Fall 2001 Constitutional Law Exam

YALE LAW SCHOOL

Fall Term 2001 Examination

Constitutional Law

January, 2002

(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. 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

(One Half)

The Prohibition on Human Cloning Act of 2001 provides:

 
(1) The Congress finds that:

(a) human cloning is technologically possible within the foreseeable future;
(b) the creation of businesses and research facilities that would engage in such cloning
(i) has significant effects on interstate commerce;

• • (ii) would make substantial use of instrumentalities of interstate commerce; and
    (iii) make substantial use of goods shipped through interstate commerce;
• (c) human cloning violates basic constitutional liberties of unborn human beings and poses the danger of unforseen genetic defects, which, in turn would have significant effects on the national economy;
  (d) the belief that parents can select certain traits for their children through genetic engineering
  • (i) will encourage children being loved and valued only for possessing certain characteristics; and
    (ii) will cause parents to be less likely to understand their children as emerging autonomous beings who develop in continuous interaction with their physical and social environments and more as particular sets of traits that they have purchased;

  (d) technologies of human cloning require the destruction of multiple embryos and the execution of unborn life;
  (e) human cloning poses the danger of leading to the creation of a worker caste or a series of different castes based on genetic characteristics in violation of the Thirteenth Amendment;
  (f) human cloning will inevitably lead to forms of invidious discrimination against the poor and against racial minorities, because the standards for what is genetically desirable will be those of society’s economically and politically dominant groups; and
  (g) human cloning will enhance discrimination against women, by

  • (i) devaluing the status of motherhood;
    (ii) encouraging women to take drugs and suffer invasive treatments in order to harvest eggs;
    (iii) placing increased pressure on women to have abortions if attempts at genetic engineering of an embryo misfire; and
    (iv) encouraging genetic engineering that will reinforce stereotypical thinking about desirable feminine traits.

(2) It shall be unlawful for any person to clone or replicate a human individual by artificially using genetic material derived from that individual.

(3) Nothing in this Act shall prohibit

(a) in vitro fertilization;
(b) bona fide scientific research involving the cloning of nonhuman animals;
(c) bona fide scientific research involving cloning of human cells, or human tissues.

(4) For purposes of this Act “clone or replicate” includes creating a replica of a human individual with altered genetic material in order to enhance, eliminate or modify features of that individual.

(5) For purposes of this bill the word “person” includes a State or political subdivision thereof, including, without limitation, any state-run hospital, medical center, provider of health services, or research facility. A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in a Federal or State court of competent jurisdiction for a violation of this Act.

Discuss the constitutional issues raised by this legislation.

Question Two

(One Half)

Throughout the course we have discussed the possibility that constitutional change (and changes in constitutional interpretation) are best explained by social movements and party politics, and that this is the source of their democratic legitimacy. Judges and Justices appointed by the major political parties reflect the changing boundaries of political imagination, and change the meaning of the Constitution accordingly.

(1) If this is so, does this mean that decisions like The Civil Rights Cases and Plessy v. Ferguson represent legitimate changes in the meaning of the Thirteenth and Fourteenth Amendments because they reflected changes in party politics and the resurgence of white interests– particularly in the South– that occurred following the Compromise of 1877? Or do you believe that some changes in constitutional meaning remain illegitimate even if are backed by successful social movements, changes in popular consensus, and the views of the dominant political parties, and are subsequently ratified by judges and Justices who reflect these views? If you believe this to be the case, how would you distinguish legitimate from illegitimate constitutional change?

(2) Consider the recent (post-1991) decisions of the Rehnquist Court that we have studied in this course in the areas of race relations and federalism. Whether you disapprove of those decisions or applaud them, would you agree that they have produced a successful constitutional transformation and that their constitutional legitimacy is as firmly established as, say, the decisions of the Roosevelt majority from 1940 onwards? What criteria should one consider in answering this question?

(3) If the Rehnquist Court were to overrule Roe v. Wade next year, would this decision be as legitimate or illegitimate as the federalism and race relations decisions, in your view?

END OF EXAMINATION