第4章 英美宪法篇

第一节

During the drafting and ratification of the U.S.Constitution in 1787-88，the great fear was that a central government would be either too weak，like the government under the Articles of Confederation，or too strong，and thus potentially tyrannical.Few considered the potential for excessive power in the states themselves.That concern was addressed only in a few clauses，which have been rarely invoked and more rarely applied—especially the Republican Form of Government Clause and the State Bill of Attainder Clause.Instead，to the degree that state abuse of powers was considered，it was left to the democratic process and to the state courts' interpretations of state bills of rights.

This all changed with the great upheavals of the Civil War and Reconstruction.With the postwar ratification of the Thirteenth，Fourteenth，and Fifteenth Amendments，the states were now bound by federal constitutional strictures to secure certain freedoms to their own citizens，including the right of citizenship itself.The two provisions that would have the most far-ranging effects are both in Section One of the Fourteenth Amendment：“No State shall deny to any person due process of law or equal protection of the laws.”

These new limits on state power enshrined phrases with potentially indefinite meanings：What process is “due” and what protection is “equal”？To some extent，a tradition of interpreting “due process” had begun by reading a similar clause in the Fifth Amendment，limiting the central government.Yet it was clear that the drafters of the Fourteenth Amendment intended something more to keep former slave states from mistreating the freed slaves.

Initial interpretations of the Fourteenth Amendment resulted in more opinions about what it did not do than about what it did.The Slaughter-house Cases held that the amendment barred discrimination only against freedmen (emancipated slaves)，not against the general population.The Civil Rights Cases held the Reconstruction Amendments to a narrow scope of statutes that would eradicate slavery and not broader acts of discrimination against former slaves.There was little in these opinions that guided any understanding of what state action would violate due process of law.

【来源：George P.Fletcher，Steve Sheppard，American Law in a Global Context：The Basics，Oxford University Press，2005，pp.259-260】

1.What does “ratification” mean in Paragraph 1？( )

A.a person's binding adoption of an act already completed

B.the formal approval of a constitution or law

C.the final establishment of consent by the parties to a treaty

D.a principal's approval of an act of its agent

2.When the U.S.Constitution was drafted，the drafters focused their attention on the power of.（ ）

A.slaves

B.state courts

C.the federal government

D.state executive branch

3.According to the text，the most important provisions in the U.S.Constitution which require states to protect citizens' some freedoms are contained in. ( )

A.the Fifth Amendment

B.the Thirteenth Amendment

C.the Fourteenth Amendment

D.the Fifteenth Amendment

4.What can we infer from Slaughter-house Cases and Civil Rights Cases in Paragraph 4？( )

A.The interpretations of the Fourteenth Amendment did not tell how to apply the amendment.

B.The cases demonstrated that amendments only protected the slaves from discrimination.

C.The Fourteenth Amendment intended to eradicate slavery.

D.The cases hardly decide what actions of states break the due process of law.

第二节

By their manumission and citizenship，the colored race became entitled to the equal protection of the laws of the States in which they resided.And the apprehension，that through prejudices they might be denied that equal protection，was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws.Without the apprehended existence of prejudice，the Fourteenth Amendment of the Constitution of the United States would have been unnecessary，and it might have been left to the States to extend equality of protection.

The right to a trial by jury is guaranteed to every citizen of West Virginia of the United States by the Constitution of that State.And the constitution of juries is a very essential part of the protection such a mode of trial is intended to secure.

The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine；that is，of his neighbors，fellows，associates，persons having the same legal status in society as that which he holds.Blackstone，in his Commentaries，says，“The right of trial by jury，or the country，is a trial by the peers of every Englishman，and is the grand bulwark of his liberties，and is secured to him by the Great Charter.” It is also guarded by statutory enactments.

It is well known that prejudices often exist against particular classes in the community，which sway the judgment of jurors，and which，therefore，operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy.The framers of the Fourteenth Amendment of the U.S.Constitution must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race，and that knowledge was doubtless a motive that led to the amendment.

【来源：STRAUDER v.WEST VIRGINIA.100 U.S.303 (Supreme Court of the United States)】

1.What does “they” mean in Paragraph 1？( )

A.the States

B.the laws

C.prejudices

D.the colored race

2.According to Paragraph 1，which of the following statements is NOT TRUE？( )

A.The laws of the States should give equal protection to the colored race.

B.The federal government did not have the power to enforce the equal protection provisions of the laws.

C.The colored race might be denied to equal protection under laws by the States.

D.It was worried that the States might not give equal protection to the colored race.

3.As to the trial by jury，which of the following statements is NOT TRUE？( )

A.Every citizen of West Virginia has the right to be tried by jury.

B.The important part of jury trial's protection is the constitution of juries.

C.A jury is composed of the peers of the defendant，who have the same legal status in society.

D.The right to a trial by jury of the citizen of West Virginia is secured by the Great Charter.

4.What can you infer from Paragraph 4？( )

A.There is no prejudice against particular classes in West Virginia.

B.The prejudice against particular classes will not influence judgments of members of a jury.

C.The drafters of the Fourteenth Amendment of the U.S.Constitution knew there were prejudices against manumitted slaves.

D.The Fourteenth Amendment of the U.S.Constitution discriminated against manumitted against slaves and their race.

第三节

This is one nation with one economy.Each individual state retains its own sovereignty and its own ability to govern within its borders.A state thus may require that persons seeking to engage in any particular form of economic activity—acting as a lawyer or an insurance agent，for example—demonstrate their competence and meet appropriate prerequisites to licensure.But no state may build a fence at the border to keep out residents of other states or to keep them from competing for business within the state.Thus nonresidents who meet the same standards that a state imposes on its own residents ordinarily may not be barred from plying their trade within the state.

These principles are well illustrated by Supreme Court of New Hampshire v.Piper.The state of New Hampshire，like all states，required licensure as a prerequisite to practicing law.To provide legal services in New Hampshire，a person was required to meet certain standards and become a member of the state bar.The state obviously was entitled to regulate the practice of law in this manner.

But New Hampshire also imposed another requirement：to obtain the required license (that is，to become a member of the state bar) one had to be a resident of New Hampshire.The Supreme Court struck down that requirement，stating that the Privileges and Immunities Clause guarantee “to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.”The clear teaching of Piper is that the state cannot ordinarily condition a professional license on residency within the state.

【来源：Council of Ins.Agents & Brokers v.Gallagher，287 F.Supp.2d 1302(N.D.Fl.2003)】

1.Which is NOT the restriction that the state can impose on the nonresident who seeks to engage in an economic activity in the state？( )

A.to test the nonresident's competence

B.to require the nonresident to get a license

C.to require the nonresident to meet some standards imposed on the states' own residents

D.to forbid the nonresident's activity because of non-residency in the state

2.In New Hampshire，what is NOT the requirement on a person intending to practice law？( )

A.to meet certain standards

B.to be a resident

C.to have the license

D.to be a member of the state bar

3.As to the Privileges and Immunities Clause，which is TRUE?( )

A.Nonresidents can do the same business as the residents under the same requirements.

B.Residents in one state have more privileges than nonresidents.

C.Nonresidents cannot be immunized when doing business in other states.

D.Residents in one state should be immunized when doing business in the state.

4.What can you infer from this text？( )

A.Individual state does not have its own sovereignty to govern within its borders.

B.Individual state has the power to impose any kind of restriction on nonresidents.

C.Individual state can require nonresidents to satisfy standards imposed on residents.

D.Individual state can prevent nonresidents from doing business due to non residency.

第四节

An alternative way to express the idea of Right has emerged in the American constitutional concept of due process.The original use of this phrase in the Fifth Amendment (ratified in 1791) said simply that “no person shall be deprived of life，liberty，or property without due process of law.” This was understood at the time to restrict only the actions of the federal government.The Fourteenth Amendment (1868) applied the same principle to the states：“no state shall deprive any person of life，liberty，or property without due process of law.”

As originally used，the notion of “due process” carries procedural overtones.It seems to refer to the procedure that is fair and necessary to protect life，liberty，and property.But over time the concept has acquired a substantive content reflecting basic principles of human rights.For example，the leading case of Roe v.Wade (410 U.S.113) held in 1973 that state laws prohibiting abortion in the first trimester of pregnancy violated the due process clause of the Fourteenth Amendment.The problem was not the procedure for forbidding abortions but the more basic question whether pregnant women had a right to abort in particular cases.At stake was “the right to privacy,” a right not mentioned in the text of the Constitution but now understood to be a principle implicit in the idea of due process.

Unfortunately，no one knows which principles are included within the notion of substantive due process and which are not.Justice Benjamin Cardozo defined substantive due process as the “principles of ordered liberty.” Those additional words did not help much by way of definition except to remind us that liberty lies at the foundation of due process，precisely as Immanuel Kant wrote that liberty—or freedom—is the central value protected by the concept of Right and the rule of law.

【来源：George P.Fletcher，Steve Sheppard，American Law in a Global Context：The Basics，Oxford University Press，2005，pp.59-60】

1.Which is NOT TRUE about the difference between the Fifth Amendment and the Fourteenth Amendment？( )

A.The Fifth Amendment first expressed the term of due process.

B.The Fifth Amendment intended to restrict the actions of the federal government.

C.The Fourteenth Amendment intended to restrict the actions of the state government.

D.The Fourteenth Amendment first expressed the term of due process.

2.As to the description of due process，which is NOT TRUE？( )

A.Due process only referred to the procedure at the beginning of its application.

B.Due process is applied to protect life，liberty，and property.

C.Due process had the substantive content when it was originally used.

D.Due process has the contents of procedure and substance nowadays.

3.What does “the concept” mean in Paragraph 2？( )

A.due process

B.procedure

C.liberty

D.substantive content

4.As to substantive due process，which of the following statements is TRUE？( )

A.The boundary of the substantive due process is clearly drawn.

B.The concept of the substantive due process is still vague.

C.Justice Benjamin Cardozo's definition makes substantive due process clearer.

D.Immanuel Kant gave a definition of substantive due process.

第五节

The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States，and is not applicable to the legislation of the States.

The Constitution was ordained by the people of the United States for themselves，for their own government，and not for the government of individual States.Each State established a constitution for itself，and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated.The people of the United States framed such a government for the United States as they supposed best adapted to their situation，and best calculated to promote their interests.The powers they conferred on this government were to be exercised by itself，and the limitations on power，if expressed in general terms，are naturally and necessarily applicable to the government created by the instrument.They are limitations of power granted in the instrument itself，not of distinct governments framed by different persons and for different purposes.

But it is universally understood，it is a part of the history of the day，that the great revolution which established the Constitution of the United States was not effected without immense opposition.Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union，and to the attainment of those invaluable objects for which union was sought，might be exercised in a manner dangerous to liberty.In almost every convention by which the Constitution was adopted，amendments to guard against the abuse of power were recommended.These amendments demanded security against the apprehended encroachments of the federal government—not against those of the local governments.In compliance with a sentiment thus generally expressed，to quiet fears thus extensively entertained，amendments were proposed by the required majority in Congress and adopted by the States.These amendments contain no expression indicating an intention to apply them to the State governments.This court cannot so apply them.

【来源：Barron v.Mayor & City Council of Baltimore，32 U.S.243 (1833).

1.What does “ordain”mean according to the passage?( )

A.To make into an act or statue.

B.To invest officially with ministerial or priestly authority.

C.To authorize as an interpreter of the law.

D.To order by virtue of superior authority.

2.According to Paragraph 2，how many constitutions are in force in the U.S.today?( )

A.1

B.50

C.51

D.The passage does not tell.

3.According to the text，which of the following is TRUE?( )

A.The establishment of the U.S.Constitution was unanimously approved by the founders.

B.The amendments to the U.S.Constitution are meant to guard against the abuse of power.

C.The Fifth Amendment to the U.S.Constitution can be applied both to the Federal government and the state governments.

D.The U.S.Constitution was not designed to limit the power of the federal Government.

4.Which of the following statements can best illustrate the main idea of this text?( )

A.The amendments are supposed to limit the power of the federal government and the state governments as well.

B.The compensation on the public use of private property can be justifiably claimed against any state or local government.

C.The establishment of the U.S.Constitution and its amendments seeks to protect people's interests.

D.The Fifth Amendment to the U.S.Constitution is intended to limit the power of the federal government，not the state governments.

第六节

The contextualist approach holds great promise in explaining why the lower classes in the United States were unable to prevent the promulgation and enforcement of legal rules that hurt them.A fine illustration of the power of the method is provided by William Forbath's recent book on the history of labor law.

The central puzzle in American labor history is why American workers，unlike their European counterparts，failed to form an effective class-based political movement capable of forcing the state to promote or protect their economic interests.Most labor historians have sought answers to that question by focusing on two factors：(1) the ability of American capitalists to mobilize force (e.g.，strikebreakers and labor injunctions) to discourage collective action by workers and (2) social and ideological conditions that inhibited the formation of class consciousness among workers (e.g.，ethnic and racial divisions，the relative affluence of American workers，the availability of social mobility，and the ethos of individualism).Forbath does not contend that these factors were unimportant；indeed，he buttresses the first explanation by showing in great detail how judge-made law strengthened the hands of capitalists.But he argues that they were insufficient.A persuasive explanation must account for the dramatic shift in American workers' ideals and self-images during the two decades surrounding the turn of the century—from a statist and radical outlook grounded in the worldview of classical republicanism to a liberal，laissez-faire outlook centered on the principle that the “best thing the State can do for Labor is to leave Labor alone.”

To a large extent，Forbath argues，that shift can be attributed to the seductive discourse of the law.Demeaned and demoralized by relentlessly antilabor judicial decisions，American workers at the start of the twentieth century concentrated almost all their energies on the limited goal of securing the freedoms to organize，strike，and boycott.The set of arguments most likely to attain those ends，they sensibly concluded，was not the ambitious，utopian vocabulary of republicanism，but a variant of the liberal “rights” discourse that the courts had been deploying against them.Freedom and formal equality (freedom of contract，freedom of speech，and opportunities to “compete”on an equal footing with employers)—not citizenship，civic virtue，and social and economic equality—became the central concepts both in the requests they made of courts and legislatures and in their conversations among themselves.

To be sure，the workers did not merely parrot the arguments of their oppressors；they modified the language of liberalism to suit their own ends，incorporating，for example，a radical interpretation of the Thirteenth Amendment.And they can hardly be blamed for their abandonment of the republican vision；it undoubtedly would have been less effective in securing essential legal reforms.But the ultimate effect was to deprive American workers of the rhetorical resources they needed to mount a serious challenge to the status quo.The cost of adopting the language of the law was“acceptance of the naturalness of the capitalist marketplace，the inevitability of marketplace conflict，and the legitimacy of the competitive freedom enjoyed by corporations.”

【来源：William Fisher，“Texts And Contexts：The Application to American Legal History of the Methodologies of Intellectual History，”Stanford Law Review，May 1997】

1.According to the text,what was the reason why the lower classes in the United States could not stop the legal rules that hurt them?（ ）

A.The American capitalists were afraid of encouraging collective action by workers.

B.The American capitalists controlled the formation of class consciousness among workers.

C.The American workers were more likely to accept the status quo.

D.There were big changes in American workers' ideals and self-images from classical republicanism to liberal principles.

2.What does“injunction”mean according to Paragraph 2?（ ）

A.The act or behavior that makes two things together.

B.The court order that requires a person to do or cease doing a specific action.

C.The point or place where two things are connected.

D.The instructions made by the authorities.

3.Which of the following statements is True according to the text?（ ）

A.Forbath argues that the American workers in the early 20th century focused on their freedom to organize，strike，and boycott.

B.Forbath disagrees with the two factors provided by most labor historians.

C.The citizenship，civic virtue，and social and economic equality became the central concepts held by American workers.

D.The American workers' finally regained their republican vision.

4.Which of the following statements can be inferred from this text?（ ）

A.This text talks about how the American workers abandoned the idea of republican vision.

B.This text talks about how the American workers shifted from a republican vision to the liberal principles.

C.The American workers hold a radical interpretation that they should be free from any kind of slavery even the control of the state.

D.The American workers sought nothing but a laissez-faire and utopian liberal vision.

第七节

Judicial review is the doctrine according to which courts are entitled to pass upon the constitutionality of an action taken by a coordinate branch of government.The doctrine had its origin in England as early as the seventeenth century.Although the practice was recognized in Dr.Bonham's Case in 1610，judicial review never became a principle capable of limiting legislative authority in Britain，largely because the notion of judicial supremacy inherent in judicial review conflicted with the principle of parliamentary supremacy.Parliamentary supremacy entails the logical consequence that the legislature may alter the constitution by simply passing a law.

Although most of the Framers of the Constitution were familiar with the concept of judicial review and were for it，there is the hard fact that they considered and rejected the idea for a Council of Revision，which would have permitted the Supreme Court to join with the President in vetoing acts of Congress.However，it seems that the proponents of judicial review，like Hamilton，decided that it was a good tactical move not to try to resolve that issue in the Convention，but rather to leave the Constitution ambiguous.Two factors point up such an interpretation：First，there were individuals at the Convention who were bitterly opposed to judicial review.Second，it was not very difficult to predict who would head the new government and who would have the initiative in interpreting the document at the outset—Washington and those in whom he had trust.

Despite its fame，Marbury v.Madison below was not the first case in which the Supreme Court exercised judicial review.In Hylton v.United States，the Justices assumed its existence when they upheld the validity of a federal tax on carriages.The Court's acceptance of the concept even predates Hylton，as evidenced by such decisions as Hayburn's Case and Ware v.Hylton (1796).Judicial review was a practice that was also in existence at the state level.

Chief Justice Marshall's opinion in Marbury，however，was the Supreme Court's first genuine attempt to justify the practice and surely is its most often cited precedent for it.According to Marshall，the effect of the section 13 of the Judiciary Act of 1789 was to enlarge the original jurisdiction of the Supreme Court.He asserted that the original jurisdiction of the Court was delineated in Article III of the Constitution and could be neither expanded nor limited by Congress.After concluding that the statutory provision contradicted the Constitution，he set about the task of justifying the judiciary's acquisition of judicial review.He endeavored to demonstrate that the power of judicial review is simply a logical extension of the Court's exercise of judicial power.Therefore，the federal judiciary must have the power of judicial review.

【来源：Craig R.Ducat，Constitutional Interpretation，9th edition，Wadsworth，2009，pp.3-4】

1.What does“doctrine”mean in Paragraph 1？( )

A.a statement of government policy.

B.a principle accepted in a branch of knowledge or belief.

C.a set of ideas advocated by a religion.

D.a principle of law established through past decisions.

2.Which of the following cases first established the doctrine of judicial review in the US？( )

A.Dr.Bonham's Case.

B.Marbury v.Madison.

C.Hylton v.United States.

D.Ware v.Hylton.

3.The function of the Council of Revision is .（ ）

A.to enlarge the jurisdiction of the Supreme Court

B.to review the acts of the executive branch

C.to allow the Supreme Court to say no to the acts of Congress

D.to discuss the issue of judicial review

4.Which of the following statements is TRUE according to the text?（ ）

A.The judicial review has not become a principle in Britain mainly because judicial review conflicted with the principle of parliamentary supremacy.

B.The founders of United States were repelled by the concept of judicial review，and it was not until the case of Marbury v.Madison that Chief Justice Marshall established the doctrine.

C.Most cases before Marbury v.Madison did not apply the judicial review.

D.Chief Justice Marshall failed to demonstrate that the principle of judicial review was a logical extension of the Court's exercise of judicial power.

第八节

Under the principle of separation of powers，each branch of the federal government can only exercise the powers given to it under the Constitution and cannot exercise the powers given under the Constitution to another branch.Whenever one branch purports to exercise the powers that under the Constitution belong to another branch，there has been a violation of the principle of separation of powers，and such action is unconstitutional.Since the Constitution provides that “primary” federal officers must be appointed by the President and that “inferior” officers must be appointed by the President，a head of a department or the courts，Congress has no power whatsoever to appoint any federal officers.This being so，a provision of a law that authorized the Speaker of the House of Representatives and the President pro tempore of the Senate to appoint a majority of the members of the Federal Election Commission was held to be unconstitutional.

Likewise，the question of “which branch has the power” comes into play whenever there is a direct conflict between Congress and the President with respect to a particular exercise of governmental power.In this circumstance，Congress asserts its authority to deal with the matter in issue under the powers provided to it under Article I，section 8，and the President asserts his authority to deal with the same matter under the powers provided to the executive branch under Article II，sections 2 and 3.The President asserted that he had the power to remove the officer in question while Congress asserted that it alone had the power to provide a fixed term of office and to establish the conditions for the removal of the officer.The Court，it will be recalled，resolved this conflict by upholding the President's power to remove officers whose duties are predominantly “political or executive，”and upholding Congress “power to control the removal of officers whose duties are predominantly，quasi-judicial” and “quasi-legislative.”

When challenges are made to the exercise of Presidential power as being beyond his authority under Article II，sections 2 and 3，the Court has often been able to reject the challenge by looking to the President's power to “execute the laws” under Article II，section 3，and finding that the Presidential action in question was authorized by Congress.This means of avoiding the question of the President's authority is not possible only when the President，asserting his power under Article II，sections 2 and 3，has taken action that directly conflicts with action that has been prescribed in a federal law.This situation is exceedingly rare in practice，but occurred in Youngstown Sheet & Tube Co.v.Sawyer (The Steel Seizure Case).The Court's decision in that case indicates that where there is a direct conflict between the exercise of Congressional power and the exercise of Presidential power，at least in matters not directly involving military action or foreign affairs，the exercise of Congressional power must prevail.

【来源：Robert A.Sedler，Constitutional Law in the United States，Kluwar Law International，2012，pp.77-78】

1.According to Paragraph 1，which of the following statements concerning the principle of separation of power in the U.S.is NOT CORRECT？( )

A.It is against the constitution for one branch of the government to exercise the powers belonging to another branch.

B.A statute that allows the President pro tempore of the Senate to appoint the members for a federal commission is unconstitutional.

C.Congress can appoint the officer to the federal courts.

D.The principle of separation of power means that the powers each branch of the federal government is allowed to exercise are specifically granted by the Constitution.

2.According to Paragraph 2，how did the Court resolve the disputes between the Congress and the President？( )

A.by upholding the President to remove the officer in question

B.by separating the officers into two kinds and supporting either the Congress or the President according to their constitutional power

C.by supporting the Congress to provide a fixed term of office and to establish the conditions for the removal of the officer

D.by avoiding answering the question in its judgment

3.According to the last paragraph，is the Court prohibited from directly holding that the Presidential action is authorized by Congress？( )

A.the exercise of the Presidential power directly contravenes with action provided in a law.

B.the exercise of the President's power is beyond his authority under Article II，sections 2 and 3.

C.the President exercises the power to execute the laws under Article II，section 3.

D.the exercise of the Presidential power is unconstitutional.

4.What can we infer from the Steel Seizure Case？( )

A.There is no conflict between the exercise of Congressional power and the exercise of Presidential power.

B.In matters concerning military action，the exercise of Congressional power shall prevail.

C.The situation in the Steel Seizure Case frequently re-occurred in the judicial practice of the U.S.

D.The court finally upheld the exercise of Congressional power.

第九节

It is evident that the people of that time attached immense importance to the declaration of the fundamental rights of human beings contained in these ten amendments.They had had a taste of the oppression resulting from unrestrained power in the hands of an unscrupulous executive and were determined that the new and strongly centralized government should not hurl them back into the bondage from which they had just been freed.They feared the central government，not themselves，and this Bill of Rights was designed to prevent any possible abuse of its powers.It was a definitive guaranty from the Federal Government of the fundamental rights of the people，and nothing more.And，in considering the Fifth Article of Amendment，it is incumbent that this should be borne in mind.

The Fifth Article is by far the most important of the first ten amendments，at least，in that it has been invoked before our tribunals more than any of the others；and，perhaps，more than all of the other ten put together.

The first phrase of the Fifth Article requires little explanation.It is evident that it sought to do away with the possibility of the sovereign's tyrannical oppression，and to relieve the accused of the burden and expense of a trial until there had been prior inquiry and adjudication as to his probable guilt by a proper tribunal.The second clause was designed to prevent a second punishment for the same crime or misdemeanor but was，as were nearly all of these amendments，an unnecessary expression of a fundamental right which our courts would have recognized regardless of constitutional mention.This principle had long been recognized as a bulwark of liberty.The third clause preserves the right of a witness from being compelled to give evidence which may subject him to criminal prosecution.This was a peculiar feature of the common law system of trials which made it distinctive from the systems prevailing in other civilized nations.It is prohibitive to the Federal and not the State Governments.Concerning the fourth clause，volumes might be written.This is the first occurrence in American constitutional history of the phrase“due process of law,”and it might be well to trace briefly the origin of this phrase in the constitutions of the English-speaking nations.

【来源：Milo B.Williams，The Fifth Article of Amendment：A Brief Outline of Its Origin and Meaning，4 Loy.L.J.New Orleans，1923，pp.161-165】

1.In the first paragraph，the underlined “this” refers to.( )

A.the fact that the people of that time enjoyed unrestrained power.

B.the fact that the people of that time emphasized the government's powers in the hands of an unscrupulous executive.

C.the fact that the Bill of Rights was designed as a warranty from the central government of the people's fundamental rights.

D.the fact that the people of that time attached immense importance to the power of the federal government.

2.What does “tribunal” in Paragraph 2 mean？( )

A.a bench of judges

B.a seat of arbitrators

C.the federal government

D.the state government

3.Which of the following clauses of the Fifth Article of Amendment writes as “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”？( )

A.the first clause

B.the second clause

C.the third clause

D.the fourth clause

4.According to the passage，the fourth clause of the Fifth Article of Amendment relates to.( )

A.the prevention of a witness from being compelled to give evidence which may subject him to criminal prosecution.

B.the safeguard of security of a persons security via legal proceedings established by law against arbitrary sentences of death，imprisonment or confiscation of property.

C.the relief of the accused of the burden and expense of a trial until there had been prior inquiry and adjudication as to his probable guilt by a proper tribunal.

D.assurance of equality in proceedings and laws for security of person，not laws based upon distinctions of race，sex，age，gender preferences，etc.

第十节

The United States Supreme Court，in McDonald v.Chicago，held that Chicago's gun ban violated the Second Amendment.Gun owners were elated.The Court ruled for the first time that the Second Amendment restricts state governments as well as federal.Yet，James Madison，the Father of the Constitution，wrote that the federal government's jurisdiction “extends to certain enumerated objects only，and leaves to the several States，a residuary and inviolable sovereignty over all other objects.” Nothing is enumerated in the Constitution to support any kind of federal control over state gun rights thus retaining an “inviolable sovereignty” in the states.Moreover，Chief Justice John Marshall，writing for the Court in Barron v.Baltimore，held that the Bill of Rights (the first eight amendments) restricted only the federal government，but not the states.Nevertheless，with McDonald，the Court's conservative bloc confirmed a Warren Court doctrine that had usurped the states' “inviolable sovereignty.”

This was accomplished by the “incorporation” doctrine，which holds that the Bill of Rights restricts the state governments as well as the federal by the Fourteenth Amendment's Due Process Clause (despite the Fourteenth Amendment's dubious passage and ratification).This initially caused extreme outrage among conservatives and strict constructionists.After totally rejecting “incorporation” in Bartkus v.Illinois，the Warren Court held，for the first time，beginning in the late nineteen-fifties that various provisions of the Bill of Rights were “incorporated” in and applied，not withstanding the doctrine of enumerated powers and the Tenth Amendment，to the states by the Due Process Clause of the Fourteenth Amendment.This，as shown below，has brought disastrous results to federalism，to the sovereignty of the states，to the separation of powers by way of judicial supremacy，and to the Christian foundations of America.

Justice Hugo Black，dissenting in Adamson v.Californian contended that the Fourteenth Amendment's “privilege and immunities” clause incorporated the Bill of Rights，making it applicable to and a restriction on the states.To Black's argument，Professor Charles Fairman，in his famous 1949 Stanford Law Review article now called a “classic,” contrasted the “mountain of evidence” against incorporation with “the few stones and pebbles” in support.According to renowned Harvard constitutional scholar Alexander Bickel，Fairman “conclusively disproved” incorporation.

【来源：William D.(Bill) Graves，The Supreme Court's Subversion of the Constitution through Substantive Due Process of Law and 14th Amendment Judicial Incorporation of the Bill of Rights，6 Regent J.L.&Pub.Pol'y，2013-2014，pp.249-251】

1.The judgement in McDonald v.Chicago provides that the Second Amendment governs.( )

A.neither the federal government nor the state governments

B.federal government only

C.state governments only

D.both the federal government and state governments

2.Which of the following statements about the “incorporation” doctrine is NOT TRUE？( )

A.This doctrine refers to the fact that，via the Fourteenth amendment's due process clause，the Bill of Rights restrains the state government as well.

B.The Supreme Court later held that the Bill of Rights were applicable to the states by the Due Process Clause of the Fourteenth Amendment.

C.The notion of this doctrine had negative influence on the separation of powers by way of judicial supremacy.

D.This doctrine was embraced among conservatives and strict constructionists at the outset.

3.What does “immunities” mean in the last paragraph？( )

A.particular advantages enjoyed by a citizen.

B.exemptions in performing certain duties.

C.equal treatments among people.

D.restrictions on the powers of the federal government.

4.According to the passage，which of the following descriptions of the scholars' and judges' attitudes is CORRECT？( )

A.Professor Charles Fairman ultimately reached the conclusion that the incorporation doctrine was not untenable.

B.Justice Hugo Black held that the Fourteenth Amendment is inapplicable to the state governments.

C.Professor Charles Fairman in his article showed that evidence supporting incorporation far outweighs opposing evidence.

D.Justice John Marshall held the view that the Bill of Rights was applicable to the states as well.