Fall 1998 Constitutional Law Exam

YALE LAW SCHOOL

Fall Term 1998 Examination

Constitutional Law

January, 1998

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

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, with one exception: You may not use Lexis, Westlaw, or other electronic databases.

7. Good luck.

Question One

(One Third)

In 1996, the United States Congress passed the Family Values Act of 1996, which contained the following provisions regarding the visitation rights of grandparents.

Section 503 Grandparents’ visitation rights.

(1) Congressional Findings of Fact. The Congress has determined that:

(a) Grandparents have an important role to play in the creation and maintenance of loving, stable, families. Their long experience in child raising and their connections to both parent and child provide an important link of continuity between the past and the present. Moreover, in many parts of the country, and in the many ethnic and religious traditions represented in this country, grandparents are an integral part of extended families that are central to effective child rearing.

(b) Loving and stable families conduce to a happy and mentally healthy populace and a strong, vibrant economy.

(c) Increasing numbers of grandparents have been unreasonably denied the rights to visit their minor grandchildren, whether or not this would be in the best interests of the children.

(d) These denials of visitation rights have exacerbated domestic discord both within and without the nuclear family relationship, and have led to bitter struggles that increase emotional harm to children.

(e) These denials constitute a national problem, because the breakdown of healthy family relationships harms the mental health of the nation and threatens the continuance of a vibrant national economy.

(f) Economic conditions have led members of many families to live in separate parts of the country. As a result, increasing numbers of grandparents live in geographic isolation from their grandchildren and must travel in interstate commerce to visit them. Unreasonable denials of visitation rights have a substantial effect on interstate commerce.

(g) State governments have failed to create sufficient protections to guarantee grandparents reasonable rights of visitation. As a result, the Congress has the power under Section Five of the Fourteenth Amendment to protect the familial rights of grandparents.

(2) Creation of rights of visitation. Notwithstanding any state or municipal law to the contrary, state courts with relevant jurisdiction over visitation rights shall, upon petition filed by a grandparent of a minor child, award reasonable rights of visitation to the grandparent with respect to the child when it is in the best interest of the minor child if:

(a) One or both parents of the child are deceased;

(b) The marriage of the parents of the child has been dissolved;

(d) The minor child was born out of wedlock and not later legitimated in accordance with applicable state law; or

(e) The minor child is living with both natural parents who are still married to each other, and, whether or not there is a broken relationship between either or both parents of the minor child and the grandparents, either or both parents have used their parental authority to prohibit a relationship between the minor child and the grandparents.

Philip Von Trapp and Luisa Smith Von Trapp were married in 1992. In 1993, their daughter Kelly was born. Luisa Von Trapp, the biological mother, died of cancer in December 1995. In July 1996, Philip remarried. His new wife, Cheryl Von Trapp, legally adopted the child in October 1996.

In December 1996, Gerald and Joyce Smith, Luisa’s parents and Kelly’s biological maternal grandparents, filed a petition for unsupervised visitation with the child in the Domestic Court of the State of Confusion, invoking their rights under Section 503, and alleging that Philip and Cheryl had refused reasonable visitation with the child and that visitation was in the child’s best interests. During all relevant times all parties were residents of the State of Confusion.

The Von Trapps argued that they had a fundamental privacy right to determine with whom the child associated and that they had strong personal objections to visitation by the grandparents.

At a non-jury trial in the Domestic Court, the grandparent Smiths testified that they had played an active role in the first two years of Kelly’s life, but that soon after Luisa, the biological mother, died, they were denied all unsupervised visitation with their grandchild and limited to three supervised visits a year, at Easter, Thanksgiving and Christmas. The Smiths claimed that Philip’s new wife, Cheryl Von Trapp, insisted that visits be strictly limited and that either Philip, Cheryl, or a trusted third party be present during any such visit.

The Smiths explained that the limitations on visitation were completely unacceptable. They argued that it was painful to them to visit the home of their deceased daughter where their former son-in-law now lived with his new wife, and they were offended that the two would question their right to be alone with their granddaughter Kelly.

The Von Trapps countered that, as the child’s parents, they had a constitutional right to withhold or condition visitation. Cheryl testified that she and Philip ultimately decided to limit visitation and require supervision because of their concerns about the grandparents’ demonstrated hostility toward them and the grandparents’ lack of respect for their parental judgment.

The trial court ruled in favor of the grandparents and ordered unsupervised visitation with the child. In so ruling, the trial court found that the Von Trapps “are loving, nurturing, and fit parents for the minor child,” but that their “substantive reasons … for terminating all visitation or at the maximum permitting only supervised restricted visitation do not rise to the level of severity that can be regarded with credibility by this Court.” The trial court determined that it was in the best interests of the child to have a relationship with her maternal grandparents. The court summarily rejected a constitutional challenge to Section 503. The Confusion State Supreme Court affirmed the judgment of the trial court.

The Supreme Court of the United States has granted certiorari limited to the question whether Section 503 is constitutional. Discuss the constitutional issues raised by the case.

Question Two

(One Third)

(a) Is Bolling v. Sharpe, 347 U.S. 497 (1954), correctly decided? What, if any, theory of constitutional interpretation justifies courts reading an equality principle identical to the Fourteenth Amendment’s Equal Protection Clause into the Fifth Amendment’s Due Process Clause? Does this ability to add things that are not contained in the constitutional text have any logical stopping point? How does one know when this kind of interpretative strategy is permissible?

(b) Is Bolling consistent with the argument that the House and Senate have no constitutional power to censure the President of the United States because the Constitution does not expressly grant them the power to do so although it does give the power of impeachment to the House and the power of removal to the Senate?

(c) If courts can add texts or principles to the Constitution, are they also permitted to delete texts or principles from the Constitution? What examples of constitutional redaction come to mind? What theory of constitutional interpretation, if any, justifies them?

Question Three

(One Third)

Many theorists argue that judicial review is actually a democratic institution because constitutional interpretation generally responds to social movements and Justices do not get appointed unless their views fall within the mainstream of dominant political opinion at the time of their appointment. However, these are external explanations of judicial behavior and constitutional change. They do not tell judges what to do in order to behave consistently with democratic principles. They simply note that, in the long run, judges respond to larger political and social forces.

If one believed this external analysis of constitutional change, what advice should we give judges about their appropriate role in interpreting the Constitution? Should judges attempt to discern what political and social changes are taking place and deliberately further them? On the other hand, should they attempt to rein in political and social changes contrary to the political forces that originally led to their appointment? Should they attempt to further social change with constitutional rulings? Or should they attempt to resist change– like the Justices in the 1930’s– as long as possible, until it becomes completely clear that there has been a fundamental alteration in political life? If the external analysis is correct, does it matter which of these courses judges take? Or does the external analysis rest on the paradoxical notion that judges must believe (however falsely) that they are somehow isolated from political forces and that they do not respond to them?

END OF EXAMINATION