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Culture Documents
Students often find the constitutional law material very difficult. One way to approach the material is
to focus on the purpose of a country’s constitution, in general. A country’s constitution makes clear
what that particular country values. For example, someone from another country would be quick to
point out the U.S. Constitution’s emphasis on freedom. So, start out with a broad proposition, such as,
“A country’s constitution shows what the country values.” Then, highlight perhaps three cases from the
chapter. Use the rules from the three cases you chose to encourage students to apply a particular rule to
a new scenario. The “Teaching Ideas” section of this manual gives you some scenarios to try with your
students.
LEARNING OBJECTIVES
After reading this chapter, students will be able to answer the following questions:
1. What is federalism?
2. How does the U.S. government’s system of checks and balances operate?
3. What effects does the commerce clause have on the government’s regulation of business?
4. How does the Bill of Rights protect the citizens of the United States?
These sections serve as sort of checkpoints to assure that students have developed some understanding
of their reading material. Checking for understanding occurs by having students relate new material
learned to the Case Opener at the beginning of the chapter. The following are examples of appropriate
responses to the questions posed in each of the “But What If…” sections:
1.) Recall that in the case opener, that Obama’s mandate was spurring people into action, actions that
could affect interstate commerce. What if Obama’s Act imposed certain rules only on those who already
had healthcare and in other words it imposed rules on preexisting actions. Why might people be more
open to this scenario as opposed to the real facts?
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Chapter 05 - Constitutional Principles
The individual mandate in the PPACA requires that individuals either purchase health insurance (or
continue to have health insurance) or incur a fine known as a “shared responsibility payment.” Some
people might be more open to the above scenario because those individuals who do not want to purchase
health insurance could refrain from doing so without incurring a penalty. This issue is addressed by
Justice Roberts when the justice creates a distinction between regulating existing activity and creating
activity. The former is seen as affecting interstate commerce, and thus within the scope of Congressional
regulation; the latter is considered outside the scope of the Commerce Powers.
2.) What if the facts had been different and the language of the statute had explicitly stated that even
though the payment was to be made through the IRS, this payment was a penalty and not a tax? Would
that language have affected the constitutionality of the provision as an exercise of congressional taxing
authority?
No. Using the world “penalty” as opposed to “tax” does not affect the constitutionality of the
individual mandate. With regard to the individual mandate and associated penalty, the Supreme Court
reasoned that while the payment was intended to encourage the purchase of insurance, there was
nothing in the mandate that made the failure to purchase insurance unlawful. Consequently, the law
could be read as simply imposing a tax, collected by the IRS like other taxes, on those choosing not to
purchase health insurance. There was no problem in referring to this “tax” as a “penalty.”
checks and balances o Under federalism in the U.S. Constitution, all powers not
operate? given exclusively to the federal government are
reserved to the states.
o Federal legislation that affects business must be based on
expressed constitutional grant of authority.
o Constitution allocates power among the three branches of
government: executive, legislative, and judicial
branches.
o Constitution includes separation of powers: powers given to
each branch serve as a check on other branches to
prevent their taking enough power to control the
government.
The Supremacy Clause and Federal Preemption
o Supremacy Clause: the Constitution, laws, and
treaties of the United States constitute the supreme law of the
land.
o Federal preemption: when federal government has expressed
intent to provide exclusive regulation of an area and a state
attempts to regulate in this area, the state law will be struck
down.
What effects does the The Commerce Clause is the primary source for the most federal
commerce clause have regulations. NLRB v. Jones & Laughlin Steel Corp – turning point in
on the government’s Supreme Court's interpretation of the Commerce Clause. The Court
regulation of business? held Congress could regulate labor relations at the plant because
work stoppage would have a serious impact on interstate commerce.
Many statutes (e.g., Federal Mine Safety and Health Act, Americans with
Disabilities Act, and the Consumer Protection Act) are valid exercises of
Commerce Clause power.
In 1995, in U.S. v. Lopez – Supreme Court begins giving less deference
to the Commerce Clause. The Court found that Congress had exceeded its
authority by passing the Gun-Free School Zone Act, an act that bans
possession of guns within 1000 feet of any school. Court argued that
Congress was attempting to legislate in an area that had
nothing to do with commerce or economic enterprise.
5-3
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Chapter 05 - Constitutional Principles
How does the Bill of The first ten amendments to the Constitution are called the Bill of
Rights protect the Rights. Refer to Exhibit 5-1
citizens of the United The First Amendment guarantees freedom of speech and press,
States? prohibits the abridgement of the right to assemble peacefully and
petition for redress of grievances, and prohibits the government from
aiding the establishment of religion and from interfering with the free
exercise of religion. First Amendment rights are not absolute (i.e.,
there are times when our speech is restricted).
o Corporate commercial speech is treated differently than
corporate political speech.
o Commercial speech is analyzed under the Central Hudson test.
Teaching tip: Use the “Dr. Snell” hypothetical (below, Hypothetical Two)
in class.
Amendment? Why does the “yes” side of the debate bring up the Internet?
Why does the “no” side of the debate use the phrase “shrouded in
secrecy”?
http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1040&context=hono
rs
and
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1052&cont
ext=yjolt
Issue:
Did Congress have authority to provide a civil remedy under the Violence against Women Act
(VAWA)?
Facts:
Christy Brzonkala was allegedly raped by two male students at Virginia Polytechnic Institute
(Virginia Tech). One of her alleged attackers (Morrison) later bragged in public areas about what he
would do to women. Brzonkala stopped attending classes, withdrew from the university, and started
taking antidepressant medication. Brzonkala filed a complaint with the school. Morrison was initially
found guilty and was suspended for 2 semesters, but his suspension was ultimately set aside.
Brozonkala sued the two alleged attackers, along with Virginia Tech under VAWA. The attackers
moved to dismiss the complaint, arguing that VAWA's civil remedy was unconstitutional.
Procedural History:
District Court dismissed the complaint because Congress lacked authority to enact the section. The
Court of Appeals affirmed.
Holding:
Affirmed. Congress may not regulate noneconomic, violent criminal conduct based solely on the
conduct's aggregate effect on interstate commerce. The activity must "substantially affect" interstate
commerce.
Reasoning:
Every law enacted by Congress must be based on one or more of the powers enumerated
in the Constitution.
Under Lopez, laws cannot fall under the Commerce Clause simply
because they have an aggregate economic effect on interstate commerce.
Gender-motivated violent crimes are not economic activity.
Although the Congressional findings suggest that the impact of gender-
motivated violence is severe, Congressional findings are not enough to fit the
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Chapter 05 - Constitutional Principles
VAWA civil remedy provision under the Commerce Clause. The idea that violent
crime may lead to fewer women participating in interstate commerce is too far
down the but-for causation line.
Dissent: Unlike the findings in Lopez, Congress provided mountains of data to support its findings
that violence against women affects interstate commerce. Some congressional conclusions are given
weight in that they "substantially affect" interstate commerce, while other conclusions are not.
Answers to the questions
Women generally have greater rights under the minority opinion, compared to the majority opinion.
Furthermore, members of Congress would have preferred the minority opinion because their ability
to create effective legislation has been cut down by the court’s decision in Brzonkala.
Issue:
Is the 2006 Massachusetts law that limits the distribution methods a “large” winery can use in
violation of the Commerce Clause?
Facts:
A group of winemakers from California challenged a Massachusetts law that distinguishes how “large”
and “small” winemakers may distribute their wines in the state of Massachusetts. The law defined
wineries that produced over 30,000 gallons of wine as “large” and allowed large wineries to either sell
directly to consumers, or sell through wholesalers, but not both. On the other hand, “small” wineries
could use both distribution methods. All wineries in Massachusetts were below the 30,000 gallon cap.
Thus, the only wineries being blocked from certain forms of distribution were wineries from outside of
the state. Consequently, out of state winemakers decided to sue, claiming that the state’s laws on this
matter were violating the Commerce Clause by giving in-state businesses an unfair advantage over out
of state businesses.
Procedural History:
The district court enjoined the enforcement of the law and the state of Massachusetts appealed.
Holding:
Affirmed.
Reasoning:
The Massachusetts law violated the Commerce Clause because the effect of its
particular gallonage cap is to change the competitive balance between in-state and out-of-
state wineries in a way that unfairly benefits Massachusetts’s wineries.
The court assumes that the law does not serve any legitimate local purpose that
cannot be reached through a non-discriminatory means.
Further, the court holds that the Twenty-first Amendment and relevant common
law does not exempt alcohol laws, such as the one in question, with discriminatory effects
from the non-discrimination rule of the Commerce Clause.
Finally, the court assumes that the purposes of the Twenty-first Amendment of
5-6
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Chapter 05 - Constitutional Principles
Critical Thinking
It is possible that Massachusetts created the definition of “large” and “small” wineries so as to benefit
in-state wineries. After all, doing so would help sustain local and state wineries, as opposed to having
local and state wineries close due to large out-of-state wineries offering cheaper wine to consumers.
The outcome might have been different if the definition of small wineries included many in-state
wineries because then the state would have had an empirical basis for arguing that the gallonage caps
created were not designed so as to discriminate against out-of-state wineries.
Ethical Decision Making
Any company that is large, and holds substantial market power in a particular market, has the ability
to exert control over prices in a way that benefits itself. A substantial hold on market power can
even enable a large firm to eliminate competition in the product market it operates in by lowering its
prices, outcompeting smaller firms, and merging with other firms. In other words, without any
regulation, large firms have certain privileges that help these firms exert control over other firms
without such privileges. If one believes that small firms, that operate on local and state levels only,
are good for consumers and the economy, then giving only small firms certain advantages might be
justified.
Case 5-3 David Leon Riley v. California and United States v. Wurie, Supreme Court of the
United States 134 S.CT (2014)
Case Brief
Issue:
Was the evidence admitted at trial from Riley and Wuries' cell phones discovered through a search
that violated their Fourth Amendment right to be free from unreasonable searches?
Facts:
The case heard by the Supreme Court as Riley v. California was actually a combination of two cases,
Riley v. California and United States v. Wurie. Both cases involved the seizure of a cell phone.
Riley v. California began in 2009, when David Leon Riley was pulled over for expired
registration tags on his car. It was then discovered that Riley's license had been suspended, which
authorized impounding of Riley's car. Upon an immediate search of the vehicle, illegal weapons were
found, and Riley was placed under arrest. The police then seized and searched Riley's phone without
a warrant, and pictures and videos on the phone indicated that Riley was involved in a recent gang-
related shooting. Police charged Riley in connection with the shooting. Riley moved to suppress the
evidence that was found on his phone.
In United States v. Wurie, Brima Wurie was arrested after police observed him participate in
a drug sale. At the police station, two of Wurie's cell phones were confiscated. Information on the
phones led police to search Wurie's home, where illegal drugs and weapons were found. Wurie was
subsequently charged with drug and weapons offenses. Wurie moved to suppress the evidence that
was found through the seizure of his phones.
5-7
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Chapter 05 - Constitutional Principles
Procedural History:
The trial court in Riley's case denied his motion and Riley was convicted. The California Court of
Appeals affirmed. The district court in Wurie's case also denied his motion, and Wurie was
convicted.
Holding:
The warrantless seizure of a cell phone is a violation of the Fourth Amendment. Riley and
Wuries' requests to suppress evidence gathered from their cell phones were granted.
Reasoning:
The lower courts relied on Chimel v. California, in which it was ruled that police
officers may search a suspect's body and the “area into which he might reach” without a
warrant to protect material evidence or the officer's safety.
The Supreme Court argued that there's no way that the data on a cell phone can be
used as a weapon to harm an officer.
Chief Justice Roberts acknowledged that evidence on phones may be destroyed, but
due to the security features on today's phones, the evidence would likely be destroyed long
before the phone is actually searched.
Due to the highly personal nature of the information stored on today's phones, cell
phones differ from most other objects that would be on someone's person at the time of arrest.
Thus, for the above reasons, cell phones should not be subject to the warrantless search
and seizure procedures allowed by Chimel v. California.
Answers to the questions
Critical Thinking
The analogy is strong in several regards, but is certainly not perfect. The search of either a
phone or a house would likely reveal several personal details to an investigator. Many of
these details may not be pertinent to the case, and some of them may be details that the
searchee would prefer that the world at large did not know about.
However, it's arguable that the search of a phone isn't quite as personal as the search of a
house. After all, while a phone may contain personal data, a home is where one sleeps at
night, where one bathes, where one stores their personal objects, etc. Some may argue that a
search of a home is an even more flagrant invasion of one's privacy. So while the analogy
stands in the sense that both types of searches are often considered invasions of privacy, the
analogy falls apart when one considers the different grades of personal invasions that each
search represents.
The ethical norm that personal privacy protected being from unwarranted searches is an
inalienable right was upheld in this decision. The ethical norm that was sacrificed is the right of
a police officer to search for and seize evidence in order to keep the community safe.
5-8
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Chapter 05 - Constitutional Principles
The “Teaching Skills” and “Teaching Ideas” sections for Chapter Five ask you to use three
hypothetical fact situations, which are presented after the skills and ideas sections.
Tips for creating and using hypothetical Create hypothetical from news stories. The “Mad
questions About Milk” scenario is based upon on NPR story I
heard while driving to work one day.
Create hypotheticals from real cases. Use Westlaw and
look for cases that cite the cases you highlight in the
chapter. Then, shorten and simplify the facts for use as
a hypothetical.
When you use a hypothetical, give your students
specific instructions for what they should do with the
facts, e.g., ask good questions.
Use a hypothetical at the beginning of class, to assess
how well students understood a particular case. If they
understood it, you can spend less time on that particular
case.
Have students read the hypotheticals individually, but
allow them to discuss the hypotheticals in groups of
three of four before discussing the hypotheticals as a
class.
TEACHING IDEAS
Connecting to the Core For hypotheticals one, two, and three, ask your students to identify a
business issue the facts raise that is not a legal questions.
Here is an idea for each hypothetical:
Hypothetical One: If you owned a small family business, and the
neighborhood started to become a high crime neighborhood (this is what
really happened), how would you decide whether to relocate your business?
What factors would be important?
Hypothetical Two:
Think of two concrete ways Dr. Snell could market his chiropractic services
that would not raise any concerns.
Hypothetical Three
What kinds of production questions does this hypothetical fact situation
raise? Can you think of any other industries that have faced something
similar, e.g., newer companies have an advantage because they started out
with new processes?
Teaching Basics The first thing you want to do is set the stage for your students to be on
track when looking at the hypotheticals. You may want to give them all
three hypotheticals in the same handout, without any questions that
specifically link a case they read to a particular hypothetical. Then, ask the
students, “Which case that you read for today will help you respond to each
hypothetical?”
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Chapter 05 - Constitutional Principles
Advanced Teaching Here are more advanced questions for each hypothetical:
Hypothetical One
Explain: (1) one significant way in which the David Lucas case provides
support for the McCoys’ argument, and (2) one significant difference
between the two cases that makes the David Lucas case less helpful than the
McCoys would prefer.
Hypothetical Two
Hypothetical Three
HYPOTHETICAL ONE*
Recently, Oscar’s II restaurant, located in Seattle, Washington, was sued by the city of Seattle under
the state’s 1988 state drug-abatement law. This law gives the city the power to shut down a business
temporarily if it has credible evidence that drug dealing is taking place within a business
establishment. With regard to Oscar’s II restaurant, the city had set up 18 undercover drug buys inside
Oscar’s II. After the drug buys, the city shut down Oscar’s II for a period of one year because it
believed the restaurant allowed, furthered, and condoned drug dealing within their business
establishment. The city made no arrests.
The McCoys, owners of Oscars II and the land on which Oscars II sits, have filed a lawsuit against the
* Hypothetical One is based upon the facts in City of Seattle v. McCoy, 48 P.3d 993 (Wash.App. Div.
1)(2002).
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Chapter 05 - Constitutional Principles
state and the city, arguing that the Washington state law allowed the city to “take” their property, and
that they should be compensated for the taking. Although the restaurant will be shut down for just one
year, the McCoys argue that a temporary closure is the death knell for a small family business such as
theirs. To pursue a legal fight, the McCoys have refinanced their home mortgage and are in serious
debt.
HYPOTHETICAL TWO**
The state of Illinois has passed a law called the Illinois Medical Malpractice Act (IMMA). This
Department of Professional Regulation, which administers the IMMA, filed a complaint against
chiropractor Joseph Snell alleging that, among other things, he violated the advertising restrictions set
forth in section 26(2) of the act by displaying in his office waiting room a 27-page booklet. Section
26(2) states, “It is unlawful for any person licensed under this act to use testimonials or claims of
superior quality of care to entice the pubic.” The booklet contained preprinted forms entitled “My
Chiropractic Story.” Each form contained 14 questions addressed to Snell’s past or current patients.
The questions: What led you to try chiropractic care? What was your experience with the doctor?
Did the chiropractic services help? Would you recommend this form of care to others? Answers to
the questions were supplied by the patients in their own handwriting, and each form was accompanied
by the patient’s photograph and signature.
The administrative law judge who heard the case ruled that the booklet contained testimonials in
violation of the act. The judge recommended that Snell be reprimanded and pay a fine. When an
administrative law judge renders an opinion, an individual is allowed to appeal the decision to a
regular court. Snell decided to appeal the administrative court’s decision to a federal district court. In
particular, he asked the court to rule on the question whether the IMMA, section 26(2) violates his
First Amendment rights. He believes the IMMA, section 26(2) is an invalid restriction on commercial
speech.
HYPOTHETICAL THREE***
California fluid milk standards, established by government regulators, are the highest in the United
States. California produces and sells the most nutritious milk in the country. California law requires
milk producers to add milk solids and extra nutrients to milk before it can go on to grocery store
shelves. The state is trying to maintain the good health of its residents, and is especially interested in
preventing osteoporosis.
The state’s regulations impose the same requirements on out-of-state milk producers. All milk sold in
California must meet the state’s nutrition requirements.
* * Hypothetical Two is based upon the facts in Snell v. Department of Professional Regulation, 742
N.E.2d 1282
(Ill.App. 4 Dist.)(2001).
* ** I heard a story on NPR that focused on Mad-About-Milk’s concerns. I do not believe a lawsuit was
ever filed, but I remembered the facts because I knew they would work well with a commerce clause scenario.
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Chapter 05 - Constitutional Principles
producers by asking them to change their processing plants so they can produce milk that meets
California’s requirements.
References:
Wilbert J. McKeachie, Teaching Tips: A Guidebook for the Beginning
College Teacher, 7th ed., 1978.
1. All branches of government operate under checks and balances. The executive branch, the President,
can veto a legislation passed by the legislation branch, Congress. However, legislation can then over
turn the veto by a vote of two thirds of the members of Congress. The judicial branch can strike down
an act by Congress or the President, if it is found unconstitutional.
2. When Sue claims the Commerce Clause increase government power, she would be speaking of the
federal government. However, when Sam says the clause limits government power, he would be talking
about the state government.
3. The purpose of the Contract Clause is to prevent the passing of a law that unreasonably interferes with
a contract that already exists.
4. Protection of corporate political speech is protected differently than corporate commercial speech
because in commercial speech there are more restrictions. The restrictions are known as the Central
Hudson analysis.
5. The Court in Sorrell v. IMS agreed with the companies. The court reasoned that Vermont had
failed to demonstrate a government interest that would be significantly supported by the
Prescription Confidentiality Law. As a result, the court ruled that the companies’ right to free
speech under the First Amendment outweighed any public benefits or privacy benefits to doctors
that would potentially result from the law in question. Justice Breyer dissented, along with two
other justices, that the regulatory objectives of the law in question did merit the small limitation
that the law would place on companies’ free speech.
6. The appellate court affirmed the District Court’s decision. The reason for this decision is that all
out-of-state wineries were entitled to the same rights according to the law in question as in-state
wineries. Consequently, the law was not discriminating against out-of-state wineries to help in-
state wineries.
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Chapter 05 - Constitutional Principles
7. The Supreme Court ruled unanimously in favor of Reed, arguing that the sign restrictions were
unconstitutional because they were content-based restrictions, meaning that the restrictions were
applied differently depending on the message of the sign. The town of Gilbert argued that the
restrictions do not single out a single nonprofit or church but restrict all of them, and the Court
countered this argument by stating that the First Amendment prohibits censorship of all speech on
a whole topic. The Court also held that the town had no compelling interest in adding restrictions
to only a certain type of sign, and so the restrictions cannot survive strict scrutiny.
8. The reasoning underlying the court’s decision seems to be that the public interest in mitigating
animal cruelty does not significantly outweigh an individual’s right to free speech. In other
words, the court seemed to reason that in the context of selling videos of animal cruelty, the
content of the speech should have no impact on a person’s right to free speech. The court
provided a broad interpretation of the First Amendment.
9. The court vacated Milam's guilty plea, and did so for several reasons. First, the court ruled that a
fraternity house is effectively no different than a private residence (as opposed to a hotel or
apartment building) in the Fourth Amendment protections it provides. No part of the fraternity
house is open to the general public, and the officers should not have expected normal entry into
the house. Thus, the officers had no right to search the property without a warrant.
Second, even though the police met Neagli upon their entrance into the house, Neagli never
consented to a search of the premises. The officers didn't even ask Neagli his name, let alone ask
if they could search the house. Neagli was understandably surprised at the police presence and
answered the officers' questions even though their presence was illegal.
Finally, in Quintana v. Commonwealth, the court ruled that any information discovered as a result
of an officer's unlawful presence was “improper and thereby tainted the search warrant based on
it.” The same logic applied here: the officers' unlawful entry irreparably tainted any consent
allegedly obtained from Neagli. Thus, the search of Milam's room and the seizure of his
possessions was unlawful.
10. The Wyoming Supreme Court upheld the court of appeal's decision. The curtilage of one's home
is defined as the land immediately surrounding it, including any closely associated building and
structures, but excluding nearby buildings and structures that contain the separate activities of
other persons. A home owner can have a reasonable expectation of privacy within the curtilage of
her home; the question at hand in this case was whether the parking garage was within the curtilage
of Dumstrey's home.
The Court ruled that because the parking garage underneath the apartment building was shared
and used by all of the residents of the building and not just Demstrey, it did not fall within the
curtilage of Demstrey's home. Because Demstrey had no individual claim over any part of the
garage, he could not claim a reasonable expectation of privacy and therefore Demstrey's arrest in
the garage did not occur during a warrantless entry.
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Another random document with
no related content on Scribd:
Uutimineen
kellokukan sineen
huone hukkuu udunhimmeään.
AKORDI.
HILJAISIMMAT.
Me, jotka olemme maailmassa hiljaisimmat ja köyhimmät,
emme pelkää Kuolemaa.
HARTAUS.
KEVÄTHÄMÄRÄ.
Ui sateen henki yllä kaupungin, ja lyhdyt kuni silmät hunnun
takaa niin salamyhkäisinä hehkuvat.
BLAYAN PRINSSI.
TRUBADUURILAULU.
AAVELINNA.
SULEIKA.
II
III
IV
Oi, miksi halvan neidon näin petit, mahtavin? Et köyhä
armaani ollutkaan, josta lauloin, haaveksin! Oot rikas, kultaa
sulla on täynnä kammiot ja kallein helmin kivetyt sun linnasi
permannot.
YÖ KEITAALLA.
NETKRON SADUSTA.
Netkron laulu.
Pyhä lintu.
»Ape rek!»
KEVÄT.
KULTAISET PALLOT.
KELLASTUNEESTA VIHKOSTA.
Tähti.
Tähtikruunu:
TÄHTISUMUA.
UNEKSIJAT.
Suur Uneksija parhain kun hylkäs tämän maan, niin meidät
suossa harhain hän jätti tarpomaan.
Ei epäilyksen peikot
voi meitä käännyttää:
jos voimamme on heikot
ja murhe näännyttää,
PUISTOKUJA.
Näin usein tuntuu: on kohtalomme kuin pitkä, varjoisa puistotie.
Me sitä käymme, ja loputonten se hämäryyksien halki vie.
Updated editions will replace the previous one—the old editions will
be renamed.