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OUR CONSTITUTION
GENERAL COMMENTS
This chapter introduces the student to the fundamentals of constitutional law. Already we have
reminded students of the dramatic societal changes that occurred over the last century and of the
challenging events unfolding this century. Students born in the last of the 20th century will often lack any
personal perspective on the durability of the constitution that a person who lived through a significant
portion of the 20th century would. As the 21st Century unfolds, the United States’ role in worldwide events
is raising questions on the meaning, application and efficacy of the Constitution. We hope to demonstrate
how our Constitution survived the changes in the last century by leading with principles that are
immutable. The students’ lives, however, will be focused on the future and the viability of the constitution
will continue to be tested with the challenges of contemporary society.
At the text’s writing, contemporary issues include the ongoing detention of terrorist suspects using
principals and procedures different from both the United States’ justice system and from the Geneva
Convention (you may choose to cover this in the Chapter on Criminal Law) and other issues stemming
from the “war on terror”, racial preferences or affirmative action programs in University admissions, and
increased intrusions upon individual privacy, to name a few. Of course, some issues such as abortion and
immigration continue as hotly debated topics with a constitutional law connection. The text may be out of
date a day after publication on these topics and others. You will need to do current topical research.
However, we do believe we have provided the coverage of fundamental constitutional concepts needed to
create a useful conversation about the difficult issues facing a free society.
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CHAPTER SUGGESTIONS
1. The chapter’s organization generally follows the pattern used in most “con law” textbooks. We
2. Constitutional law can be very difficult, even a “turn off” for students, particularly when it is
squeezed into a single chapter. We have attempted to provide stimulating examples to show how
constitutional law applies to people’s lives. We have found that classroom discussions of examples
are the most effective way to enliven our students’ involvement with, and appreciation of,
constitutional principles. Many obvious questions for student discussion deserve preparation time.
Consider this question, for example: “Should state courts be able to suspend a new law (or
constitutional provision) immediately following its adoption by the people through the initiative
process?” The question could include a specific topic, such as restricting the expenditure of public
3. PBS is a wonderful source for video programs in topical areas. For example, if you wish to go into
depth for discrimination as a backdrop for a discussion about university admissions, jobs, or by-
FOR CRITICAL ANALYSIS
Thomas et al. v. Chicago Park District
1. It was important. Content neutral means the license was granted or not granted without reference to
what speech was planned for the event. The park districts ordinance does not authorize a licensor to
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2. The Fourteenth Amendment due process clause has been interpreted to incorporate the free speech
clause and provide federal constitutional protection from state government action. (A municipality
is considered a state government.)
3. A prior restraint is constraint on speech before it happens. The notion is that it is odious to conclude
behavior will be wrongful before one knows exactly what the behavior will be. The constitutional
concern is free speech protects unpopular views that the majority would often times be inclined to
prohibit. Any licensing of speech before it occurs is a prior restraint. The question is whether it is
Bush v. Gore
1. He won the Electoral College vote.
2. The court’s opinion held that the recount procedures adopted by the Florida Supreme Court were
inconsistent with its obligation to avoid arbitrary and disparate treatment of the members of its
electorate. “The problem inheres in the absence of specific standards to ensure its equal application.
3. Discussion question. Good opportunity for students to make answers grounded in fact rather than
mere unsupported opinion.
ANSWERS TO QUESTIONS AND PROBLEMS
1. The question is answered by the case of Gerber v. Hickman 291 F.3d 617 (9th Cir. Cal., 2002) cert.
denied 123 S.Ct. 558, (2002)
a. A prisoner does not lose all constitutional rights, but certain rights are curtailed. “[P]rison walls
do not form a barrier separating prison inmates from the protections of the Constitution.” For
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2. The plurality Bakke case found a hard quota to be unconstitutional. In 2003, the Supreme Court
decided a college admissions affirmative action case, Grutter v. Bolinger (T539 U.S. 306, 123 S.Ct.
2325 (2003)) and allowed a college admissions program that focused on diversity with race and
ethnic background being only one of many factors considered. A race specific scholarship program,
however, is more akin to a hard quota such as in Bakke and is thus probably unconstitutional. One
has to use the word probably since Bakke was a plurality and the Grutter case did not provide any
clear renunciation or endorsement of the Bakke prohibition of a hard quota.
3. E-mail is a “push” phenomenon in which consumers do not ask for the “spam” they receive. Thus,
government regulation can be characterized as consumer protection. Web sex, however, is a “pull”
phenomenon in which customers seek out, and often pay for, the information they obtain. Thus,
consumers appear to need less regulation of web sex than of unwanted e-mail. For example, the
4. In 2003, in Lawrence v. Texas, discussed on pages 87-88, the Supreme Court held in a divided
opinion that private homosexual sexual relations are protected as a liberty right. Thus a law
prohibiting sodomy is considered unconstitutional. The Lawrence decision reflected a major change
5. The court initially avoided the issue by stating that the School District’s use of the racial tiebreaker
violated Washington state law. Because “we look first to state law to resolve this issue, in
accordance with our longstanding principle that courts should avoid making federal constitutional
decisions unless and until necessary.” On rehearing en banc, the Court of Appeals, Fisher, Circuit
Judge, held that:
(1) school district had compelling interest in securing educational and social benefits of racial and
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6. Discussion questions as issues are raised in the courts: a) equal protection and due process, b) due
process and all criminal law protections, c) search and seizure.
7. Yes. The city was exercising its police power to protect its residents from the threat of fire, and the
restriction on flag burning was necessary to achieve that legitimate governmental objective. The
ordinance made no attempt to squelch flag burning as a political statement, and it could take place
on days when fire hazards were moderate to low.
8. Many would agree with The Economist, because the philosophical balance of the court, for many
years in the future, could be affected by the vote of one new justice.
Not only is the appointment for life “during good behavior,” but the impact on our culture is
pervasive and powerful. This is manifest in the numerous rules and regulations that govern and
shape our social, political, and economic affairs. The Supreme Court is the final arbiter, short of
9. The U.S. Supreme Court said yes by a 5-4 margin. The court held that prayer, even if nonsectarian,
violates the Constitution when it is part of a public high school or public elementary school
graduation ceremony. Justice Kennedy, in the majority opinion, acknowledged the difficulty of
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10. Whether it is fair to force someone to “break the law” in order to “change the law” is a question of
ethics. In discussing this question consider both duty-based and utilitarian methods of ethical
analysis. Under a duty-based view, the question is one of whether there is a duty to follow a law
that you consider illegal or immoral. From a utilitarian perspective, one could balance the costs and
benefits of access to the courts to those seeking advisory opinions and those with true legal
conflicts.