
egregious misconduct that is not otherwise covered by the Constitution. To be actionable under
E. The Fourteenth Amendment equal protection clause (PowerPoint Slide 9) makes it illegal for state
governments to deny persons equal protection of the laws. In Plessy v. Ferguson, the Supreme Court
interpreted the equal protection clause to permit state-mandated racial segregation as long as equal
PowerPoint Slide 13. Equal Protection of the Laws
Three levels of scrutiny:
• Low
o Statutory classifications not based on race, color,
religion, national origin, or gender
• Intermediate
o Gender-based classifications
• Strict
o Classifications based on race, color, religion, and
national origin
1. Whether laws that distinguish between classes of citizens violate the equal protection clause.
Generally depends on the review standard (called level of scrutiny) used to determine the
2. The equal protection clause applies to enforcement of laws, as well as their enactment. Equal
protection is violated when police deliberately treat one person differently from the way they treat
other persons in the same situation because of the person’s race, religion, or ethnicity.
§ 1.17 Adjudication of Constitutional Questions
A. The Supreme Court of the United States has discretion regarding whether to hear a particular appeal.
Requests to the Supreme Court for discretionary review are instituted by filing a petition for a writ of
certiorari. Petitions for writs of certiorari brought by state prisoners reach the Supreme Court primarily
through one of two routes—direct review and habeas corpus review.
PowerPoint Slide 14. Constitutional Questions
Cases from state prisoners generally reach the Supreme Court by two
routes:
1. Direct review
2. Habeas corpus review
o Used to secure release from unlawful confinement
o Petitions for a writ of habeas corpus are filed in a
federal district court. If the claim is denied, the prisoner
1. Direct review. A defendant seeking direct review must appeal his or her conviction up the state
appellate court ladder to the highest state court available before petitioning the Supreme Court to
have his or her case heard on direct review.
2. Habeas corpus review. Federal law affords state prisoners a post-conviction remedy called habeas
corpus. A state prisoner commences this action by filing a petition in federal court, alleging that
§ 1.18 Federal Remedies for Constitutional Abuses
PowerPoint Slide 15. Constitutional Violations
Constitutional violations carry serious consequences, including:
• Exclusion of evidence
Student Review Questions
1. Why was the central government established under the Articles of Confederation unworkable? (§1.3)
2. When the newly drafted Constitution was submitted to the states for ratification, three major objections
were raised against its adoption. What were they? (§1.5)
3. How many articles does the Constitution contain? Which Article does the following? (§1.6)
____ a. Establishes procedure for amending the Constitution.
____ b. Contains the supremacy clause.
____ c. Establishes the Executive Branch.
4. Which three articles provide for the separation of powers of the federal government? What is the main
responsibility of the legislative branch? The executive branch? The judicial branch? What courts are
directly established in Article III? (§1.7)
7. List the powers delegated to Congress under Article I, Section 8. (§1.9)
8. Identify the three categories of activities Congress can regulate under the commerce clause. Provide
examples of the kinds of regulations that are permissible under each category. What two limitations
has the Supreme Court imposed on laws enacted under the third category? (§1.9)
9. What is the constitutional basis for the “implied powers” of Congress? What do the implied powers
permit Congress to do? (§1.9)
12. What is the constitutional basis for the doctrine of preemption? Federal preemption will be found in
four situations. Identify them. (§1.11)
13. When the first Congress met after the government was established under the Constitution, legislation
was introduced to add a Bill of Rights. Why was this action necessary so soon after the government
was established? (§1.12)
14. In which of the first 10 Amendments are the following rights guaranteed? (§1.12)
____ a. Right to assistance of counsel
____ b. Right to keep and bear arms
____ c. Protection against cruel and unusual punishment
____ d. Freedom of speech
15. What test has the Supreme Court used to determine whether or not to incorporate a right? (§1.13)
16. What four things does the Fourteenth Amendment do? (§§1.13, 1.14, 1.15, 1.16)
17. Explain the difference between substantive due process and procedural due process. (§1.15)
18. What does the phrase “fundamental right” mean? Give several examples of rights that are regarded as
“fundamental rights.” (§1.15)
21. What five consequences may ensue from a police officer’s violation of a citizen’s constitutional rights?
(§1.17)