Spring Term 2000 Examination Constitutional Equality

Harvard Law School

Spring Term 2000 Examination

Constitutional Equality

May, 2000

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of two essay questions. 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 strongly prefer that you type your exam. If you use blue books, write clearly, and skip every other line.

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

Explain how the concept of constitutional equality changes from the Founding to the present. Give examples drawn from the materials in the course. Explain what these models of equality recognize and do not recognize as (1) issues of equality; (2)issues of justified inequality; and (3) issues which have nothing to do with equality.

Do you agree that the current model of constitutional equality, even if imperfect, is an improvement on previous models? What moral, political, or factual criteria would you use to justify your answer? Are these criteria that could be used to construct and justify still another and better model of constitutional equality?

Question Two

Is antisubordination a workable principle for constitutional doctrines of equality? What are its strengths and weaknesses as a theory of law? Can it be usefully applied in existing doctrinal disputes? Why or why not? Give examples to support your view. Is “the antisubordination principle” a genuine principle or is it merely a location of critique for whatever existing legal doctrines happen to be in place at the time?

END OF EXAMINATION