Why does a state not have the power to make burning the flag a violation of state law


PART ONE – Constitutional Law

1. Congress has twice passed statutes making it a crime to burn the American flag as a way of protesting government policies. Many states have enacted similar laws. The Supreme Court has overturned them all as violations of the First Amendment. This is a very divisive and emotional issue for many Americans.

a. On what basis do you think the Court would rule that burning the flag is a form of protected speech? Explain.

b. Why does a state not have the power to make burning the flag a violation of state law? Explain.

c. If there were a national consensus that burning the flag should be an exception to the First Amendment, how would that have to be enacted into law?

2. Several states had statutes which required that male heirs be chosen over female heirs within the same degree of kinship when the state appointed someone to administer the estate of a person who died without a will. Ann Accountant wants to be the administrator of her father’s estate, but the statute requires that her 19 year old brother be appointed instead. Ann wants to challenge the constitutionality of the state statute.

a. What constitutional protection will she claim is being violated?

b. What level of scrutiny will the court use to review this statute?

c. What test will the statute have to meet to be constitutional?

d. In your opinion, what state interest is advanced by this statute? Does it outweigh the interest of Ann and other female heirs? Please explain.

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PART TWO – Criminal Law

1. What are the two basic elements for nearly every type of criminal offense?

2. What is the difference between a misdemeanor and a felony? Who (what branch of government) decides what offenses are misdemeanors and what offenses are felonies?

3. Can a corporation be guilty of a crime? Why or why not?

4. Choose a criminal offense and a defense that might be raised by an accused. Make up a scenario that accurately illustrates both. Explain the likely outcome of the case in your scenario. Be sure you consider all of the elements that must be proven for both the crime and the defense

5. The Fifth Amendment is a major source of protections for criminal defendants. Identify and explain the protections of the Fifth Amendment. Give an example to illustrate one right protected by the Fifth Amendment.

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