A citizen unhappy about a recent city council decision stood in front of city hall and gave a speech belittling each member of the council. His diatribe included the following statement: “If there is a god, the city council members will burn in hell forever.” A 1898 state criminal statute prohibited “the public utterance of any blasphemy or sacrilege.” A police officer arrested the citizen, and the district attorney decided to prosecute, only the third such prosecution in the state’s history. Which of the following arguments would be the least helpful for the defense?

A. Applying the statute to the defendant infringes his freedom of speech in violation of the Fourteenth Amendment.

B. The statute violates the Fourteenth Amendment because it is an establishment of religion.

C. Applying the statute to the citizen denies him equal protection of the law in violation of the Fourteenth Amendment.

D. The statute violates the Fourteenth Amendment’s Due Process Clause because the statute is vague.

A. Applying the statute to the defendant infringes his freedom of speech in violation of the Fourteenth Amendment. This is a good argument. The prohibition is content-related and gets strict scrutiny. There is no apparent purpose except avoiding offense to those who believe in a supreme being.

B. The statute violates the Fourteenth Amendment because it is an establishment of religion. This is also a good argument. The statute aims to protect religious sensibilities. There is no apparent secular purpose, and the statute’s primary effect advances religion.

C. Applying the statute to the citizen denies him equal protection of the law in violation of the Fourteenth Amendment. This is a poor argument. There is nothing in the record to show that the city applies the statute discriminatorily, even though the city has only applied the statute three times before.

D. The statute violates the Fourteenth Amendment’s Due Process Clause because the statute is vague. This is a good argument. The statute defines the prohibited speech only in the most general categorical terms. People must guess, at their peril, what constitutes “blasphemy” or “sacrilege.”

You are an aide to a member of Congress. The member asks you to evaluate the constitutionality of a proposed statute that would create a mandatory price schedule for all motor vehicles sold in the United States. Which of the following arguments would be the best support for the constitutionality of the proposed statute?

A. All motor vehicle sales in the U.S., taken as a whole, have a substantial effect on interstate commerce.

B. Because any sale involves commerce by definition, the Commerce Clause allows federal regulation.

C. Congress has the power to regulate transportation in the United States.

D. Congress may legislate for the general welfare of the people of the United States.

A. All motor vehicle sales in the U.S., taken as a whole, have a substantial effect on interstate commerce. This is a good argument. Individual sales may be intrastate, but the volume of sales affects interstate commerce because the manufacture, sale and subsequent service of vehicles (including GM recalls) touches commerce in many states.

B. Because any sale involves commerce by definition, the Commerce Clause allows federal regulation. This is a poor argument, because it reads “interstate” out of the Commerce Clause and would allow federal regulation of every commercial transaction in the nation.

C. Congress has the power to regulate transportation in the United States. This is a poor argument. Congress can regulate interstate commerce, which may involve transportation, but there is no general power to regulate transportation per se.

D. Congress may legislate for the general welfare of the people of the United States. This is a poor answer. The General Welfare Clause is connected to Congress’s taxing and spending power, and this statute concerns neither.