Chapter 5 — Self-Check Quiz

12 multiple-choice questions and 4 short-answer questions covering Chapter 5. Answer keys at the end.

Multiple Choice

1. Which case began the modern doctrine of selective incorporation by extending First Amendment speech protection to the states through the Fourteenth Amendment?

A. Barron v. Baltimore (1833) B. Hurtado v. California (1884) C. Gitlow v. New York (1925) D. Mapp v. Ohio (1961)

2. Under Brandenburg v. Ohio, the government may punish speech advocating unlawful action only when:

A. The speech is offensive to a reasonable listener B. The speech is directed to inciting imminent lawless action and is likely to produce such action C. The speaker has a history of violent conduct D. The speech is broadcast to a wide audience

3. New York Times v. Sullivan requires that public figures bringing defamation suits prove:

A. That the defendant's statement was false B. That the defendant published the statement with malice C. That the defendant knew the statement was false or recklessly disregarded the truth D. That the statement caused measurable financial harm

4. Which test did Kennedy v. Bremerton School District (2022) replace, and with what?

A. Replaced Sherbert's strict-scrutiny test with rational-basis review B. Replaced the Lemon test with a "history and tradition" inquiry C. Replaced Smith's neutral-law test with strict scrutiny D. Replaced Miller's obscenity test with a "patent offensiveness" standard

5. Employment Division v. Smith (1990) held that:

A. The Free Exercise Clause does not exempt religious practitioners from neutral, generally applicable laws B. The Free Exercise Clause requires strict scrutiny of any law burdening religious practice C. Sacramental peyote use is constitutionally protected D. RFRA applies fully to the states

6. Which Second Amendment doctrinal change occurred in 2022?

A. McDonald incorporated the Second Amendment against the states B. Heller recognized an individual right unconnected to militia service C. Bruen replaced two-step balancing with a "history and tradition" test D. The Court held that all firearms regulations are permissible

7. Carpenter v. United States (2018) held that:

A. The third-party doctrine does not extend to all forms of cell-site location information B. Cell-phone searches incident to arrest require a warrant C. Bank records are protected by the Fourth Amendment D. All digital data is constitutionally protected from government access

8. The good-faith exception to the exclusionary rule, established in United States v. Leon (1984), provides that:

A. Evidence obtained in violation of the Fourth Amendment is admissible if obtained in objectively reasonable reliance on a defective warrant B. The exclusionary rule does not apply in state court C. Police misconduct never justifies evidence suppression D. Good-faith violations are sanctioned through internal discipline only

9. Approximately what percentage of federal criminal convictions are obtained by guilty plea rather than by trial?

A. About 50% B. About 70% C. About 95% D. Approximately 99%

10. Kelo v. City of New London (2005) held that:

A. Economic-development takings violate the Takings Clause B. "Public use" includes economic-development takings C. Civil asset forfeiture violates due process D. Eminent domain requires criminal conviction

11. Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey on the ground that:

A. Abortion is protected by the Privileges or Immunities Clause, not the Due Process Clause B. The right to abortion is not "deeply rooted in the Nation's history and tradition" C. The federal government lacks jurisdiction over reproductive matters D. The Ninth Amendment was misapplied in Roe

12. Which of the following is correctly described as not a Fourth Amendment search after the relevant precedent?

A. Examining cell-site location records covering 7+ days (Carpenter: this is a search) B. Searching a cell phone incident to arrest (Riley: requires warrant) C. Routine border inspection of a traveler's luggage (Ramsey: not requiring individualized suspicion) D. Wiretapping a public phone booth (Katz: this is a search)

Short Answer

Each answer should be 100-200 words. Cite at least one specific case or doctrinal test.

13. Explain the difference between civil liberties and civil rights. Give one example each.

14. Why is the Brandenburg test described as ideologically neutral? Identify one case where it protected speech the left favored and one where it protected speech the left disfavored.

15. Bruen's "history and tradition" test has been described by defenders as a constraint on judicial discretion and by critics as a malleable invitation to it. Restate each side's argument fairly.

16. The Dobbs dissent argued the majority's logic threatens Lawrence and Obergefell. Explain the dissent's argument. Then identify a non-substantive-due-process ground that might support those decisions.

Answer Key

Multiple Choice

1. C — Gitlow v. New York (1925). Barron and Hurtado held that Bill of Rights provisions did not apply to the states; Mapp incorporated the Fourth Amendment exclusionary rule, much later.

2. B — Both prongs (directed to and likely to produce imminent lawless action) must be satisfied.

3. C — "Actual malice" in Sullivan means knowledge of falsity or reckless disregard, not ill will. Common-language "malice" is distinct.

4. B — Bremerton abandoned Lemon explicitly and substituted history-and-tradition inquiry.

5. A — Smith held that neutral, generally applicable laws do not violate Free Exercise even when they incidentally burden religious practice. The peyote use was held not protected, contrary to (C).

6. C — Bruen (2022). McDonald (2010) and Heller (2008) preceded.

7. A — Carpenter did not overrule the third-party doctrine but declined to extend it to long-term CSLI.

8. A — Leon's good-faith exception applies specifically to objectively reasonable reliance on defective warrants.

9. C — About 95% in federal criminal convictions; state-court figures are similar (~94%). The trial right exists in doctrine but is rarely exercised in practice.

10. B — Kelo upheld economic-development takings; the political backlash produced state legislation restricting the practice.

11. B — The "history and tradition" framing was the doctrinal heart of the Dobbs opinion.

12. All four are correct as stated; the question asks which is "not a Fourth Amendment search." C is the only routine-border activity that does not require individualized suspicion. (A), (B), and (D) all are searches under the controlling precedents listed.

Short Answer

13. Civil liberties limit what government may do (speech, search, trial); civil rights guarantee equal treatment by government (Equal Protection, civil-rights statutes). Liberty example: may government prosecute a speaker for a political pamphlet? (No, under Brandenburg unless its test is met.) Rights example: may a public university admit students at different rates by race? Marriage equality involves both, addressed in Obergefell (2015).

14. Brandenburg protects advocacy regardless of speaker identity. Examples include the Klan rally in Brandenburg itself (1969), civil-rights organizers in the 1960s South facing sedition-style prosecutions, and Black Panther speakers in the 1970s. The test is symmetrical because it turns on imminent-lawless-action analysis, not message content.

15. Defenders: Bruen binds judges to the historical record rather than policy preferences, producing predictability and limiting interest-balancing erosion of the Second Amendment. Critics: the historical record is incomplete, the level-of-generality choice is judge-supplied, and post-Bruen circuit splits show the test is less rule-bound than claimed.

16. The dissent: Dobbs held that unenumerated rights require a "deeply rooted" historical pedigree. Same-sex conduct was criminal in many states until Lawrence (2003) and same-sex marriage nowhere recognized until 2003. By Dobbs methodology, neither is deeply rooted. Alternative non-substantive-due-process grounds: Equal Protection (Obergefell used partly; Loving primarily); revived Privileges or Immunities; First Amendment expressive association. The Respect for Marriage Act (2022) provides statutory protection.