Fall 2004 Constitutional Law Exam

YALE LAW SCHOOL

Fall Term 2004 Examination

Constitutional Law

January, 2005

(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. 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)

After extensive debate, Congress is about to pass the Protection of Traditional Families Traditions Act of 2005 (POTFA). The most recent draft of the bill provides:

Section 1. Name. This Act may cited as the Protection of Traditional Families Act of 2005 (POTFA).

Section 2. Findings. The Congress finds that:

(a) Preservation of the traditional family unit consisting of one parent of each sex is a compelling interest. The adoption of children by same-sex couples or by homosexual single persons undermines that interest because it hinders children from learning about their gender and their sexuality under the guidance of parents in a traditional family unit.

(b) The provision of adoption services by both public and private agencies is a multibillion dollar industry which has substantial effects on interstate commerce.

(c) The demand for adoptive children is significant in many states, and many prospective parents sometimes travel great distances, and cross state lines, in order to find appropriate children to adopt. Prospective parents often pay large sums of money for the privilege of adoption.

(d) The Congress has authority under section 5 of the Fourteenth Amendment to protect the Fourteenth Amendment rights of parents who wish to provide a secure and stable home environment for their children by giving them up for adoption, as well as the the Fourteenth Amendment rights of children.

(e) The Supreme Court’s 2003 decision in Lawrence v. Texas did not recognize any fundamental right and merely held that states could not criminalize same-sex sodomy out of purely moral objections to the practice.

Section 3: Limitations on adoption. No person shall be eligible to adopt a child if that person is homosexual.

Section 4: Facilitation of illegal adoptions made criminal. Any person who knowingly facilitates an adoption of a child to a homosexual person shall be liable to the parent or guardian of the child for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.

Section 5: Background checks required. All state and federal agencies which participate in or facilitate adoption services, or which match children to prospective adoptive parents, shall check the backgrounds of all applicants for adoption to ensure that they are not homosexual. States which fail to implement a method for such background checks within 60 days after the passage of this Act shall forfeit all federal money for child care services until such time as they produce a reliable method of compliance with this Act.

Section 6: Definitions. For purposes of this Act,

(a) the word “person” means any natural person, partnership, corporation, association, or other legal entity, including any State or political subdivision of a State.

(b) the word “homosexual” means a natural person

* * * * *

You are an attorney working for the Senate Judiciary Committee. Give your advice on the constitutional issues that the bill raises, and whether the bill can survive a constitutional challenge in its current form. What steps should Congress take to increase the chances that the bill would survive such a challenge?

Question Two

(One Half)

Consider the following argument:

“The Joint Opinion in Casey v. Planned Parenthood of Southeastern Pennsylvania argued that it would be inappropriate for the Court to overrule Roe v. Wade in the face of substantial public pressure to do so. This argument was specious at the time it was made. It is even more specious now.

The American public has given all of the reins of power to the Republican Party, whose platform has, since 1980, consistently called for overturning Roe. v. Wade. There is as much public support for overruling Roe v. Wade in 2005 as there was for overruling Plessy v. Ferguson in 1954 or Bowers v. Hardwick in 2003. Historically the Supreme Court has responded to large scale changes in popular views about the Constitution. There is no reason why we should expect that this period will be any different. Nor should it be.

If President Bush decides that he would like to appoint Justices to the Supreme Court and the lower federal courts who will overturn Roe v. Wade, he is perfectly within his rights as President in doing so. More to the point, if the Supreme Court stocked with the Justices he appoints decides to overturn Roe in an appropriate case, this will be perfectly consistent with the judicial role, as exemplified by great cases such as Brown, West Coast Hotel, and NLRB v. Jones & Laughlin Steel Corp., which overruled outmoded precedents and responded to popular constitutional interpretations.”

What is your view of this argument and its implicit vision of legitimate constitutional change?

END OF EXAMINATION