MI Bar Constitutional Law 2 — Questions and Answers
Question 1: Under substantive due process, a right qualifies as 'fundamental' if it is:
- Mentioned explicitly in the Bill of Rights
- Deeply rooted in the Nation's history and traditions and implicit in ordered liberty (Correct answer)
- Recognized by a majority of states through statute
- Protected by a federal civil rights law
Correct answer: Deeply rooted in the Nation's history and traditions and implicit in ordered liberty
Fundamental rights under substantive due process are those deeply rooted in the nation's history and traditions and implicit in the concept of ordered liberty, triggering strict scrutiny.
Question 2: Under the Free Exercise Clause, a neutral law of general applicability that incidentally burdens religious practice is subject to:
- Strict scrutiny
- Intermediate scrutiny
- Rational basis review (Correct answer)
- No judicial review whatsoever
Correct answer: Rational basis review
Under Employment Division v. Smith, neutral laws of general applicability that incidentally burden religious practice need only satisfy rational basis review.
Question 3: Under District of Columbia v. Heller, the Second Amendment protects an individual's right to:
- Bear arms only while serving in a state militia
- Keep a handgun in the home for self-defense (Correct answer)
- Carry firearms openly in all public places
- Possess any weapon without government restriction
Correct answer: Keep a handgun in the home for self-defense
In Heller, the Supreme Court held that the Second Amendment protects an individual right to possess firearms for self-defense in the home, unconnected from militia service.
Question 4: The Fifth Amendment privilege against self-incrimination protects a person from being compelled to produce:
- Pre-existing business records subpoenaed by a grand jury
- Testimonial or communicative evidence (Correct answer)
- Physical evidence such as blood or DNA samples
- Handwriting exemplars requested by investigators
Correct answer: Testimonial or communicative evidence
The Fifth Amendment privilege protects only testimonial or communicative evidence — the compelled expression of one's thoughts — not physical or pre-existing documentary evidence.
Question 5: To establish Article III standing to bring a constitutional challenge in federal court, a plaintiff must demonstrate:
- A meritorious legal argument supported by sympathetic facts
- Injury in fact, causation, and redressability (Correct answer)
- A violation of a fundamental constitutional right
- Congressional authorization to sue the government
Correct answer: Injury in fact, causation, and redressability
Article III standing requires a concrete and particularized injury in fact, causation tracing the injury to the defendant's conduct, and redressability through a favorable judicial decision.
Question 6: Under the Youngstown Sheet & Tube Co. v. Sawyer framework, presidential power is at its LOWEST ebb when the President acts:
- With express congressional authorization
- In the absence of any congressional action
- Contrary to the expressed will of Congress (Correct answer)
- In matters of foreign affairs and national security
Correct answer: Contrary to the expressed will of Congress
In Justice Jackson's tripartite Youngstown framework, presidential power is at its lowest when the President acts contrary to the expressed or implied will of Congress, relying only on inherent constitutional authority.
Question 7: Under the Supremacy Clause, a state law is preempted by federal law in which of the following scenarios?
- The state law is less protective of individual rights than federal law
- Congress expressly declares that federal law preempts state law in that field
- The state law obstructs accomplishment of federal statutory objectives
- Both B and C are correct grounds for preemption (Correct answer)
Correct answer: Both B and C are correct grounds for preemption
Federal preemption occurs through express preemption (Congress explicitly preempts), field preemption (Congress occupies the entire field), or conflict preemption (state law conflicts with or is an obstacle to federal law).
MI Bar Constitutional Law 2
Under substantive due process, a right qualifies as 'fundamental' if it is: