Constitutional Law for Criminal Justice, Fourteenth Edition
by Jacqueline R. Kanovitz
Student Self-Assessment & Study Guide
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 1
History, Structure, and Contentof 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.
3.Rights guaranteed by the first 10 amendments to the Constitution, known as the Bill of Rights.
4.Protections afforded by the Fourteenth Amendment due process and equal protection clauses.
5.Our judicial system and how cases raising constitutional questions reach the United States Supreme Court.
6.Why it is important for police to understand the Constitution and conform to its dictates.
7.Basic concepts that provide a foundation for subjects covered in future chapters.
Student Review Questions
1.Why was the central government established under the Articles of Confederation unworkable? (§1.3)
2.When the Constitution was submitted to the states for ratification, three 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.
____d.Establishes the Judicial Branch.
____e.Establishes the Legislative Branch.
____f.Liststhe powers delegated to the federal government.
____g.Defines of the crime of treason.
____h.Lists the duties states owe one another.
____j.Lists the powers that the states are constitutionally forbidden to exercise.
4.Which 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 the Article III?(§1.7)
5.What can Congress do if the Supreme Court hands down a decision interpreting the Constitution in a way that Congress deems wrong? (§1.7)
6.How does the Constitution spell out the division of powers between the federal government and the states? (§1.8)
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)
10.The Constitution not only enumerates the powers delegated to the federal government, it also specifically limits the powers of the states. What five powers are state governments specifically prohibited from exercising? (§1.10)
11.What is an ex post facto law? What is a bill of attainder? Which article prohibits ex post facto laws? Bills of attainder? (§1.10)
12.What is the constitutional basis for the doctrine of preemption? (§1.11)
13.When the first Congress met, legislation was introduced to add a bill of rights. Why was this action necessary so soon after the Constitution was adopted? (§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
____ e.Right to a jury trial
____ f.Protection against compulsory self-incrimination
____ g.Protection against unreasonable searches and seizures
____ h.Protection against the issuance of warrants without probable cause, supported by oath or affirmation, particularly describing the place to be searched or the persons or things to be seized
____ i.Protection against double jeopardy (i.e., being tried more than once for the same offense)
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, l.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)
19.What level of scrutiny do courts use to review laws that distinguish between classes of citizens based on: (a) their gender, (b) race, (c) age? (§1.16)
20.A person convicted of a state criminal offense who believes that his federal constitutional rights were violated may seek United States Supreme Court review through one of two routes. What are these routes? Trace the steps that must be taken to reach the United States Supreme Court through each of these routes. (§1.17).
21.What five consequences may ensue from a police officer’s violation of a citizen’s constitutional rights? (§1.17)
Multiple-choice Questions
(The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)
1.Article I of the United States Constitution:
a.contains the supremacy clause
b.protects freedom of speech
c.makes the President commander and chief of the armed forces
d.grants Congress the power to levy taxes.
2.Article I of the U.S. Constitution does all following EXCEPT:
a. establishes the Senate and House of Representatives
b.outlines the powers of Congress in domestic and foreign affairs
c.specifies the manner of Impeachment
d.establishes the method of amending the Constitution.
3.Article II of the United States Constitution:
a.establishes the powers of the President
b.guarantees the right to bear arms
c.guarantees that the federal government will not quarter troops in private homes
d.lists the duties state owe one another.
4.Under the Constitution, states are prohibited from doing all of the following, except:
a.laying duties on exports, without the consent of Congress
b.entering into treaties
c.passing ex-post facto laws
d.conducting background checks before allowing citizens to purchase handguns
5.Under our federal system of governments, states haveprimary authority to:
a.enact bankruptcy laws
b.enact zoning laws
c.arrest undocumented workers who are illegally present in that state.
d.punish counterfeiting
6.The Bill of Rights:
a. was adopted by the colonists in 1776.
b.declares that no state shall deny any person due process of law.
c.was proposed by the First Congress to fulfill pledges made to secure ratification.
d.guarantees states protection against internal resurrection.
7.Protection against compulsory self-incrimination is guaranteed by the:
a.Third Amendment
b.Fourth Amendment
c.Fifth Amendment
d.Sixth Amendment
8.The right to assistance of counsel is guaranteed by the:
a.Third Amendment
b.Fourth Amendment
c.Fifth Amendment
d.Sixth Amendment
9.The Fourteenth Amendment to the Constitution was passed in the aftermath of which war?
a.Revolutionary war
b.War of 1812
c.Civil War
d.Spanish American War
10.The Fourteenth Amendment does all but which one of the following:
a. makes most of the Bill of Rights applicable to the States
b.abolishes slavery
c.protects fundamental rights
d.guarantees procedural due process
11.The Supreme Court has held all of the following to be a fundament right except.
a.the right to marry a person of the same sex
b.the right to forego life-sustaining treatment
c.the right to practice birth control
d.the right to terminate an unwanted pregnancy.
True/False Questions
12.The Articles of Confederation created a strong federal government.
a. True
b.False
13.The Bill of Rights is a declaration of the rights that citizens have against each other.
a.True
b.False
14.The U.S. Constitution is divided into seven parts called Articles.
a.True
b.False
15.The powers reserved to the states are called police powers.
a.True
b.False
16.Congress cannot use the taxing power toshape decisions on matters that it could not directly regulate.
a.True
b.False
17.Incorporation of a right protected by the Bill of Rightsinto the due process clause of the 14th Amendment means that states must afford the same or greater protection than the Constitution requires for the federal government.
a.True
b.False
18.Habeas corpus is a remedy that allows prisoners whose constitutional rights were violated to appeal their conviction directly to the Supreme Court in order to secure release from an unconstitutional confinement.
a.True
b.False
19.The Commerce Clause empowers the federal government to enact any laws that are necessary and proper to protect the health, safety, and welfare of the American people.
a.True
b.False
20.The equal protection clause requires strict scrutiny for laws that distinguish between individuals based on their gender.
a.True
b.False
21.The ratification process was complete and the Constitution went into effect in 1791.
a.True
b.False
22.The Fourteenth Amendment due process clause prohibits the states from discriminating on the basis of race, religion, or national origin.
a.True
b.False
23.Constitutional Amendments must be ratified by three-fourths of the states to become part of the Constitution.
a.True
b.False
ANSWERS:
1. d10. b19. b
2. d 11. a 20. b
3. a12. b21. b
4. d13. b 22. b
5. b14. a23. a
6. c15. a
7. c16. b
8. d17. a
9. c18. b
Chapter 2
Freedom of Speech
Objectives
The focus of this chapter is on 10 words found in the First Amendment: “Congress shall make no law abridging the freedom of speech.” These 10 words are extremely important to American citizens. The main goal of this chapter is to equip students to recognize when citizens are engaged in activity that falls within the purview of the First Amendment and, if so, to be thoroughly knowledgeable of when they can arrest citizens for what they say and when they can arrest citizens for what they do. To this end, students should emerge with a solid understanding of the following matters:
1.The broad range of activities regarded as “speech” under the First Amendment.
2.When restrictions on speech content are allowed. This requires a thorough understanding of the five topics that are not protected by the First Amendment: (1) obscenity, (2) child pornography, (3) fighting words, (4) speech integral to criminal conduct, and (4) incitement to violence or other unlawful activity.
3.When police officers may consider speech content in making enforcement decisions. This also requires a thorough understanding of the five speech topics that are not protected by the First Amendment.
4.Permissible regulation of conduct associated with speech (such as parades, pickets, demonstrations, marches, hand billing, leafleting, etc.)
Student Review Questions(Answers are given at the end for questions that have asterisks beside them.)
1.What freedoms, in addition to freedom of speech, are mentioned in the First Amendment? (Study the full text of First Amendment in the Appendix)
2.“Speech” has an expansive definition for First Amendment purposes. List as many endeavors as you can thatinvolve “speech.” (§2.3)
3.What is necessary for mute conduct to be considered symbolic speech? Provide examples of conduct that qualifies. (§§2.3-2.4)
4.State the O’Brien test for when laws regulating conduct can be applied to persons engaged in speech. (§2.4)
5.Why did the Supreme Court find the Texas flag desecration statute unconstitutional in Texas v. Johnson? (§2.3)
6.What does phrase “marketplace of ideas” mean? (§2.5)
7.What categories of speech have been excluded from First Amendment protection? What reason has the Supreme Court given for their exclusion? What showingwould be necessary to persuade the Supreme Court to exclude another category? (§§2.5-2.9).
8.What speech topics carry limited First Amendment protection? (§§2.5. 2.11, 2.12)
9.When may police consider speech content in making enforcement decision? (§§2.5-2.9)
10.State the legal definition of obscenity. What case established this test? (§2.6)
11.What is child pornography? (§2.6)
12.What is necessary for a work to be considered “child pornography” that it not required for it to be considered “obscene”? What is necessary for a work to be considered “obscene” that is not required for it to be treated as“child pornography?”(§2.6)
13.Why are special procedures needed for obscenity searches and seizures? (§2.6)
14.State the constitutional test for “fighting words.”Give several examples of words which, if spoken in a personal confrontation, would be considered fighting words? (§2.7)
15.Why are insults and obscenities directed at police officers seldom treated as “fighting words”? (§2.7)
16.State the test for when speech is punishable as a “true threat?” (§2.8)
17.State the test for when speech advocating violence or other unlawful activity is punishable? What case established this test? (§2.9)
18.What is the proper response for police when a hostileaudience threatens a breach of the peace at a First Amendment gathering? (§2.9)
.
19.What is hate speech? What degree of protection--full, limited, or none—does hate speech enjoy? Can legislatures make it a crime to kill a person because of the person’s race, religion or sexual orientation? Can legislatures provide enhanced punishments for persons who select their victims because of their race, religion, or sexual orientation?(§2.10)
20.When is burning a cross protected by the First Amendment? When it is not protected? (§§ 2.8, 2.10; Virginia v. Black(Part II)).
21.A police officer arrested a woman for shoplifting. As he was taking her into custody, she snarled at him: “You f——ing son of a bitch!” Can the officer charge her with disorderly conduct for using profanity? (§2.11)
22.What role does “forum analysis” play in First Amendment dispute resolution? (§2.13)
23.Give at least four examples of locations regarded as public forums? (§2.14)
24.Give at least four examples of locations are regarded as nonpublic forums? (§2.14)
25.What requirements must restrictions on speechin nonpublic forumssatisfy to be valid? (§2.14)
26.What requirements mustrestrictions on the time, place, or manner using public forums for speech satisfy to be valid? (§2.14)
27.What requirementsmustpermit ordinances satisfy to be valid? (§2.15)
*28.Classify following locations as a public forum or a nonpublic forum and determine whether the regulation is valid. (§§2.14-2.16).
a.An ordinance prohibiting begging in municipal bus stations?
b.An ordinance outlawing begging anyplace in the city?
c.An ordinance prohibiting attachment of signs and posters to municipal lampposts and fire hydrants.
d.An ordinance prohibiting excessively loud noises in front of churches and hospitals.
e.An ordinance that prohibits display of signs within 500 feet of a foreign embassy that are critical of the foreign government.
f.An ordinance that prohibitsdistributing handbills in parks.
g.An ordinance that outlaws display of yard signs in residential neighborhoods.
h.An ordinance that requires that applications for a permit to hold a rally in a park be made 30 days in advance.
i.An ordinance that vests discretion in the administrator to refuse a permit to hold a rally“to prevent riots, disturbances or disorderly assemblage.”
29.There are three kinds of statutes that police should never use to make an arrest in a context involving speech, even when the speaker’s conduct is not protected by the First Amendment. Identify them. (§2.17)
ANSWERS:
28. a. Nonpublic forum/valid
b.Public forum/invalid. Laws that prohibit speech in a public forum are invalid
c.Nonpublic forum/valid
d.Public forum/valid time, place, and manner restriction on speech
e.Public forum/invalid. This ordinance cannot be sustained as a reasonable restriction on the location of speech because it restricts speech based on the content and, worse still, based on the viewpoint.
f.Public forum/ invalid because it prohibits a medium of expression that is important to people and groups with limited funds.
g. A person’s front yard is technically neither a public forum nor a nonpublic forum. It’s private property. In City of Ladue v. Gilleo(Part II), the Supreme Court determined that held that the ordinance was invalid because it foreclosed use of a unique medium of expression that is important to persons with limited funds.
h.Public forum. Ordinances that require a permit to use a public forum may not impose long waiting periods.
g.Public forum/invalid. Permit ordinances may not delegate discretion to consider the applicant’s identity, message, or any assumptions or predictions as to the amount of hostility that may be aroused in the public by the content or message conveyed.
Multiple-Choice Questions
(The student multiple-choice questions test the same information that will be covered on the real exam, though questions will not be same. Consequently, it will benefit you to figure out why your answers do not match the answer key for answers that do not.)
1.The First Amendment mentions several rights in addition to freedom of speech.Among themis the right to:
a.privacy
b.bear arms
c.not to have soldiers quartered in one’s home
d.to petition Congress for a redress of grievances
2.To be excluded from protection under the “fighting words” exception, the words must be:
a.personally abusive or insulting
b.spoken in a face-to-face encounter
c.uttered under circumstances inherently likely to provokethe listener to respond with violence
d.all of the above
3.Which of the following is an example of constitutionally protected symbolic speech?
a.forming a human barricade to block entrance to an abortion clinic
b.wearing a hooded white robe at a Ku Klux Klan rally
c.burninga flag flying over a post office
d.none of the above
4.Several categories of speech lack First Amendment protection. They include:
- statements that are knowingly false
- profanity
- hate speech
- none of the above
5.The First Amendment does NOT protect:
a.statements calculated to arouse anger, resentment, or hatred in others based on race, religion, or sexual orientation
b.pictures that depict children engaged in sexually explicit conduct
c.panhandling
d.any of the above