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Constitutional Rights and Wrongs – Part II

November 7, 2013
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Saturday_March_22,_2009_anti-war_protest_march_on_the_PentagonMy last post tested your general knowledge of the United States Constitution.  This True/False test determines your knowledge of the “Bill of Rights,” the first ten amendments to the Constitution.  At the end you will find both the answers and a way to score your own Bill of Rights literacy.  Note:  Although the precise wording of the questions is important, no statement is false because the incorrect amendment is specified.

1.         True or False – The First Amendment includes the words “church” and “state.”

2.         True or False – The First Amendment prohibits only the government from abridging freedom of speech.

3.         True or False – The First Amendment does not expressly create a right of people to associate with others having similar views, so that right has been inferred by the Supreme Court.

4.         True or False – The Second Amendment does not, by its terms, give anyone the right to own weapons of any kind.

5.         True or False – Under the Third Amendment, the government cannot force people to quarter soldiers in their homes without their consents.

6.         True or False – The Fourth Amendment requires the government to obtain a warrant before conducting any physical search.

7.         True or False – The Fifth Amendment guarantees that people cannot be forced to testify against their will in criminal cases.

8.         True or False – Because the Fourteenth Amendment requires that States provide “due process,” the Fifth Amendment’s guarantee that the most serious crimes be presented to a grand jury is applicable to the States.

9.         True or False – The Sixth Amendment guarantees that persons accused of crimes will be tried before a jury of their peers.

10.       True or False – The Sixth Amendment expressly grants to people accused of crime the right to the assistance of counsel.

11.       True or False – The Seventh Amendment requires that all federal civil cases in which the value of claim exceeds $20 be tried to a jury.

12.       True or False – The Eighth Amendment is silent about fines, requiring the Supreme Court to infer a limit on the size of fines from the Eighth Amendment’s prohibition of cruel and unusual punishment.

13.       True or False – By its terms, the Eighth Amendment requires bail in capital cases.

14.       True or False – If Roe v. Wade and the decisions following it were overruled by the Supreme Court, abortion would become illegal in all States.

15        True or False – Nothing in the Bill of Rights expressly requires that the federal government provide equal protection of the law.

Answers:

1.         False.  The First Amendment states that “Congress shall make no law respecting an establishment of religion.”  In an 1802 letter, Thomas Jefferson said this language had the effect of “building a wall of separation between Church & State.”  In an 1819 letter, James Madison, the author of the First Amendment, said it had created “total separation of the church from the State.”

2.         True.  The First Amendment is directly applicable to the federal government and through the 14th Amendment has been held to be applicable to the States and their instrumentalities.  It does not apply to the actions of purely private parties.

3.         True.  In N. A. A. C. P. v. Alabama, 357 U.S. 449 (1958), the Court held that the free speech rights of the First Amendment imply a right to association that is applicable to the States under the 14th Amendment.

4.         True.  Consistent with its recited desire to preserve a “well regulated militia,” the Second Amendment guarantees only “the right of the people to keep and bear Arms,” rights that can be exercised without ownership.  Any right of ownership would have to be inferred.

5.         False.  The Third Amendment bars the involuntary quartering of soldiers only in peace time.  During periods of war, soldiers can be quartered in private homes “in a manner to be prescribed by law.”

6.         False.  The Fourth Amendment precludes “unreasonable searches.”  In some circumstances, a search is not unreasonable even if no search warrant is obtained.

7.         False.   The Fifth Amendment only limits the ability of the government to force a person to be “a witness against himself.”  It does limit the ability of the government to compel testimony in other situations and the Sixth Amendment expressly gives persons accused of crimes the right “to have compulsory process for obtaining witnesses in his favor.”

8.         False.  In Hurtado v. People of State of California, 110 U.S. 516 (1884), the Supreme Court held that because the Fifth Amendment separately requires both due process and grand juries, a grand jury is not an element of due process and is therefore not part of the “due process” required of States under the 14th Amendment.

9.         False.  The Sixth Amendment guarantees persons accused of crimes the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.”  If there has been no discrimination in the jury selection process, a jury need not include anyone who might be considered a “peer” of the accused.

10.       True.  The Sixth Amendment expressly guarantees an accused the right “to have the Assistance of Counsel for his defence.”

11.       False.  Under the Seventh Amendment, the right to trial by jury in civil cases extends only to “suits at common law.”  Cases of the kind that were tried “at equity” in England at the time of the Constitution’s adoption are exempt from the requirements of the Seventh Amendment and can be tried to judges acting without juries.

12.       False.  The Eighth Amendment expressly precludes the imposition of “excessive fines.”

13.       True.  The Eighth Amendment precludes the imposition of “excessive bail” and lists no exceptions.  However, based on the practice in England at the time the Constitution was adopted, the Eighth Amendment has been construed as providing implied exceptions for murder and other serious crimes, for which bail can be denied entirely.

14.       False.  The decision in Roe v. Wade¸ 410 U.S 113 (1973), prohibits States from making certain abortions illegal.  Before the decision in Roe v. Wade, some States had eliminated restrictions on abortion and the repeal of Roe v. Wade would have no impact on those States or on other States deciding not to criminalize abortion.

15.       True.   Nothing in the Constitution expressly requires the federal government to guarantee equal protection of the law.  However, in Bolling v. Sharpe, 347 U.S. 497 ((1954), the Supreme Court held that this obligation should be imposed on the federal government because it is imposed on States by the 14th Amendment.

Scoring:

Questions 1, 2, 4, 7 and 9:  One point for each correct answer.

Questions 3, 5, 10, 12 and 14:  Two points for each correct answer.

Questions 6, 8. 11, 13 and 15:  Three points for each correct answer.

0 to 9:       The questions are difficult, but you could have done better guessing.

10 to 18:    You are an educated American with significant knowledge of the Bill of Rights.

19 to 27:  You are very well informed about the provisions of the Bill of Rights.

28 to 30:  You are either a constitutional scholar or you looked at the answers first.

Donald E. Knebel is a partner in Barnes & Thornburg LLP, resident in the Indianapolis, Indiana office. He is a member of the firm’s Intellectual Property Law Department. Mr. Knebel serves as adjunct professor and senior advisor to the Center for Intellectual Property Research at the Indiana University Maurer School of Law. He frequently posts his observations here at Civic Blog. The views expressed do not necessarily reflect the views of Barnes & Thornburg LLP or the IU Maurer School of Law.

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