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Law Business and Society 11Th Edition Mcadams Solutions Manual Full Chapter PDF
Law Business and Society 11Th Edition Mcadams Solutions Manual Full Chapter PDF
Law Business and Society 11Th Edition Mcadams Solutions Manual Full Chapter PDF
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CHAPTER 5
Constitutional Law and the Bill of Rights
Chapter Goals
Essentially, this chapter is a brief exploration of the primary intersections between the Bill of Rights
and the practice of commerce in the United States. The chapter primarily focuses on freedom of
religion, freedom of speech, search and seizure, takings, due process, and equal protection. The
cases and readings raise, for the most part, rather unusual situations. The goal is not so much to
master the law of these situations as it is to afford students a general understanding of and respect for
the Bill of Rights, and particularly for its role in the marketplace. Therefore, the instructor's major task
here may be to infuse the student with a bit of awe for the principles underlying the Bill of Rights and
for the power of a document to hold together the fundamental values of an entire nation.
Note that the Constitution is introduced in this chapter, but the discussion of the Commerce Clause
and its impact upon business is deferred to Chapter Eight.
Chapter Outline
The U.S. Constitution was based on the 1778 Articles of Confederation. The Articles contemplated a
“firm league of friendship,” but each state was to maintain its “sovereignty, freedom, and
independence.” The Articles soon proved faulty. Seven years of war had basically bankrupted the
colonies. As a result of this turmoil, and in an effort to strengthen the Articles, the Constitutional
Convention was called to order in Philadelphia on May 25, 1787.
The decision to convene the Convention may have been a first in world history in that the state leaders
themselves acknowledged that the existing federal government was faulty, the citizenry calmly talked
things over, violence was avoided, and the decision was made to go forward with the Convention. All
55 delegates, the Founding Fathers, were white males, and most of them were wealthy landowners,
but they were also immensely talented with a wide range of interests and experiences. The delegates
agreed that a stronger central government was needed, but they were split on just how far the notion
should go.
On September 17, 1787, the great document, one of the most influential expressions in human history,
was formally signed. Following bitter disputes in some states, the Constitution was ratified and the new
government haltingly moved forward under the leadership of George Washington and John Adams.
[For links to national constitutions around the globe, see http://confinder.richmond.edu/]
Addressing one of the most contentious questions in American constitutional history, the U.S.
Supreme Court in 2008 ruled 5–4 that the Second Amendment guarantees individual Americans a
fundamental right to bear arms. The decision struck down a District of Columbia law that effectively
banned handgun possession. Lower court decisions are thus far split on the crucial question of
whether states may lawfully bar or strictly limit carrying guns in public for self-defense. Recent mass
murders in a Wisconsin Sikh temple, in an Aurora, Colorado, movie theater, and at Sandy Hook
Elementary School in Newtown, Connecticut, have energized the national debate over gun control.
The Preamble identifies certain goals for American society, such as unity (among the various states),
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Chapter 05 - Constitutional Law and the Bill of Rights
justice, domestic tranquility (peace), defense from outsiders, increasing general welfare, and liberty. The
Constitution serves a number of broad roles:
• It establishes a national government.
• It controls the relationship between the national government and the government of the states.
• It defines and preserves personal liberty.
• It contains provisions to enable the government to perpetuate itself.
Author Mark Kurlansky argues that the Founding Fathers’ great accomplishment is losing its luster:
I am sick and tired of the founding fathers and all their intents. The real American question of our
times is how our country in a little over 200 years sank from the great hope to the most backward
democracy in the West. Few informed people look to the United States anymore for progressive
ideas. We ought to do something. Instead, we keep worrying about the vision of a bunch of sexist,
slave-owning 18th century white men in wigs and breeches.
The U.S. Constitution divides governmental power between the federal and state governments.
Congressional authority is formally limited to certain enumerated powers (Article I, Section 8), such
as the authority to regulate commerce. Certain constitutional checks or restraints, including the Bill
of Rights, limit how far Congress can reach even within its enumerated powers.
In the landmark 1819 Supreme Court decision, McCulloch v. Maryland, the U.S. Supreme Court
interpreted the Necessary and Proper Clause (Article I, Section 8) to afford Congress those implied
powers necessary to execute the enumerated powers, thus achieving a workable national
government. The McCulloch court also ruled that the Constitution’s Supremacy Clause nullifies
state action that conflicts with federal law.
Massive federal intervention in health care, to combat the “Great Recession,” to deal with the
subprime mortgage crisis, and to reform banking practices generated renewed pleas for restraints
on an “overreaching” federal government. The Tea Party movement emerged in 2009, and a
heated national debate has ensued about the appropriate balance between individual rights as
expressed in the free market versus an interventionist federal government designed to correct
market failures and protect those least able to care for themselves.
C. Separation of Powers
As a further means of controlling the power of government, the Constitution sets up the three
federal branches and creates mechanisms for them to act as checks and balances on each other.
The President, Congress, and the courts each have specialized areas of authority, as provided for
by the Constitution. The result is a system of separation of powers designed to prevent too much
authority from residing in any one branch.
The role of the judiciary has been a matter of particular controversy in recent years. The historic
1803 Marbury v. Madison decision was the first time the Supreme Court had declared an act of
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Chapter 05 - Constitutional Law and the Bill of Rights
Congress unconstitutional, and the decision also established the principle of judicial review. [For
the National Constitution Center, see http://www.constitutioncenter.org]
D. Federalism
The United States government is built on federalism principles; that is, the Constitution provides for
shared power among national, state, and local governments. A primary role of the Constitution is to
balance central federal authority with dispersed state power.
The American Civil War was provoked in part because of differing conceptions of federalism.
Southerners held the view, labeled states rights, that each state was entitled to make its own policy
decisions about crucial matters such as slavery, while Northerners favored a strong central
government.
The Supreme Court in the mid-1990s revisited the federal-state balance of power with some
decisions curbing federal authority. The new federalism expressed itself in a landmark 2013 U.S.
Supreme Court decision, Shelby County v. Holder, that challenged the constitutionality of the
federal Voting Rights Act of 1965 which, among other things, subjected nine mostly southern states
to federal supervision of their election processes because of a long history of discrimination against
minorities in voting practices.
The Constitution, in particular, the Commerce Clause profoundly shape the practice of American
business. The Bill of Rights protects one’s personal freedoms (speech, religion, and more) from
encroachment by the federal government. Furthermore, the Supreme Court has ruled that the Due
Process Clause of the 14th Amendment, which is directed at the states, absorbs or incorporates
those fundamental freedoms and protects them against intrusion by state governments. [For the
“Guide to Law Online,” prepared by the U.S. Law Library of Congress, see
http://www.loc.gov/law/help/guide.php]
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
These few words constitute one of the most powerful and noble utterances in history. Much of the
magnificence that people often associate with America is embodied in the protections of the First
Amendment. [For the First Amendment Center, see http://www.firstamendmentcenter.org.]
A. 1. Freedom of Religion
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Chapter 05 - Constitutional Law and the Bill of Rights
Broadly, the idea of the First Amendment is to maintain a separation between church and state.
The precise boundary of that separation, however, has become one of the more contentious social
issues in contemporary life. [For the Freedom Forum database on the First Amendment, see
http://www.freedomforum.org.]
North Carolina state legislators introduced a resolution in 2013 asserting the state has a right to
declare an official state religion (presumably Christianity). The bill was quickly withdrawn by the
state Speaker of the House. The bill’s sponsors employed reasoning that has gained some
currency on the right, namely that the Establishment Clause applies only to the federal
government, not to the states. A 2013 national poll found that 34 percent of Americans would favor
establishing Christianity as the official state religion in their own state, and 32 percent favor a
constitutional amendment that would make Christianity the nation’s official religion.
Addressing two long-standing sources of constitutional ferment, three-judge panels of the Ninth
U.S. Circuit Court of Appeals in 2010 ruled that the use of the words “Under God” in the Pledge
of Allegiance and “In God We Trust” on the U.S. currency do not violate the separation of
church and state principles of the First Amendment.
The University of California Hastings College of the Law refused to recognize a student
organization, Hastings said the group’s faith-based rules discriminate against gays, lesbians,
and others who do not share the group’s religious beliefs. The organization’s rules require
members to pledge they will not engage in a “sexually immoral lifestyle” including “all acts of
sexual conduct outside God’s design for marriage between one man and one woman.” the
Christian Legal Society (CLS). CLS challenged Hastings’s policy as a violation of the member
students’ First Amendment rights to freedom of religion, speech, and association. The U.S.
Supreme Court, by a 5–4 margin, ruled in 2010 that the students’ constitutional rights were not
violated in that the university policy was a reasonable, viewpoint-neutral condition on access to
student recognition in a public university.
France, in 2011, began enforcing its new law forbidding, with some exceptions, the wearing of a
garment in public that hides the wearer’s face. The law was promoted as a matter of security
and of cultural assimilation while it was assailed as an affront to the Muslim faith and a political
move designed to appeal to voters worried about threats to traditional European values and
culture. Following a little more than one year of experience with the veil law, France reported
that 425 women had been fined $188 each, and 66 others had received warnings.
B. 2. Freedom of Speech
Freedom of speech is the primary guarantor to the American approach to life. Americans believe
that the free expression of ideas is the most likely path to the best ideas. Americans believe in a
marketplace of ideas just as they believe in a marketplace of goods.
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Chapter 05 - Constitutional Law and the Bill of Rights
Freedom of speech is not absolute. The state cannot regulate the content of speech. However, the
state does have greater authority to regulate context of speech if that regulation is necessary to
preserve compelling state interests. [For freedom of speech links, see http://gjs.net/freetalk.htm.]
What Is Expression?
Expression is not limited to oral and written utterances. Freedom of speech clearly extends to
messages not communicated with words. In Tinker v. Des Moines School District, one of the
leading free speech cases in American history, the U.S. Supreme Court found First Amendment
protection for the wearing of a black armband to a high school as a protest against the Vietnam
War where no evidence of disruption was presented.
A tool frequently employed by the courts is the balancing test, where the judges must try to
weigh the interests of the state against the expressive rights of the individual.
One of the most controversial Supreme Court cases of recent years involved the Topeka,
Kansas, Westboro Baptist Church and its practice of protesting at the funerals of American
soldiers killed in service. Pastor Fred W. Phelps and his small congregation, most of whom
are family members, contend that battlefield deaths are God’s punishment for America’s
sins, including homosexuality. The funeral protests include signs displaying messages such
as “Thank God for dead soldiers,” and “God Hates Fags.”
Pastor Phelps and his family picketed the 2006 funeral of Matthew Snyder, a Marine who
had been killed in Iraq. Snyder’s father sued Phelps and Westboro and won a $10.9 million
damage award. That decision was reversed on appeal, and the case reached the U.S.
Supreme Court in 2011 where the church’s First Amendment freedom of expression
argument prevailed by an 8–1 margin. The Court’s unpopular decision affirmed the
longstanding position that the government ordinarily cannot restrict speech based on its
content, however tasteless or valueless.
Context: Panhandling
The context of the begging, that is, when, where, and how the begging is conducted may
affect its constitutionality. The content of the message (begging) is not restricted, but for
compelling reasons, authorities might lawfully shift the time, place, or manner of the
expression.
Joseph Frederick was across the street from his school with many other students watching,
with school permission, an Olympic torch parade when Frederick, a Juneau, Alaska, high
school senior, and some friends unfurled a large banner reading “Bong Hits 4 Jesus.” The
banner was a prank designed to attract attention from television cameras. The school
principal, Deborah Morse, told Frederick to lower the banner. He refused, and he was
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Chapter 05 - Constitutional Law and the Bill of Rights
suspended from school. Frederick sued, and the case reached the U.S. Supreme Court.
[See Deborah Morse v. Joseph Frederick, 127 S.Ct. 2618 (2007); and Mark W. Cordes,
“Making Sense of High School School Speech after Morse v. Frederick,” 17 Wm. & Mary Bill
Rts. J. 657 (2009)]
The First Amendment generally shields public-sector workers’ off-the-job expressions when
speaking as citizens about matters of public concern. Nonetheless, employer restrictions
necessary to effective operation of the government enterprise may sometimes be permissible,
as illustrated by the 2008 dismissal of Crystal Dixon, an African-American woman and the
University of Toledo’s interim associate vice president for human resources. In 2012, the Sixth
Circuit Federal Court of Appeals ruled against Dixon, reasoning that the university’s interest in
efficient, effective operations outweighed Dixon’s First Amendment rights since she was a
university policy maker who spoke on a policy related to her position.
Government employees’ free speech rights are substantially limited on the job. Los Angeles
Deputy District Attorney Richard Ceballos lost his job in a whistle-blowing episode. Ceballos
sued; the U.S. Supreme Court in 2006 ruled that government employees who speak out
“pursuant to their official duties” are speaking as employees, not citizens, and therefore are not
protected by the First Amendment. In 2014, the United States Supreme Court clarified that
public workers act as citizens when they testify under oath; therefore, the First Amendment
protects them from retaliation based on their testimony.
Many universities have “speech codes” of one form or another designed to stop hate speech,
harassment, bullying, and other offensive conduct. In 2013, the federal Departments of Justice
and Education issued a “blueprint” for colleges nationwide that, according to critics, redefines
sexual harassment to include “unwelcome conduct of a sexual nature.” The federal blueprint
and campus speech codes are designed to maintain safe, civil learning environments that
embrace diverse cultures, but critics argue that the restraints are unconstitutional and that they
amount to a demand for politically correct speech, that is, speech that avoids hurtful words.
Yale
Complaints of a hostile sexual environment and intimidation of female students caused Yale
University in 2011 to impose a five-year ban on all campus activities for a prestigious
fraternity that counts both Bush presidents among its alumni. Following a federal
investigation, Yale agreed to changes in its harassment policy and reached a settlement that
did not involve disciplinary action.
Maricopa CCC
Following a day designated to show support for gays and lesbians at her high school in
Naperville, Illinois, a student wore a T-shirt to school displaying the expression “Be Happy,
Not Gay.” The school’s Dean forbade the expression at the school. The Seventh Circuit U.S.
Circuit Court of Appeals reasoned that the forbidden expression did not constitute “fighting
words” or some other recognized First Amendment exception and ruled that the students
had a right to wear the shirts and express their opinions. Zamecnik and Nuxoll v. Indian
Prairie School District, 636 F.3d 874 (7th Cir. 2011).
Ole Miss
George Mason
Many First Amendment scholars believe the correct antidote to hate speech is simply more
speech. The decision that follows demonstrates the First Amendment’s role in resolving
claims of racism, sexism, and general insensitivity springing from a George Mason University
fraternity’s “ugly woman contest.” [For a vigorous critique of campus “political correctness,”
see the Foundation for Individual Rights in Education at http://thefire.org/]
Legal Briefcase: IOTA XI Chapter v. George Mason University, 993 F.2d 386 (4 th Cir.
1993)
Commercial Speech
In 1942, the U.S. Supreme Court ruled that commercial speech was not entitled to First
Amendment protection. Subsequently the Court changed its stance and extended First
Amendment rights to commercial speech, but those rights were much more limited than for
political speech. In more recent years, the Court has been gradually expanding protection for
commercial speech.
Corporate/Commercial Speech
The U.S. Supreme Court’s controversial 2010 Citizens United decision allows corporations to
spend more freely on elections (See Chapter 3). In the late 1970s, Justices William
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Chapter 05 - Constitutional Law and the Bill of Rights
Rehnquist and Byron White had described corporations as “creatures of the law” possessed
of wealth-creation powers but not entitled to the rights possessed by voters. By contrast, the
Citizens United majority described corporations as “associations of citizens” deserving of
free speech rights in the manner of individuals.
The federal Food and Drug Administration (FDA) recently issued rules requiring, among
other things, graphic antismoking warnings covering the top half of the front and back of
cigarette packs. Tobacco companies challenged the warnings as violations of their freedom
of expression rights. One federal court of appeals upheld the constitutionality of the rules, but
another struck them down. The FDA decided to rewrite its rules in an effort to resolve the
First Amendment issues.
Animal Cruelty
The Supreme Court in 2010 supported the First Amendment rights of a business selling
videos depicting animal cruelty. Robert J. Stevens advertised and sold pit bull-related videos
showing dog fights and dogs attacking wild boar. Stevens was criminally indicted. Stevens
moved to dismiss the indictment saying that the statute violated his First Amendment right to
free speech. The Supreme Court, in an 8–1 ruling agreed with Stevens.
In an illustration of the balance of powers concept, Congress and President Obama quickly
approved new federal legislation designed to attack certain animal cruelty videos while
meeting constitutional requirements. The Animal Crush Video Prohibition Act of 2010 bans
the creation and distribution of obscene animal torture videos.
Legal Briefcase: Bad Frog Brewery v. New York State Liquor Authority 134 F.3d 87 (2d
Cir. 1998)
Two crucial inquiries in search and seizure cases are whether a search has, in fact, occurred (as in the
Jones and Jardines cases) and whether the search violated the subject’s reasonable expectation of
privacy. The most controversial dimension of Fourth Amendment interpretation is the exclusionary
rule, which provides that, as a matter of due process, evidence secured in violation of the Fourth
Amendment may not be used against a defendant at trial. While a very effective device for
discouraging illegal searches, seizures, and arrests, also from time to time has the effect of freeing
guilty criminals. The U.S. Supreme Court restricted the exclusionary rule in 2006 holding that the
government need not forfeit evidence collected in constitutionally improper “no knock” searches.
In general, a search warrant issued by a judge is necessary to comply with the Constitution in making
a narcotics search. A warrantless search is permissible, however, where reasonable, as in association
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Chapter 05 - Constitutional Law and the Bill of Rights
with an arrest or where probable cause exists to believe a drug-related crime has been committed but
circumstances make securing a warrant impracticable.
The Supreme Court restricted the exclusionary rule in 2006 holding that the government need not
forfeit evidence collected in constitutionally improper “no knock” searches. Hudson v. Michigan, 126
S.Ct. 2159 (2006).
1. Vehicle Searches—for nearly 30 years, police officers have commonly understood that lawfully
arresting an occupant of a vehicle confers the right to search the passenger compartment of that
vehicle. In a 2009 decision, Gant v. Arizona, the U.S. Supreme Court significantly diminished that
authority by ruling that such searches are permissible in only two circumstances:
• When the individual being arrested is close enough to the vehicle to reach in for a weapon or
evidence
• When the officer can reasonably believe that the vehicle contains evidence relevant to the crime
of arrest
2. Cell Phones—Court decisions supporting cell phone searches have relied on well-settled Supreme
Court decisions allowing police to conduct searches incident to lawful arrest. The arrestee’s person
and immediate area of control including any closed containers in possession of the suspect may be
examined by the police in order to insure their safety and to prevent the destruction of evidence.
3. Testing Students—an honor student, Lindsay Earls, in rural Tecumseh, Oklahoma, challenged a
mandatory random urinalysis drug-testing the program as a violation of her Fourth Amendment rights.
The U.S. Supreme Court reasoned that those participating in extracurricular activities are subjected to
many rules and restrictions that diminish their expectation of privacy, and the Court said the program
is a health and safety measure rather than an assault on personal privacy.
4. Voyeurism and the Surveillance Society—a 2002 Washington case held that there is no
“reasonable expectation of privacy” in a shopping mall and, thus, convictions of two men who had
taken pictures up the skirts of some women were overturned. A federal law, the Video Voyeurism
Prevention Act (limited to federal jurisdiction/property), and a number of state laws have expanded
protection against photographic voyeurism, but those laws may not meet constitutional requirements.
5. DNA Samples—DNA testing is a valuable tool in prosecuting criminals and in exonerating the
innocent, but DNA collection by the government of suspicionless persons who are presumed innocent
at the time raises significant privacy issues. Over half of the states collect DNA upon arrest for serious
crimes. [For an overview of privacy issues, see http://epic.org/]
The Miami-Dade Police Department received a tip that the residence of Joelis Jardines was being
used to grow marijuana. A drug-sniffing dog was taken to the door of the home. The dog signaled the
presence of marijuana, a search warrant was obtained, and a search discovered marijuana growing in
the house. Jardines was arrested.
A. Business Searches
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Chapter 05 - Constitutional Law and the Bill of Rights
Government tries to protect citizens from business hazards including pollution, defective products,
and unsafe workplaces as well as business crimes such as fraud and bribery. To do so,
government agents often want to enter company buildings, observe working conditions, and
examine company books. The Warrant Clause of the Fourth Amendment protects commercial
buildings as well as private homes.
A. Takings—Eminent Domain
The Fifth Amendment prohibits the taking of private property for public use without just
compensation for the owner. In cases where owners do not want to sell, governments often use the
power of eminent domain to take private property for public uses such as building highways, bike
trails, and parks, while providing just compensation.
[For property rights analysis and updates as well as more on the Kelo story, see http://www.ij.org/].
B. Takings—Regulatory
The “Takings” clause is also at issue when the government does not take the property but rather
regulates it in a manner that deprives that property owner of some or all of its economic usefulness.
These regulatory takings, whether temporary or permanent, normally do not require government
compensation. Nonetheless, in recent years the courts have been more aggressive about requiring
just compensation for some regulatory takings. Three broad classes of such takings have emerged
in court decisions.
1. Total Takings—if a governmental body acts in a way that permanently takes all of the economic
value of a property or permanently physically invades the property, the taking requires just
compensation unless the government is (1) preventing a nuisance or (2) the regulation was
permissible under property law at the time of the purchase of the property.
3. Partial Takings—government may take part of a piece of property to expand a road, install a
bike path, and so on. These are neither total takings nor exactions, but rather fall into a case-by-
case analysis that, very briefly, considers the importance of the government’s goals and extent of
the burden on the property owner.
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Chapter 05 - Constitutional Law and the Bill of Rights
Government restraints on property development are not merely a modern imposition, as one learns
from the following description of a zoning law in the Byzantine Empire:
Next came the first zoning law for the beach. Coastal vistas were so cherished, and the
competition for them so keen, that by the sixth century the Emperor Justinian the Great was
compelled to pass an ordinance barring construction within 100 feet of the shore to protect sea
views.
Source: “The Beach: The History of Paradise on Earth,” by Lena Lencek and Gideon Bosker
A. Due Process
The Due Process clauses of both the Fifth Amendment (applicable to the federal government) and
the 14th Amendment (applying to the states) forbid the government to deprive citizens of life, liberty,
or property without due process of law.
Laws that arbitrarily infringe on fundamental personal rights and liberties such as privacy,
voting, and the various freedoms specified in the Bill of Rights may be challenged on due
process grounds. The purpose of the law must be so compelling as to outweigh the intrusion on
personal liberty or the law will be struck down.
Procedural due process means that the government must provide a fair procedure including
notice and a fair hearing before taking an action affecting a citizen’s life, liberty, or property. The
precise nature of procedural due process depends, however, on the situation.
A statute may violate due process rights if it is so vaguely written that the ordinary person
cannot understand it.
Afterword: The Fifth Circuit upheld Skilling’s conviction finding the honest services error was
“harmless” in that ample evidence unrelated to the honest services charge supported Skilling’s
conviction on 19 counts of securities fraud, conspiracy, insider trading and making false
representations. At this writing, Skilling is serving sentence in a Colorado prison, but an
agreement was reached to reduce his 24-year sentence by 10 years because of a mistake in
interpreting the federal sentencing guidelines. Skilling also agreed to give up about $42 million,
all of which will go to Enron fraud victims. The case now seems to be at an end, and Skilling
may depart prison as early as 2017.
B. Equal Protection
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Chapter 05 - Constitutional Law and the Bill of Rights
The 14th Amendment provides that no state shall “deny to any person within its jurisdiction the
equal protection of the laws.” The Due Process Clause of the Fifth Amendment has been
interpreted to provide that same protection against the power of the federal government.
Fundamentally, these laws forbid a government from treating one person (including a corporation)
differently from another without a rational basis for doing so. Most notably, the Equal Protection
and Due Process Clauses have played an enormous role in attacking discrimination (see Chapter
13), but they can also significantly influence routine business practice in many ways.
Trying to reduce the flow of university students into certain portions of the community, Ames, Iowa,
home of Iowa State University, passed a zoning ordinance that permitted only single-family
residences in specified areas. Under the ordinance, “family” was defined as any number of related
persons or no more than three unrelated persons. The Ames Rental Property Association
challenged the constitutionality of the ordinance.
Edie Windsor, an 83-year-old lesbian, struck an historic but not yet definitive blow for gay and
lesbian rights when she successfully sued the U.S. government to strike down Section 3 of the
federal Defense of Marriage Act (DOMA). Windsor sued because the government, consistent
with DOMA, did not recognize her 2007 marriage to Thea Spyer, her long-time partner, who
died in 2009. Windsor’s challenge succeeded when the U.S. Supreme Court in 2013 ruled that
Section 3 of DOMA was unconstitutional as a denial of equal protection and due process.
Although the Windsor decision struck down Section 3 of DOMA, it did not address Section 2,
which allows states to refuse to recognize same-sex marriages performed in other states.
At this writing in 2013, about 94 million Americans (nearly one-third of the population) live in
states that allow same-sex marriage. Worldwide about 585 million people (about 8 percent of
the global population) live in countries where same-sex marriage is lawful. Those numbers
represent extraordinarily rapid changes in American and global views of gay and lesbian
marriage, but the debate is far from settled.
Stop-and-Frisk
Judge Scheindlin did not order a halt to stop-and-frisk, which is an important law enforcement
tool if properly employed. She did appoint a monitor to ensure police compliance with remedies
including the use of body-worn cameras by some officers. The case is on appeal at this writing.
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Chapter 05 - Constitutional Law and the Bill of Rights
1. The First Amendment Center identifies topics of debate regarding the First Amendment such as
prayer in schools, flag-burning, hard-core music lyrics, tobacco advertising, hate speech,
pornography, and various forms of symbolic speech. It also notes the fundamental nature of the
First Amendment to ensure robust public debate and citizens’ freedom from officially prescribed
religious or political beliefs.
Student Projects
1. Find an article on the Internet that discusses or illustrates any of the rights contained in the Bill of
Rights being applied to a business or corporation. Identify the precise right at issue and which
amendment contains it. Should the business be treated as though it has that right?
2. Read the American Civil Liberties Union’s statement on workplace drug testing. (Go to
http://www.aclu.org/WorkplaceRights/WorkplaceRightsMain.cfm, select Drug Testing from the
right side navigational bar, and then select the link, “Privacy in America: Workplace Drug
Testing.”) Explain the ACLU’s position.
The ACLU argues that such testing is an invasion of privacy and often doesn’t lead to the desired
result—a drug-free on-the-job labor pool. The ACLU argues there are better tests for those in
safety-sensitive occupations.
Answers
1. The students could have a discussion based on this question. Students might be asked to read
the opinion in District of Columbia v. Heller, 128 S. Ct. 2783; 171 L. Ed. 2d 637 (2008) and
compare Scalia’s majority opinion with Stevens’ dissenting opinion to inform their opinion.
2. The students could have a discussion based on this question. In small groups, students might
assume the role of different individuals, groups or associations, such as the Washington D.C.
Mayor, the National Rifle Association, public safety officers, etc. and draft a statement responding
to the Supreme Court’s decision in the Heller case.
3. Students’ answers will vary. Some of them may say that this should not be allowed as it is
dangerous for everybody. Other students may be of the opinion that the constitutional right to
bear arms should apply everywhere. They may say that people are safer when they have guns to
protect themselves and that an armed bystander could put a stop to mass shootings. Source:
David Skorton and Glenn Altschuler, “Do We Really Need More Guns On Campus?” Forbes,
5-14
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in
any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Chapter 05 - Constitutional Law and the Bill of Rights
1. Students’ answers will vary. Some students may be of the opinion that the Constitution is out of
touch with contemporary times in failing to protect the right to travel, the probability of being
innocent, and the entitlement to food, education, and healthcare. They may opine that the
Constitution should be amended to include these rights. Source: Adam Liptak, “‘We the People’
Loses Appeal With People Around the World,” The New York Times, February 6, 2012.
[http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-around-the-
world.html?pagewanted=all&_r=0]
1. From a strict constructionist point of view, clearly the absence of an express grant of judicial
review authority can legitimately be construed to be an intentional omission. The University of
Missouri–Kansas City website, “Exploring Constitutional Conflicts” suggests a pair of additional
interpretations—“It is also possible that the framers thought the power of judicial review was
sufficiently clear from the structure of government that it need not be expressly stated. “[Another]
possibility is that the framers didn’t think that the issue would ever come up, because Congress
would never pass legislation outside of its enumerated powers.”
UMKC, citing James Madison’s notes, reports that only 11 of 55 delegates to the Constitutional
Convention expressed an opinion about the desirability of judicial review. Of that number, nine
were generally supportive and two were opposed.
2. Students’ answers will vary. A useful discussion approach might be to cite certain notable
Supreme Court decisions to ask the students whether those decisions furthered the cause of
justice and whether they would have been reached in the absence of judicial action. Consider the
Dred Scott decision striking down the Missouri Compromise (prohibiting slavery in parts of the
Louisiana Territory) and ruling that persons of African descent were not and could never be
citizens of the United States. Brown v. Board of Education declared state-mandated school
segregation unconstitutional. Roe v. Wade invalidated state laws forbidding abortion. District of
Columbia v. Dick Heller struck down the District of Columbia’s gun control law and affirmed the
constitutional right of citizens to have loaded handguns in their homes for self-defense. (See
Kevin Baine, “Making Law on the Court,” The Washington Post, June 9, 2009
[http://www.washingtonpost.com/].)
Answers to ‘The Constitution and the New Federalism’ Questions (p. 193)
1. Students’ answers will vary. Students may say that the following issues may arise—famers would
have to make changes that would be expensive, deal with animal welfare advocates, and so on.
Source: Marsha Mercer, “Interstate Egg Fight Erupts Over Cramped Hen Cages,” Stateline: The
Pew Charitable Trusts, November 4, 2014. [http://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2014/11/04/interstate-egg-fight-erupts-over-cramped-hen-cages]
5-15
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in
any manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
Another random document with
no related content on Scribd:
— Se vie hänetkin, ihan niin kuin lapsen.
*****
*****
*****
Mutta niin ylläpitävä kuin tämä toivo olikin, sisältyi siihen samalla
suunnaton pelko. Se oli ollut selvillä meille ennenkin, mutta sen
järkyttävä todellisuus kävi meille yhä selvemmäksi joka kerralla,
jolloin äärimmäisyyteen saakka jännitetyin mielin seurasimme
Suomen kautta palaavien sairasjunien ruhjoutuneita matkaajia.
— Mikä käsi?
— Molemmat.
*****
Hän oli ollut Boriksen luona niin kauan kuin se oli mahdollista. Kun
viimein yöhoitaja tuli käskemään häntä pois, oli aivan kuin he
uudelleen olisivat riistäneet Boriksen häneltä. Hän kumartui
rakkaansa puoleen ja kuiskasi: Boris, minun täytyy erota sinusta
tänä iltana, mutta sitte en tee sitä, en koskaan, en koskaan enää. —
Sitte hän vastustamattoman tunteen vaatimana lankesi polvilleen,
kietoi vielä kerran käsivartensa Boriksen ympärille ja toisti katse
hänen katseessaan heidän rakkautensa tunnussanat: "ilossa ja
murheessa, köyhyydessä ja rikkaudessa — kunnes kuolema meidät
eroittaa."
*****
— Äiti, äiti!
Entä jos hän nyt näkisi, minkälaisessa tilassa Ilja makaa täällä!
*****
Mitä tämä merkitsee? Missä hän on? Ja miksi täällä on näin paljon
ihmisiä? Eikö hän vasta ollut kotona juuri lähdössä sotaan. Hän luuli
sinä aamuna nousseensa aikaisemmin kuin kukaan muu. Mutta
äitikin oli jo pystyssä, Hän tulla kompuroitsi portaita ylös Iljan
huoneeseen, keppi oikeassa, terveessä kädessä tukemassa
halvauksen jälkeen horjuvaa astuntaa.
Niin, niin. Nyt Ilja muistaa kaiken. Se tapahtui juuri ennen hänen
lähtöään, ja nyt hän makaa sairaana sotavankina vieraalla maalla.
Mutta tännekin ulottuu tuo siunaus. Sen varassa hän on kestänyt
näihin asti, ja sen varassa hän vieläkin kestää. Hän tahtoo palkita
sen mitä on saanut sillä, että panee koko tahtonsa ja tarmonsa
liikkeelle parantuakseen. Sanotaanhan, että sielu vaikuttaa
ruumiiseen. Nyt hän tahtoo kokea sitä voittaakseen taudin.
*****
Meusche ei saanut nähdä sitä päivää. Mutta hän oli jättänyt työn ja
Haim Jankelin perinnöksi veljelleen.