TX Bar Constitutional Law 2 — Questions and Answers
Question 1: Under substantive due process, which standard of review applies to economic regulations that do not affect fundamental rights?
- Strict scrutiny
- Intermediate scrutiny
- Rational basis review (Correct answer)
- Per se invalidity
Correct answer: Rational basis review
Economic regulations that do not burden fundamental rights or suspect classes are reviewed under rational basis, meaning they must be rationally related to a legitimate government interest.
Question 2: The Supreme Court held in Obergefell v. Hodges that the right to marry is a fundamental right under the Fourteenth Amendment. This holding was based on:
- The Privileges or Immunities Clause alone
- The Equal Protection Clause alone
- Both the Due Process and Equal Protection Clauses (Correct answer)
- The Ninth Amendment
Correct answer: Both the Due Process and Equal Protection Clauses
Obergefell rested on both the Due Process Clause (fundamental right to marry) and the Equal Protection Clause (prohibition on unequal treatment of same-sex couples).
Question 3: Which clause prohibits states from denying 'any person within its jurisdiction the equal protection of the laws'?
- The Due Process Clause of the Fifth Amendment
- The Equal Protection Clause of the Fourteenth Amendment (Correct answer)
- The Privileges or Immunities Clause of the Fourteenth Amendment
- The Supremacy Clause of Article VI
Correct answer: The Equal Protection Clause of the Fourteenth Amendment
The Equal Protection Clause of the Fourteenth Amendment expressly limits state action to ensure all persons are treated equally under state law.
Question 4: Procedural due process requires the government to provide notice and a hearing before depriving someone of a protected interest. Which case established a balancing test to determine what process is due?
- Goldberg v. Kelly
- Mathews v. Eldridge (Correct answer)
- Lochner v. New York
- Palko v. Connecticut
Correct answer: Mathews v. Eldridge
Mathews v. Eldridge established a three-factor balancing test: the private interest at stake, the risk of erroneous deprivation and value of additional safeguards, and the government's interest.
Question 5: Under equal protection doctrine, a law classifying individuals based on race receives:
- Rational basis review because race is not mentioned in the Constitution
- Intermediate scrutiny because race is a semi-suspect classification
- Strict scrutiny because race is a suspect classification (Correct answer)
- No review because classifications are inherently legislative
Correct answer: Strict scrutiny because race is a suspect classification
Racial classifications are subject to strict scrutiny—the government must prove the law is narrowly tailored to serve a compelling government interest.
Question 6: The 'fundamental fairness' approach to due process incorporation held that the Fourteenth Amendment absorbs only those Bill of Rights guarantees that are fundamental to ordered liberty. This approach was most associated with:
- Justice Hugo Black's total incorporation theory
- Justice Felix Frankfurter's selective incorporation view (Correct answer)
- Justice William Brennan's preferred freedoms theory
- Justice Clarence Thomas's original public meaning approach
Correct answer: Justice Felix Frankfurter's selective incorporation view
Justice Frankfurter advocated selective incorporation, holding that only rights fundamental to ordered liberty and rooted in the Anglo-American legal tradition are incorporated.
Question 7: A state law classifying based on sex (gender) is reviewed under what level of scrutiny after Craig v. Boren?
- Rational basis
- Intermediate scrutiny (Correct answer)
- Strict scrutiny
- Per se unconstitutional
Correct answer: Intermediate scrutiny
After Craig v. Boren, sex-based classifications are reviewed under intermediate scrutiny: the law must be substantially related to an important government interest.
TX Bar Constitutional Law 2
Under substantive due process, which standard of review applies to economic regulations that do not affect fundamental rights?