Fall 2006 Constitutional Law Exam

YALE LAW SCHOOL

Fall Term 2006 Examination

Constitutional Law

January, 2007

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of two essay questions. Each has equal weight in determining your grade. Your answers to the two 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. I prefer that you type your exam. If you use bluebooks, 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. Because other students will be taking this exam at different times, please do not speak to any other students about the contents of the exam until the examination period is over.

7. Good luck.

Question One
(One Half)

The State of Confusion defines the crime of sexual abuse of a minor as follows:

531.01 Sexual Abuse of a Minor

(A) An offender commits the crime of sexual abuse of a minor if he or she is over the age of 16 and has sexual relations

(2) with a person of the same sex who is under the age of 21 and is at least three years younger than the offender.

(B) “sexual relations” is defined as (1) genital, oral, or anal intercourse, (2) the penetration, however slight, of an object or any part of a person’s body into the genital or anal opening of another person’s body, or (3) knowingly touching, directly or through clothing, the victim’s genitals, anus, or female breast.

* * * * *

Jerry Junior recently turned 17. To celebrate, he went to a party with some friends and met Orville Older, who is 25. The next morning, Jerry’s parents were shocked to discover that Jerry and Orville had spent the night in Jerry’s room. They were very angry that Orville was so much older than Jerry, and complained to the police, who arrested Orville for sexual abuse of a minor.

Orville admits to having consensual sex with Jerry but argues that the law is unconstitutional as applied to him.

(1) Discuss the constitutional issues presented by the case.

(2) Suppose the federal government sought to equalize the age of consent for same-sex and opposite-sex conduct. Would Congress have the power to pass such a law? If so, how would you recommend that it be drafted to avoid constitutional problems?

Question Two
(One Half)

Consider the following excerpt from Judge Richard Posner, A Political Court, 119 Harv. L. Rev. 31 (2005):

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[T]he Supreme Court, when it is deciding constitutional cases, is political in the sense of having and exercising discretionary power as capacious as a legislature’s. It cannot abdicate that power, for there is nothing on which to draw to decide constitutional cases of any novelty other than discretionary judgment. To such cases the constitutional text and history, and the pronouncements in past opinions, do not speak clearly. Such cases occupy a broad open area where the conventional legal materials of decision run out and the Justices, deprived of those crutches, have to make a discretionary call.

Constitutional cases in the open area are aptly regarded as “political” because the Constitution is about politics and because cases in the open area are not susceptible of confident evaluation on the basis of professional legal norms. They can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms. Almost a quarter century as a federal appellate judge has convinced me that it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly. When one uses terms like “correct” and “incorrect” in this context, all one can actually mean is that one likes (approves of, agrees with, or is comfortable with) the decision in question or dislikes (disapproves of, disagrees with, or is uncomfortable with) it. One may be able to give reasons for liking or disliking the decision - the thousands of pages of Supreme Court Forewords attest this to any doubter - and people who agree with the reasons will be inclined to say that the decision is correct or incorrect. But that is just a form of words. One can, for that matter, notwithstanding the maxim de gustibus non est disputandum, give reasons for preferring a Margarita to a Cosmopolitan. The problem, in both cases, is that there are certain to be equally articulate, “reasonable” people who disagree and can offer plausible reasons for their disagreement, and there will be no common metric that will enable a disinterested observer (if there is such a person) to decide who is right. The most striking characteristic of constitutional debate in the courts, the classroom, and the media - and a sure sign that such debate eludes objective resolution - is its interminability. Everything is always up for grabs intellectually, though not politically. To borrow an apothegm from James Fitzjames Stephen: when there is disagreement on a constitutional issue, the “minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.”

If this point is correct … it has implications for the role in our political system that an inherently, and not merely accidentally, lawless judicial institution should play. I use “lawless” in a nonjudgmental though unavoidably provocative sense. I mean the word simply to denote an absence of tight constraints, an ocean of discretion. If a judge decides to start a trial on Tuesday rather than on Monday, it would be laughable to think the decision dictated by “law” when all that had determined it had been the availability of witnesses or the state of the judge’s appointments book. The judge’s action would be the lawful act of a judicial officer, but it would not be determined by a legal rule or standard. He would neither be interpreting in the sense of searching out a meaning created by someone else - a legislature perhaps - nor following precedent. One could try to save professional appearances by saying that the judge was just obeying the law that told him to exercise discretion, but that too is just a form of words.

From a practical standpoint, constitutional adjudication by the Supreme Court is also the exercise of discretion - and that is about all it is. If, to take an example from last Term, [Roper v. Simmons] the Court is asked to decide whether execution of murderers under the age of eighteen is constitutional, it is at large. Nothing compels a yes or a no. The Justices who formed the majority in Roper did not have to worry about being reversed by a higher court if they gave the “wrong” answer, let alone being removed from office for incompetence or having their decision nullified by Congress, the President, or some state official. That is, there were no external constraints on the Justices’ decision.

… .

If neither “law” in the sense of an analytical technique that differs from policy analysis, nor policy analysis (in some sense “objective,” to distinguish it from political judgment) itself, is going to dictate the outcome of most of the constitutional cases that reach the Court, then how should the self-conscious Justice, the Justice (improbably) persuaded by my analysis, conceive of his or her role? There are two main alternatives. One is for the Justice to accept the political character of constitutional adjudication wholeheartedly and vote in cases much as legislators vote on bills. The other alternative is, feeling bashful about being a politician in robes, to set for himself or herself a very high threshold for voting to invalidate on constitutional grounds the action of another branch of government. The first, the “aggressive judge” approach, expands the Court’s authority relative to that of other branches of government. The second, the “modest judge” approach, tells the Court to think very hard indeed before undertaking to check actions by other branches of government. Judges can often be sorted into one or the other of these categories even if they do not, as most do not, think in these terms; a social scientist insists on the importance of unconscious motivations.

… .

Thus, in the modest role, the Justice is still a politician, but he is a timid politician. He wants the Supreme Court to play a role a bit like that of the House of Lords after its authority was limited to delaying legislation enacted by the House of Commons. The Court can keep its thumb in the dike only so long; if public opinion is overwhelming, the Justices must give way, as any politician would have to do.

If the Justices acknowledged to themselves the essentially personal, subjective, and indeed arbitrary character of most of their constitutional decisions, then - deprived of “the law made me do it” rationalization for the assertion of power - they probably would be less aggressive upsetters of political and policy applecarts than they are. That, in my opinion, would be all to the good. But it is too much to expect. People don’t like to be in a state of doubt. Judges don’t like to think they are tossing a coin when they decide a difficult case. I have had the experience - I think all judges have - that sometimes when I start to work on a case I am uncertain how it should be decided - it seems a toss-up. Yet I have to decide (the duty to decide is the primary judicial duty), and the longer I work on the case, the more comfortable I become with my decision. And “comfortable” is the word; there is a psychological need to think one is making the right decision rather than just taking a stab in the dark. This need is related to my earlier point about judges rarely acknowledging to themselves the political dimension of their role, an acknowledgement that would open a psychologically disturbing gap between their official and their actual job descriptions. A judge who did not become comfortable with his decision by the time it was handed down might be tormented in the future by doubts about whether the decision had been correct. No one likes to be tormented; and judges do not like to look back and worry about how many of their thousands of votes may have been mistaken because they were really just stabs in the dark. (I have voted in almost 5000 argued cases.) So as the years pass they become more confident, because they have behind them an ever-longer train of decisions that they no longer doubt are sound.

… .

Nonpartisanship, unlike ideological neutrality, is an attainable ideal; indeed, it is the nearly automatic consequence of the Justices’ not having to stand for election or kowtow to politicians. It may be only a halting first step toward objectivity, but it is the cornerstone of a realistic conception of the “rule of law” - a concept, a practice, of enormous social value. In its most extravagant formulations, the sort one encounters in “Law Day” celebrations, the rule of law signifies government by legal rules rather than by individuals wielding discretionary power. The judges are just the medium through which law speaks - they are the oracles of the law, in Blackstone’s phrase. But if you trace the idea of the rule of law back to its origin in Aristotle’s concept of corrective justice, what you find is a modest but invaluable - and in favorable conditions realistic - expectation that in deciding a case the judge will set to one side the personal characteristics of the litigants. Justice is blindfolded in this way in order to prevent judges from being swayed by the politics, personalities, connections, etc., of the litigants - for law administered by judges swayed in those ways does not provide an adequate framework for an orderly and prosperous society.

In a legal system as inherently undisciplined as ours, with its legally enforceable eighteenth-century Constitution, its layering of federal on top of state law, its effectively tricameral federal legislature (tricameral because of the President’s veto power), its weak political parties, and its lack of career judiciaries - a legal system embedded, moreover, in a society as individualistic as ours (Justices no more than other Americans can be expected to be content to be wallflowers) - a more ambitious conception of the rule of law would be quixotic. For we must not confuse “nonpartisan” with “nonpolitical.” One can be the former without being the latter - or even be the latter without being the former, for there are people whose identification with a political party is unrelated to a political preference, being a matter of family tradition or personal friendships rather than of political conviction.

… .

I sense convergence between the pragmatic approach to constitutional adjudication and judicial modesty. The pragmatist wants to base decisions on consequences - and it is very difficult to determine the consequences of a challenged policy if you squelch it at the outset. The Holmes-Brandeis idea of the states as laboratories for social experimentation is both quintessentially pragmatic (the term that John Dewey, the great pragmatic philosopher, preferred for his philosophy was “experimentalism”) and a fundamental principle of judicial modesty.

… .

If the Supreme Court is inescapably a political court when it is deciding constitutional cases, let it at least be restrained in the exercise of its power, recognizing the subjective character, the insecure foundations, of its constitutional jurisprudence.

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(1) Do you agree with Judge Posner’s assessment of constitution adjudication? Does it accurately describe your understanding of constitutional history and the processes of constitutional change we have studed in this course? What episodes in history support or undermine his claims?

(2) Do you agree with Judge Posner’s assumption that theories of constitutional interpretation have little value for deciding the kind of hotly contested cases that regularly come before the Supreme Court? Do you agree with his fairly restricted conception of the rule of law?

(3) Does Judge Posner’s suggestion that courts should generally shy away from invalidating the decisions of elected officials necessarily follow from his analysis of Supreme Court decision making? Is his normative advice correct, but for different reasons than the ones he gives? Or are both his analysis and his prescription faulty?

END OF EXAMINATION