Environmental Engineering Chapter 5 Students should find an Internet site that contains

Chapter 5

CONSTITUTIONAL LAW

1

Suggested Assignments

Interview: Civil Rights

Research: The Internet and Free Speech

Students should find an Internet site that contains speech or pictures that they consider outrageous or

not to outlaw the material.

Research: Constitutional Rights

Students should find an article in a newspaper, magazine, or through the Internet about a business

confronting a constitutional issue that typically we associate with human beings, such as free speech,

freedom of religion, eminent domain, due process, and searches and seizures.

Chapter Overview

Chapter Theme

The United States Constitution, the greatest legal document ever written, is a series of compromises about

the power of government. The compromises affect every citizen and company in the nation, every day.

Quote of the Day

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” –

Government Power

The Constitution sits above everything else in our legal system. No law can conflict with it. The

Overview

The United States Constitution, the greatest legal document ever written, is a series of compromises about

the power of government. The compromises affect every citizen and company in the nation, every day.

Separation of Powers

2 Unit 1 The Legal Environment

The Framers did not want to place too much power in any single place. One method of limiting power

Individual Rights

The original Constitution was silent about the rights of citizens. This alarmed many who feared that the

new federal government would have unlimited power over their lives. So in 1791 the first 10

amendments, known as the Bill of Rights, were added to the Constitution, guaranteeing many liberties

Interstate Commerce

Interstate commerce may not be the sexiest of topics but it is an excellent vehicle for teaching federalism,

concurrent and exclusive jurisdiction, and the scope of and limits on federal power. One way into the

State Legislative Power

The Tenth Amendment says, “All powers not delegated to the United States by the Constitution…are

reserved to the States.”

Supremacy Clause

What happens when both the federal and state governments pass regulations that are permissible, but

conflicting? Article VI of the Constitution contains the answer. The Supremacy Clause states that the

Executive Power

Chapter 5 Constitutional Law 3

Article II of the Constitution defines executive power. The President’s most basic job function is to

enforce the nation’s laws. Three key powers concern the appointment of many administrative agency

officers and Supreme Court Justices, proposing, drafting and vetoing legislation, and establishing and

conducting foreign policy.

Judicial Power

Adjudicating Cases

Judicial Review

Judicial review refers to the power of federal courts to declare a statute or governmental action

unconstitutional and void. This is one of the most important of all constitutional powers, yet it appears

nowhere in the Constitution. The Supreme Court simply declared that it had this power, in Marbury v.

Madison, in 1803. It has been controversial ever since.

Question: Why is judicial review so controversial?

Answer:

• The people elect legislators, at the state and federal levels, largely to pass statutes. In theory, the

Question: Are there arguments in favor of judicial review?

Answer: Of course—it has, after all, been part of our Constitutional heritage for over 200 years.

• The power to invalidate legislative or executive acts that exceed the authority granted by Articles

Case: Kennedy v. Louisiana

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Facts: Patrick Kennedy was convicted of raping his eight-year-old stepdaughter L.H. A forensic expert

testified that L.H.’s injuries were the most severe he has ever witnessed from a sexual assault. The jury

also heard evidence that Kennedy had raped another eight-year-old girl. Kennedy was convicted of

aggravated rape, because the victim was under twelve years old.

The jury voted to sentence Kennedy to death. The state supreme court affirmed the sentence and

4 Unit 1 The Legal Environment

Kennedy claimed that capital punishment was out of proportion to rape and thus violated the Eighth

Amendment.

Issues: Did the Louisiana statute violate the Constitution by permitting the death penalty in a case of

child rape? Is it proper for the Supreme Court to decide this issue?

Excerpts from Justice (Anthony) Kennedy’s Writing of the Majority Opinion: The Eighth

Amendment mandates that the State’s power to punish be exercised within the limits of civilized

Louisiana reintroduced the death penalty for rape of a child in 1995. Five states have since followed

Louisiana’s lead: Georgia, Montana, Oklahoma, South Carolina, and Texas. By contrast, 44 states have

not made child rape a capital offense. As for federal law, Congress in the Federal Death Penalty Act of

Justice Alito, dissenting: If anything can be inferred from state legislative developments, the

message is very different from the one that the Court perceives. In just the past few years, five states

have enacted targeted capital child-rape laws. Such a development would not be out of step with

changes in our society’s thinking. During that time, reported instances of child abuse have increased

dramatically; and there are many indications of growing alarm about the sexual abuse of children.

[The judgment of the Louisiana Supreme Court should be affirmed.]

Question: Is rape, particularly child rape, punishable by capital punishment (the death sentence)?

rapes against children.

Question: Why is that significant?

Question: Is it proper for the Supreme Court to decide this issue?

Additional Case: Youngstown Sheet & Tube Co. v. Sawyer

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Facts: During the Korean War, unions threatened to strike steel mills. President Truman responded by

ordering Secretary of Commerce Sawyer to seize the mills and keep them running. Sawyer began to issue

orders to company executives. A federal district court enjoined Sawyer from taking over the companies;

the court of appeals stayed the injunction; and the Supreme Court immediately granted certiorari.

Issue: Did the President have the constitutional power to seize the steel mills?

Holding: No, he did not have the power. The President may only act pursuant to statutory or

Chapter 5 Constitutional Law 5

nor do any of the President’s specified powers imply such a right. The Court affirmed the injunction

barring the takeover.

Question: What is the source of the President’s power?

Answer: Article II of the Constitution defines executive power and vests it in the President. Article

Question: Does Article II or any other part of the Constitution expressly grant the President power to

seize private property?

Question: Then what is the basis for Truman’s argument?

Answer: Truman argued that the power to seize the mills is implied from the aggregate of powers

Question: Why didn’t Truman’s argument prevail?

Question: What was the outcome?

Answer: Truman complied with the Court’s order. By doing so he respected the powers granted to

Nixon and Executive Privilege

During the Senate’s Watergate investigation, it became known that President Nixon had recorded virtually

all discussions in the Oval Office. Special prosecutor Archibald Cox, in charge of investigating and

prosecuting crimes associated with the break-in, subpoenaed tapes of some meetings and telephone

conversations, for use in cases against various Nixon staff members. The president refused to release the

tapes, citing executive privilege. Instead, Nixon fired Cox, although the two highest-ranking members of

the Justice Department refused to carry out the order to fire Cox, and Nixon had to fire them as well. An

enormous public outcry at the firings forced Nixon to hire a new prosecutor, Leon Jaworski, who resumed

the battle for the tapes.

Judge Sirica, the district court judge, ordered the President to turn over the tapes, and the President

appealed the case to the Supreme Court. The issues were whether a special prosecutor had the right to

Bush, FISA, and Warrantless Wiretaps

In December 2005, The New York Times reported that President Bush had authorized the National

Security Agency (NSA) to conduct domestic surveillance without a warrant or court order; activities that

many believe violate the Fourth Amendment prohibition on warrantless searches and seizures. Mr. Bush

6 Unit 1 The Legal Environment

• Whether there is a Fourth Amendment exception permitting warrantless surveillance and searches for

gathering foreign intelligence, a question left open by the Supreme Court in Katz v United States, 389

U.S. 347 (1967) and United States v United States District Court, 407 U.S. 297 (1972) (the “Keith

Decision”);

Judicial Activism and Judicial Restraint

Students are likely to equate judicial activism with liberal political beliefs and judicial restraint with

conservative political beliefs. These characterizations are simplistic and misleading:

“Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward

One can argue that Griswold v Connecticut, the 1965 decision striking down Connecticut’s ban on

contraceptive devices (see additional question 6 on page 126), and Dred Scott v Sanford, the 1857

decision holding that blacks could never become citizens of the United States, are both examples of

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“White House Elaborates on Authority for Eavesdropping,” Charles Lane, The Washington Post, Dec. 20, 2005

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“Legal Analysis of the NSA Domestic Surveillance Program,” Orin Kerr, The Volokh Conspiracy, Dec. 19, 2005

Chapter 5 Constitutional Law 7

Protected Rights

First Amendment: Free Speech

On March 1, 2006, this story appeared in the media:

Americans apparently know more about The Simpsons than they do about the First Amendment. Far

more Americans can identify Lisa, Marge, Maggie, Homer, and Bart than the First Amendment

freedoms. Only one in four Americans can name more than one of the five freedoms guaranteed by

the First Amendment (freedom of speech, religion, press, assembly, and petition for redress of

grievances.) But more than half can name at least two members of the cartoon family, according to a

survey.

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Some students will readily demonstrate this deplorable state of affairs. They will parrot words to the

Case: Texas v. Johnson

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Facts: In 1984, outside the Republican National Convention in Dallas, Gregory Johnson participated in a

protest against policies of the Reagan administration. Participants gave speeches and handed out leaflets.

Johnson burned an American flag. He was arrested and convicted under a Texas statute that prohibited

desecrating the flag, but the Texas Court of Criminal Appeals reversed on the grounds that the conviction

violated the First Amendment. Texas appealed to the United States Supreme Court.

Issue: Does the First Amendment protect flag burning?

Comment: In dissent, Justice Rehnquist wrote: “In holding this Texas statute unconstitutional, the court

ignores Justice Holmes’ familiar aphorism that ‘a page of history is worth a volume of logic.’ For more

than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a

uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson

did here.”

Question: How does Justice Brennan, for the majority, respond to Justice Rehnquist’s point that the

flag is not just a symbol but a unique symbol?

General Question: With whom do you agree?

Questions for those who agree that the First Amendment protects flag burning:

8 Unit 1 The Legal Environment

• Isn’t it very painful for veterans of foreign wars, some permanently disabled, to see someone burn

• If the majority of a state’s citizens want to outlaw flag burning, why shouldn’t they be allowed to?

Questions for those who argue that the First Amendment does not protect flag burning:

• If a state could outlaw flag burning, could it also outlaw burning a copy of the Constitution? A

Additional case: You Be the Judge: Barnes v. Glen Theatre, Inc.

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Facts: Indiana’s public indecency statute prohibits any person from appearing nude in a public place. A

nightclub called the Kitty Kat Lounge, and several dancers who wished to perform nude, filed suit,

seeking an order that the statute was unconstitutional. The United States District Court ruled that the

dancing was not expressive conduct. The Court of Appeals reversed, declaring that it was nonobscene

expressive conduct and thus protected by the First Amendment. Indiana did not argue that the dancing

was obscene. (If that were the issue, the Miller test would have determined the outcome.) Instead,

Indiana claimed that its general police powers, including the power to protect social order, allowed it to

enforce such a statute.

Issue: Does Indiana’s public indecency statute violate the First Amendment?

Question: What are a state’s “police powers?”

Answer: The police powers are the inherent rights of states (reserved to them by the operation of the

Question: Is it important that Indiana did not argue that the dancing was obscene?

Answer: Possibly. Had the Court applied the Miller test to determine obscenity (defined on page

Question: What specific purpose did the Indiana statute serve?

Answer: Indiana defended the statute on very general grounds, that it served public health, safety,

and morals. It did not specify the particular ills it addressed.

Question: Doesn’t a state law that interferes with expression require strict scrutiny?

Answer: Usually. The Court’s response to this case was fractured, with Chief Justice Rehnquist and

Political Speech

Political speech is protected unless it is intended and likely to create imminent lawless action.

One of the most important recent developments in Constitutional law concerns the ability of organizations

to engage in political speech.

Chapter 5 Constitutional Law 9

Case: Citizens United v. Federal Election Commission

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Facts: Citizens United, a nonprofit organization, produced a documentary on presidential candidate

First Amendment.

Issue: Did the Bipartisan Campaign Reform Act violate the First Amendment?

Excerpts from Justice Kennedy’s Decision: The First Amendment provides that “Congress shall make

no law . . . abridging the freedom of speech.” The law before us makes it a felony for all corporations—

including nonprofit advocacy corporations—either to expressly advocate the election or defeat of

candidates or to broadcast electioneering communications within 30 days of a primary election and 60

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to

the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is

a precondition to enlightened self-government and a necessary means to protect it. For these reasons,

political speech must prevail against laws that would suppress it, whether by design or inadvertence.

The Court has recognized that First Amendment protection extends to corporations. This protection

has been extended by explicit holdings to the context of political speech. Corporations and other

The Government falls back on the argument that corporate political speech can be banned in order to

prevent corruption or its appearance. We must give weight to attempts by Congress to seek to dispel

either the appearance or the reality of these influences. The remedies enacted by law, however, must

comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the

governing rule. An outright ban on corporate political speech during the critical preelection period is not a

permissible remedy.

Modern day movies, television comedies, or skits on Youtube might portray public officials or public

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130 S. Ct. 876, Supreme Court of the United States, 2010

10 Unit 1 The Legal Environment

The judgment of the District Court is reversed.

It is so ordered.

Question: How did the Bipartisan Campaign Reform Act violate the First Amendment?

Question: Should a movie be considered “free speech”?

Commercial Speech

This is speech that has a dominant theme to propose a commercial transaction. Although the First

Amendment protects commercial speech, the government may regulate it more closely than other forms

of speech. Commercial speech that is false or misleading may be outlawed altogether. Regulations on

permissible commercial speech must be reasonable and directed to a legitimate goal.

Case: Salib v. City of Mesa

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Facts: Edward Salib owned a Winchell’s Donut House in Mesa, Arizona. Salib displayed large signs in

his store window. The City ordered Salib to remove the signs as they violated the Sign Code which

prohibited covering more than 30% of store’s windows with signs. Salib sued claiming the Sign Code

violated his First Amendment rights. The trial court ruled in favor of Mesa, and Salib appealed.

Issue: Did Mesa’s Sign Code violate the First Amendment?

Second, the government must show that the challenged regulation advances that interest in a direct

and material way. Here Salib argues that Mesa cannot satisfy this prong because they have conducted no

Lastly, Salib argues that the Sign Code is not narrowly tailored. However, narrowly tailored does not

mean that the last restrictive means must be used to accomplish the City’s goals. A “reasonable fit”

between the intent of the law and the means used to accomplish that intent is sufficient. Mesa claims that

30% is a reasonable compromise between 100% coverage and a total ban on signage. The court is not in

a position to determine what percentage of coverage is the best solution, only that the 30% standard

adopted by the City was reasonable in order to fulfill the goals of the Code.

Question: Compare the government’s power to regulate commercial speech with its power over other

forms of speech.

speech, such as political speech, artistic expression, and so forth.

Question: Why has the Supreme Court historically permitted greater regulation of commercial

speech?

Answer: Commercial speech is linked closely with the underlying business arrangement that it

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133 P.3d 756, 212 Ariz. 446, Arizona Court of Appeals, 2006.

Chapter 5 Constitutional Law 11

Question: For a government regulation of commercial speech to be valid, what standard must it

Answer: The regulation must be tailored in a reasonable manner to serve a substantial state interest.

Question: What was the state interest served in this case?

Salib conceded that aesthetics was a legitimate interest.

Question: If Salib conceded on that point, what was his problem with the law?

Answer: Salib’s issue with the Sign Code was that there was no hard evidence that signs detracted

Question: What does “narrowly tailored” mean?

Answer: It means that the effects of a law go only as far as necessary to serve the law’s purposes,

and do not regulate activity unrelated to the law’s purposes.

Question: What was the court’s point on whether the regulation was narrowly tailored?

Answer: The court made it clear that it is not in the business of deciding what percentage of window

Fifth Amendment: Due Process and the Takings Clause

Procedural Due Process

Procedural due process is required whenever the government attempts to take liberty or property. The

amount of process that is due depends upon the importance of the liberty or property threatened.

Takings Clause

The Takings Clause prohibits a state from taking private property for public use without just

compensation.

Substantive Due Process

Case: Kelo v. City of New London

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Facts: New London, CT was declining economically. In order to revitalize the city, state and local

officials decided to redevelop a section of the city called Fort Trumbull. The development plan included

residential, business, and hotel use. The state bought most of the properties from willing sellers, but nine

owners refused to sell and filed suit claiming the city was taking its land for private use in violation of the

Takings Clause.

Issues: Did the City’s plan violate the Takings Clause?

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545 U.S. 469, 125 S.Ct. 2655, United States Supreme Court, 2005.

12 Unit 1 The Legal Environment

Here the city is not planning to make all of the property open to the general public. The city is

trying to execute an economic revitalization plan that includes, among other things, new jobs and

increased tax revenue from the developed property. This unquestionably serves a public purpose.

Comment: Justice O’Connor, in her dissent stated that the Court’s decision is an expansion on the

meaning of public use. Now, according to O’Connor, the state may take private property from a private

person and give it to another private person if there is a predicted benefit to the public. However, almost

any lawful use of private real estate can be said to have positive side effects. If this is the case, reasoned

O’Connor, then any predicted positive effect would be enough to justify a taking by the state. This result

would render the “public use” constraint on the government’s power under eminent domain useless.

Question: What does the Takings Clause require?

Question: Does that mean that the government has the right to announce that it wants your house in

order to build a library, and it may then take the property?

Answer: Yes, but the government must pay fair compensation.

Question: In this case, the city of New London took private property to put to private use. How is

that possible?

Answer: The city did take private property to give to other private entities. However, the city argued

Question: Why did Justice O’Connor not agree with that public use?

Answer: Part of Justice O’Connor’s dissent focused on the public use realized from almost any use

Question: But if there is a predicted or even guaranteed beneficial public use, isn’t that a good thing?

Answer: Not necessarily. Justice O’Connor’s fear is that the people who will benefit from this

Fourteenth Amendment: Equal Protection Clause

Pursuant to the Equal Protection Clause, the government generally must treat people equally. As with

most of the important constitutional protections, “government” means not only the federal but also state

is lawful, the first step is to specify what is being regulated. That will determine the level of scrutiny a

court will apply to the regulation, which in turn will generally make the outcome of the case predictable.

• Minimal Scrutiny: Economic and Social Relations. Government actions that classify people or

Example: State Universities and Non-Resident Tuition

Chapter 5 Constitutional Law 13

In discussing the equal protection clause a question will often arise: Does lower tuition for in-state

residents than non-residents at a state university violate the 14th Amendment? This is a good topic for

discussion because most students will be aware that non-residents pay higher tuition than residents at state

schools, but it may not be obvious why this practice does not violate the equal protection clause. In

discussing this topic, ask students for other examples of discriminatory charges paid by non-residents of a

state. Some students will be familiar with the higher fees paid by non-residents for fishing and hunting

licenses, or with higher fees paid by non-residents of a town for access to a town beach. Students should

also focus on the legal test required to analyze such higher payments. These are the points to elicit or

make during discussion:

• Courts apply the rational basis test to ascertain the constitutional validity of higher non-resident

tuition because it is a classification based on economic relations.

See, e.g., Baldwin v Fish and Game Commission of Montana.

Multiple Choice Questions

1. Greenville College, a public community college, has a policy of admitting only male students. If the

policy is challenged under the 14th Amendment, ________________ scrutiny will be applied.

(a) strict

(b) intermediate

(c) rational

(d) none of the above

2. You begin work at Everhappy Corp. at the beginning of November. On your second day at work, you

wear a political button on your overcoat, supporting your choice for governor in the upcoming

election. Your boss glances at it and says, “Get that stupid thing out of this office or you’re history,

chump.” Your boss ______________ violated your first amendment rights. After work, you put the

button back on and start walking home. You pass a police officer who blocks your path and says,

“Take off that stupid button or you’re going to jail, chump.” The officer _____________ violated

your first amendment rights.

(a) has; has

(b) has; has not

(c) has not; has

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259 F. Supp. 117 (C.C.Iowa 1966) aff’d 406 F.2d 883 (8th Cir. Iowa), cert. den. 396 U.S. 862 (1969)

14

436 U.S. 371; 98 S. Ct. 1852; 56 L. Ed. 2d 354; 1978 U.S. LEXIS 27; 8 ELR 20425

14 Unit 1 The Legal Environment

(d) has not; has not

3. Which of the following statements accurately describes statutes that Congress and the President may

create?

(a) Statutes must be related to a power listed in Article I, section 8 of the Constitution.

(b) Statutes must not infringe on the liberties in the Bill of Rights

(c) Both A and B

(d) None of the above

4. Which of the following is true of the origin of judicial review?

(a) It was created by Article II of the Constitution

(b) It was created by Article III of the Constitution

(c) It was created in the case Marbury v. Madison

(d) It was created by the 5th Amendment

(e) It was created by the 14th Amendment

5. Consider the case Kelo v. City of New London, in which a city with a revitalization plan squared off

against property owners who did not wish to sell their property. The key Constitutional provision

was the takings clause in the _____ Amendment. The Supreme Court decided the city

________________ use eminent domain and take the property from the landowners.

(a) 5th; could

(b) 5th; could not

(c) 14th; could

(d) d. 14th; could not

Essay Questions

You Be the Judge: WRITING PROBLEM

1. Scott Fane was a CPA licensed to practice in New Jersey and Florida. He built his New Jersey

practice by making unsolicited phone calls to executives. When he moved to Florida, the Board of

Accountancy there prohibited him (and all CPAs) from personally soliciting new business. Fane sued.

Does the First Amendment force Florida to forgo foreclosing Fane’s phoning? Argument for Fane:

The Florida regulation violates the First Amendment, which protects commercial speech. Fane was

not saying anything false or misleading, but was just trying to secure business. This is an

unreasonable regulation, designed to keep newcomers out of the marketplace and maintain steady

business and high prices for established CPAs. Argument for the Florida Board of Accountancy:

Commercial speech deserves—and gets—a lower level of protection than other speech. This

regulation is a reasonable method of ensuring that the level of CPA work in our state remains high.

Chapter 5 Constitutional Law 15

CPAs who personally solicit clients are obviously in need of business. They are more likely to bend

legal and ethical rules to obtain clients and keep them happy, and will lower the standards throughout

the state.

Answer: Fane wins. The Court held that the Florida statute violates the First Amendment. Laws

2. President George H.W. Bush insisted that he had the power to send American troops into combat in

the Middle East, without congressional assent. Yet before authorizing force in Operation Desert

Storm, he secured congressional authorization. President Clinton stated that he was prepared to

invade Haiti without a congressional vote. Yet he bargained hard to avoid an invasion, and ultimately

American troops entered without the use of force. Why the seeming doubletalk by both presidents?

Answer: The Constitution is unclear about the president’s power to use troops without a declaration of

3. In the landmark 1965 case of Griswold v. Connecticut, the Supreme Court examined a Connecticut

statute that made it a crime for any person to use contraception. The majority declared the law an

unconstitutional violation of the right of privacy. Justice Black dissented, saying, “I do not to any

extent whatever base my view that this Connecticut law is constitutional on a belief that the law is

wise or that its policy is a good one. [It] is every bit as offensive to me as it is to the majority. [There

is no criticism by the majority of this law] to which I cannot subscribe—except their conclusion that

the evil qualities they see in the law make it unconstitutional.” What legal doctrines are involved

here? Why did Justice Black distinguish between his personal views on the statute and the power of

the Court to overturn it?

Answer: The right of privacy is nowhere stated in the Constitution, and its enforcement is an

4. Gilleo opposed American participation in the war in the Persian Gulf. She displayed a large sign on

her front lawn that read, “Say No to War in the Persian Gulf, Call Congress Now.” The city of Ladue

prohibited signs on front lawns and Gilleo sued. The city claimed that it was regulating “time, place,

and manner.” Explain that statement, and decide who should win.

16 Unit 1 The Legal Environment

Answer: A government may regulate the time, place, and manner of speeches, marches, and so forth.

5. David Lucas paid $975,000 for two residential lots on the Isle of Palms near Charleston, South

Carolina. He intended to build houses on them. Two years later the South Carolina legislature passed

a statute that prohibited building seaward of a certain line, and Lucas’s property fell in the prohibited

zone. Lucas claimed that his land was now useless and that South Carolina owed him its value.

Explain his claim. Should he win?

Answer: His claim is based on the Takings Clause of the Fifth Amendment. The Supreme Court was

unable to make a final ruling because certain facts were unclear from the record. But the Court stated

Discussion Questions

1. Return to the opening scenario and the Citizens United case. Is political advertising purchased by

corporations appropriate? Do you agree with the five members of the Supreme Court who voted to

allow it, or with the four who dissented and would have drawn distinctions between free speech by

individuals and organizations? Why?

2. ETHICS — Is political advertising by a nonprofit political organization like Citizens United any more

or less appropriate than advertising by for-profit corporations like the one described in the opening

scenario? If you were a board member in the opening scenario, which (if any) of the three ads would

you vote to authorize?

3. Consider the “tea party” movement. Do you believe that the federal government should be able to

create whatever laws it deems to be in the country’s best interests, or do you believe that individual

states, like Florida and California, should have more control over the laws within their own borders?

4. This chapter is filled with examples of statutes that have been struck down by the courts. A Texas law

banning flag burning was rejected by the Supreme Court, as was a Louisiana death penalty statute.

The Affordable Healthcare Act has been voided by two lower court judges, and the Supreme Court

may or may not agree with the action.

Chapter 5 Constitutional Law 17

Do you like the fact that courts can void laws that they determine to be in violation of the

Constitution? Or is it wrong for appointed judges to overrule “the will of the majority” as expressed

by elected members of Congress and state legislatures?

5. Gender discrimination currently receives “intermediate” 14th Amendment scrutiny. Is this right?

Should gender receive “strict” scrutiny as does race? Why or why not?

Bonus Exam Strategy:

Question: Exotic Showgirls is an adult entertainment club that wants to open in the business district in the

Strategy: This question is a First Amendment issue. Nude dancing is protected speech, and the

government is passing a law that seems to prohibit that speech. Even if the speech is protected, the

government can pass a law regulating the time, place, and manner of that speech, but not prohibit the

speech itself.

Result: The state action is clear: the government passed a law affecting speech. However, here, the law