Fall 1997 Constitutional Law Exam
YALE LAW SCHOOLFall Term 1997 ExaminationConstitutional LawJanuary, 1998(Self-Scheduled– Twenty Four Hours)Professor BalkinInstructions
1. This examination consists of three essay questions. Each has equal weight in determining your grade. Your answers to the three questions combined should total no more than 6,000 words.
2. Please read each question carefully and pay attention to what you are being asked to do.
3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.
4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.
5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.
6. This exam is open book.
7. Good luck. Question One
In response to litigation challenging its marriage laws, the Confusion State Legislature passed a new marriage statute that allowed same sex couples the same rights to marry as currently enjoyed by opposite sex couples. In response, the United States Congress passed the We’re Really Serious This Time Defense of Marriage Act of 1998. The Act has two parts. The first part stated that no marriage license may be issued in any state and no marriage may be legally recognized in any state unless the marriage was contracted “between a man and a woman.” The Act further requires state officials to refuse to issue marriage licenses to any couple other than “a man and a woman.”
The second part of the Act withdrew all federal subsidies for state programs providing prenatal care, state supported marriage counseling programs, and state programs for preventing domestic abuse, unless (1) state governments pass laws stating that legal marriages will only be recognized “between a man and a woman,” and (2) state officials enforce such rules in the issuance of marriage licenses. The terms “man” and “woman” were not defined in either part of the statute.
Shortly thereafter, the State of Confusion passed the Comprehensive Marriage Act of 1998, defining marriage as “a solemn agreement between a man and a woman.” The Act then proceeded to offer the following definitions:
For purposes of this Act (1) “man” means a person who (a) is genetically identified as male, (b) who has male sex organs, (c) or who appears to be male. (2) “woman” means a person who (a) is genetically identified as female, (b) who has female sex organs, (c) or who appears to be female.
(2) A second license was awarded to a person identifying himself as male and another person who claimed to be a hermaphrodite with some male and some female sex organs.
(3) A third license was awarded to a woman and to a person identifying himself as male and who claimed he had male sex organs, but who also stated that he had an XYY chromosome instead of an XY pair.
(4) A fourth license was awarded to a man and to a person who identified herself as female and dressed as a female but who also admitted that she used to be a man before taking a course of hormone treatments and undergoing sex change surgery.
Upon hearing of that officials in the State of Confusion had issued marriage licenses in these cases, the U.S. Department of Health and Human Services announced that the State of Confusion was in violation of the We’re Really Serious Act and that the Department would immediately withdraw all funding for the relevant programs mentioned in the Act to the State of Confusion. The State of Confusion then informed the four couples that their marriage licenses were invalid. The couples then brought an action in federal court challenging the constitutionality of the We’re Really Serious Act of 1998 and the Comprehensive Marriage Act of 1998 both facially and as applied to their cases. The state of Confusion, in turn, sued the Secretary of Health and Human Services claiming that the We’re Really Serious Act of 1998 was unconstitutional.
Discuss the constitutional issues raised by the litigation. For purposes of this question you may assume that between them the State of Confusion and the four couples seeking marriage licenses have standing to raise all constitutional issues that may be involved.
Question Two
Most (but not all) of the materials we have read in this course have involved interpretations of the Constitution by members of the United States Supreme Court. On the other hand, we have repeatedly seen that judicial interpretations of the Constitution tend to respond to large scale changes in political climate and to the demands of successful social movements.
To what extent is this descriptive claim– to the extent that it is accurate, which it may not always be– also a normative claim about the proper role of judges in a constitutional democracy? In other words, to what extent should judges interpreting the Constitution pay attention to and deliberately attempt to respond to large scale changes in political climate or to the growth and ascendance of new social movements as a justification for how they interpret the Constitution?
In the alternative, is the proper approach– as Justice Kennedy suggested in his interview with our small group– to ignore existing public opinion and decide cases purely on the basis of sound constitutional principles and good legal analysis? Could one defend this approach– although Justice Kennedy himself did not suggest this possibility– on the grounds that such a deliberate attempt to separate law from politics might result in a much more faithful reflection of the political mores of one’s time than any conscious attempt to respond to political consensus could?
Please construct an essay answering these questions, drawing on historical examples and cases we have studied in this class.
Question Three
This question has two parts.
(1) Please answer the following multiple choice question:
The United States Constitution has been amended (a) fewer than twenty-six times. (b) twenty-six times. (c) twenty-seven times. (d) more than twenty-seven times. (e) none of the above.
(2) Write an essay explaining and defending your answer to part (1), drawing on historical examples and legal materials we have studied in this class.
END OF EXAMINATION |
||||