Constitutional Law Spring 2002

Mr. Becker’s Section

Some Notes on the Final Examination

I. The Statistics and Cover Sheet

Overall, you did pretty well on the final examination, though probably not quite as well as I’d hoped from your performance in class. The overall curve, which could not have been much higher without violating the B median rule, was as follows

 

You should pick up (if you haven’t) your examination and a cover sheet promptly. (If you don’t pick it up in a week or so, I’ll have it mailed out.) The cover sheet will include the following information:

1.     Name and examination number

2.     The answers you gave to each individual multiple-choice question. I urge you to compare what’s on the cover sheet with what you wrote; it’s possible I made a mistake in copying, and transcription and arithmetic mistakes are the only basis on which a grade can be changed. If I did make a mistake, please let me know.

3.     “Part 1 score.” Your score (the number right) on the multiple choice questions. The average score was 12.7; the highest, 18; the lowest, 9.

4.     Part 2 score.” Your score on the essay portion. It was (more or less) graded on a 100-point scale. The average score was 83.5; the range was 60 to 96.

5.     “Grand total.” This requires some explanation. I wanted to count the two parts of the examination equally, but Part 2 was scored on a nominal 100-point scale, whereas Part 1 was scored on a nominal 0 to 20 scale. This created an obvious problem: how to give “equal weight” to two parts scored on radically different and arbitrary scales. After a certain amount of experimentation, I decided that the best approximation of equal weight would be to multiply the Part 1 score by two and add it to the Part 2 score. (I then subtracted 27, so the total score is again on an approximately 100 point scale, but this doesn’t change anyone’s ranking).
The average grand total was 82; the range was from 51 to 99.

6.     “Exam Grade” and “Final Grade” are self-explanatory. In a very few instances, mostly at the lower end of the scale, I bumped the examination grade up slightly because of good class performance.

7.     “Notes Part 1” and “Notes Part 2” are individual notes on your answers. There are almost none for Part 1, unless you undertook to explain one of your answers. There are some notes on most exams for Part 2, though in general they’re pretty sketchy. Feel free to come and see me if you would like additional comments.

II. The Examination

Part One

Below are the questions and correct answers (in red) to Part 1.

1. In Marbury v. Madison, the Supreme Court reached all of the following conclusions. Which of them is the weakest?

a. Section 13 of the First Judiciary Act purports to grant the Supreme Court original jurisdiction to hear Marbury’s petition for a writ of mandamus.

b. Article III of the Constitution forbids the Supreme Court from taking original jurisdiction of Marbury’s petition.

c. Given this conflict between Section 13 of the First Judiciary Act and the Constitution, the Supreme Court should apply the Constitution and not follow the First Judiciary Act.

2. Why did Raines not have standing, and Griswold have standing, to raise the rights of third parties not before the Court?

a. Because Raines was using the Constitution as a sword, and Griswold as a shield.

b. Because Raines was raising an economic right, and Griswold was raising a personal right.

c. Because the right Raines was seeking to raise did not require Raines’ cooperation for its exercise, while the right that Griswold was seeking to raise required his (or another doctor’s) cooperation.

d. Because the law in Raines didn’t need clarification, but the law in Griswold did.

3. Congress enacts statute providing money to States to reduce violent crime against women. The National Organization for the Protection of Men (NOPM) believes that it is unconstitutional for Congress to enact such a statute without providing equivalent funds to reduce violent crime against men.

a. NOPM will not have standing to raise the claim because organizations do not have standing to raise the rights of their members.

b. NOPM will not have standing to raise the claim since it presents merely a “generalized grievance” under Frothingham v. Mellon.

c. NOPM will have standing to raise the claim because the issue is important.

d. NOPM will have standing to raise the claim under Flast v. Cohen.

4. The criminal code of the State of Nutmeg prohibits, in general, forcible rape (of a man by a woman, or of a woman by a man). However, consistent with the common law practice, Nutmeg provides that it is a defense to a charge of forcible rape that the defendant was married to the complainant at the time of the offense. (A married person may be convicted of assault on a spouse, and some, perhaps most, forcible rapes also involve a criminally punishable assault.) Ralph Royster is an unmarried 27-year-old male who has been charged with rape. At trial, he claims that he never had sex with the complainant. In addition, he seeks to argue that the statute is unconstitutional because, in failing to give equivalent protection to married people, it deprives them of the equal protection of the laws.

a. Ralph will likely have standing to raise the claim.

b. Ralph will not have standing to raise the claim since he is not married.

c. Ralph will not have standing to raise the claim since it would more appropriately be raised by a married person.

d. Ralph’s claim will be dismissed as unripe because he is not alleging that he is likely to commit a rape in the future.

5. Which of the following cases, decided during the “second era” of the Court’s interstate commerce jurisprudence, are no longer good law: Carter v. Carter Coal, Hammer v. Dagenhart, Stafford v. Wallace, Shreveport Rate Cases, Swift & Co. v. United States?

a. Only Hammer v. Dagenhart.

b. Carter, Hammer, and Swift.

c. Carter and Hammer.

d. Hammer and Stafford v. Wallace.

6. Hammer v. Dagenhart is the high point of the Supreme Court’s restriction of congressional power under the Commerce Clause because

a. The Act of Congress found unconstitutional regulated child labor.

b. The Act of Congress found unconstitutional regulated goods moving across state lines.

c. The Act of Congress found unconstitutional merely imposed a tax.

7. After Lopez and Morrison,

a. Heart of Atlanta Motel is likely still good law

b. Heart of Atlanta Motel is likely no longer good law since interstate travel is not necessarily an economic enterprise.

c. Heart of Atlanta Motel is good law only insofar as the travelers in question are engaged in interstate business.

8. The power of Congress to spend money under the General Welfare clause of the Constitution is limited to spending for purposes otherwise delegated by the Constitution to Congress or another branch of the federal government.

a. This was the position of Alexander Hamilton, and is substantially the position of the Court today.

b. This was the position of Alexander Hamilton, and is not the position of the Court today.

c. This was the position of James Madison, and is substantially the position of the Court today.

d. This was the position of James Madison, and is not the position of the Court today.

9. Which of the following best states the Court’s current position about the power of Congress under Section 5 of the Fourteenth Amendment?

a. Congress can only provide remedies for what the Court has already decided is a constitutional violation.

b. Congress can only provide remedies for what the Court would, on its own, determine is a constitutional violation.

c. Congress can only provide remedies for what the Court agrees is a constitutional violation, but in close cases the judgment of Congress may make a difference.

d. Congress can to some degree determine what is a constitutional violation, and the Court will uphold this if there’s a rational basis for Congress’s determination.

e. Congress can determine the scope of the constitutional provision and the Court will follow its lead.

10. Congress can prohibit private racial discrimination under the Thirteenth, but not the Fourteenth Amendment.

a. True

b. False

11. Which of the following suits could not be maintained in federal court under the Eleventh Amendment? Assume that an Act of Congress purports to give jurisdiction in all cases, and that in no cases has the State consented to the suit. (1) A suit by a private individual against the State of Connecticut for money damages for failure to pay overtime wages as required by federal law; (2) A suit by a private individual against the Treasurer of the State of Connecticut for money damages for failure to pay overtime wages as required by federal law; (3) A suit against the State of Connecticut for money damages for failure to pay overtime wages as required by federal law, brought by the United States; (4) A suit by a private individual against the Treasurer of the State of Connecticut seeking to enjoin him from failing to pay overtime wages as required by federal law; (5) A suit by a private individual against the Town of West Hartford for money damages for failure to pay overtime wages as required by federal law.

a. Given the Eleventh Amendment, none of these suits may be maintained in federal court.

b. (3) could be maintained in federal court, but the others could not.

c. (3) and (4) could be maintained in federal court, but the others couldn’t.

d. (3), (4), and (5) could be maintained in federal court, but the others couldn’t.

e. All of these suits could be maintained in federal court.

12. The State of Nutmeg in 2002 enacts an assisted suicide statute which allows an adult individual desiring to end his or her life to obtain a prescription from a physician for drugs which, it is believed, will pleasantly and peacefully end life. After the statute is enacted a large corporation purchases an unused hospital, converts it to luxury suites (one room of each suite contains ordinary hospital equipment) and rents the suites, at considerable cost, to rich people who want to end their lives in sybaritic comfort. The converted hospital is named “Lethe.” Most of the patrons of Lethe come from out of state. Horrified by the appearance of a “suicide mart” (others call it the “roach hotel”) in the State, Nutmeg promptly enacts a law limiting the assisted suicide statute to citizens of Connecticut. Evelyn is a rich citizen of Florida who desires to end her life comfortably and promptly. She checks into Lethe and is refused the desired drugs because she isn’t a citizen of Nutmeg. Her better constitutional challenge would be under

a. The Privileges and Immunities Clause of Article IV.

b. The privileges or immunities clause of the Fourteenth Amendment.

13. Consider three positions on incorporation of the Bill of Rights. One, the Fourteenth Amendment “incorporates” the entire Bill of Rights and makes it applicable against the States. Two, the Fourteenth Amendment incorporates some but not all particular clauses of the Bill of Rights and makes those clauses applicable against the States. Three, the Fourteenth Amendment does not incorporate any of the Bill of Rights, but some things forbidden to the federal government under the specific provisions of the Bill of Rights are also forbidden to the States under the general principles of the Due Process Clause.

a. Position One is Justice Black’s; Position Two is Justice Brennan’s; Position Three is Justice Frankfurter’s. The Court’s current approach is closest to Position Two.

b. Position One is Justice Frankfurter’s; Position Two is Justice Brennan’s; Position Three is Justice Black’s. The Court’s current approach is closest to Position Two.

c. Position One is Justice Black’s; Position Two is Justice Frankfurter’s; Position Three is Justice Brennan’s. The Court’s current approach is closest to Position Two.

d. Position One is Justice Frankfurter’s; Position Two is Justice Black’s; Position Three is Justice Brennan’s. The Court’s current approach is closest to Position Two.

14. Assume a replay of Yick Wo v. Hopkins, but this time the Board of Supervisors introduces evidence that they administered to all applicants an examination on laundry safety; that all applicants who passed the examination were granted licenses, and no person who failed the examination was granted a license; that the examination was administered in English; and that none of the Chinese applicants was literate in English.

a. The statute would still be unconstitutional since failure to administer the examination in the language of the Chinese applicants is unconstitutional racial discrimination.

b. The statute would still be unconstitutional since the Board’s reasons are irrelevant; the numbers conclusively establish unconstitutional racial discrimination.

c. The statute would be constitutional if, and only if, the Board of Supervisors could show that it didn’t know that administering the examination in English would likely have a racially differential effect.

d. The statute would almost certainly be constitutional.

15. In 2001, a year after the maximum state income tax rate was raised by the Legislature to 15%, the citizens of the State of Nutmeg adopted, by referendum, a constitutional amendment forbidding income taxes above a maximum rate of 10%. Citizens for Tax Justice, an organization devoted to obtaining higher income taxes (and lower property taxes), would like to argue that the state constitutional amendment violates the Equal Protection Clause because it puts citizens who favor tax increases at a constitutional disadvantage compared to citizens who don’t. They have hired you to advise them. You tell them

a. That the Nutmeg constitutional amendment is almost surely unconstitutional under Romer v. Evans.

b. That the Nutmeg constitutional amendment is probably unconstitutional under Romer v. Evans.

c. That the Nutmeg constitutional amendment is almost certainly constitutional.

16. Which of the following cases purports to use rational basis equal protection and actually uses something more? (1) City of Cleburne v. Cleburne Living Center; (2) Railway Express v. New York; (3) Plyler v. Doe; (4) Reed v. Reed; (5) Palmore v. Sidoti.

a. (1), (3), and (4).

b. (1), (3), and (5).

c. (1), (2), and (3).

d. (3) and (5).

e. (3) and (4).

17. A State college uses race as a factor in admissions decisions; applicants of Race A have their college board scores and high school grades point averages multiplied by 1.1 for the purpose of making decisions about admission. In order for an unsuccessful applicant, of Race B, to have standing to challenge the use of race as a factor in admissions decisions, the unsuccessful applicant will have to show that he or she would have been admitted had it not been for the use of race as a factor in admissions.

a. True

b. False

18. The State of Nutmeg requires all buses and short-distance railroads in the State to reserve at least two seats in every bus (or every railroad car) for pregnant women. Harold, neither pregnant nor a woman, was fined $25 for sitting in a bus seat reserved for pregnant women. Harold argues that the statute discriminates on the basis of sex, and therefore should be subject to intermediate scrutiny.

a. He’s right.

b. He’s wrong.

19. The State of Nutmeg maintains a large and expensive public library in the state capital. Citizens of Nutmeg can use the library for free. Citizens of other States can use the library on payment of $1 per day or $100 per year. People who are not citizens of the United States cannot use the library.

a. The State of Nutmeg cannot forbid people who are not citizens of the United States from using the library.

b. The State of Nutmeg almost certainly can forbid people who are not citizens of the United States from using the library.

20. The Library of Congress is the nation’s largest library, located in the District of Columbia. Although its primary function is to serve members of Congress and other federal officials, it is a major research library traditionally open to use by all adults who desire to do research there. Because its vast holdings, including an enormous amount of information that would be useful to someone intending to engage in terrorist activity, Congress enacts a statute forbidding people who are not citizens of the United States from using the Library of Congress.

a. Congress cannot forbid people who are not citizens of the United States from using the Library of Congress.

b. Congress can forbid people who are not citizens of the United States from using the Library of Congress.

Part Two

Question One: You are law clerk to a newly-appointed Justice of the Supreme Court of the united States, Cecelia Gaposhkin. Justice Gaposhkin is dissatisfied with the current rule of law for due process cases which (except for abortion), says that if a law deprives someone of a “fundamental right,” the law is constitutional only if it is “necessary to promote a compelling state interest.” Justice Gaposhkin is intrigued by the approach of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey, in which they concluded that restrictions on abortion were unconstitutional only if they imposed an “undue burden” on the right to an abortion. Justice Gaposhkin thinks that this would be a good rule of law for all “fundamental rights” cases decided under the Due Process Clause, whether of the Fifth or Fourteenth Amendment.

Justice Gaposhkin thinks that a good case could be made for the proposition that the Court’s “fundamental rights” due process cases, although nominally using the “necessary to promote a compelling state interest” standard, actually are more easily and consistently explainable as actually using an “undue burden” standard. At this point, she tells you, this is only a speculation on her part. She would like you to reanalyze those cases (or as many as you have time for) and tell her whether they are, indeed, more easily explained by, or more consistent with, a rule of law that would say the true rule of decision is that government may not impose an “undue burden” on any “fundamental right.”

Write the requested memorandum.

A really good answer to this question required at least three things. First, the role. Your job is to do what your boss asks, which is to say whether the prior cases can be more easily explained as consistent with an “undue burden” rule. It might or might not be wise to do this, and certainly if you’ve done your job your boss might appreciate comments about whether her proposal is a good idea. But that’s secondary. Some of you spent all your time telling the Justice that she shouldn’t want an undue burden standard, and never did much with the assigned task.

Second, understanding that the “undue burden” standard is an explicitly flexible one. The present two-tier standard is at least nominally rigid: if something is a “compelling state interest,” a narrowly drawn statute that furthers it will override any and all rights. (For instance, in the statutory rape case the Court noted with apparent approval that the parties agreed the prevention of unwed teenage pregnancies was a compelling state interest. If so, under the compelling state interest standard a state could compel unmarried pregnant teenagers to have an abortion. The statutory rape case is at least arguably right; I can see no reasonble basis to argue that compulsory abortions of all unmarried pregnant teenagers should be lawful.) Perhaps over time an “undue burden” standard would rigidify. At the moment, however, its language appears flexible and it’s been used in only a single case. Thus there’s considerable flexibility in the proposed standard.

Finally, of course, you have to do a good job with the cases — which means, in particular, not only amassing cases that support the position that you are arguing, but also collecting the cases that most strongly contradict it and dealing with them. A lot of you did well in collecting helpful cases but struck out (without even swinging) on the tough ones.

Of the cases, as most of you realized the marriage cases (particularly the dictum in the several opinions in Zablocki) are the most helpful. The voting rights cases, particularly Harper v. Virginia Board of Elections, are the most troublesome. Probably the best way to deal with this (how could a $1 fee for people who can pay it be an ‘undue burden’) would be to argue that voting should be considered something different and special, and thus distinguish those cases rather than try to harmonize them.

Incidentally, does anyone know who the real Cecelia Gaposhkin (really, Cecelia Payne-Gaposhkin) was?

Question Two. The legislature of the State of Nutmeg is concerned with the increasingly popular practice of artificial insemination, and in particular is concerned with the fact that many children born as a result of artificial insemination may not know who their father is. Accordingly, it is considering the enactment of a statute that would forbid the practice of artificial insemination (and also similar reproductive techniques, such as in vitro fertilization) except for married women, with the husband’s consent. The husband’s consent would also require the husband’s agreement to treat the child as his own in all ways, to assume full liability for support of the child as if it were his natural child, and so forth.

You are legislative counsel to the Nutmeg Senate. Several senators have asked you for a memorandum discussing possible constitutional problems with the proposed legislation. Specifically, they want to know whether the statute, if adopted, would be found unconstitutional by the Supreme Court of the United States. The legislators would like you to deal, explicitly, with the following arguments, all of which have been raised by some opponents of the bill. (Some of the arguments may be insubstantial or even frivolous; the list includes all that have been raised.) In addition, if there are other substantial constitutional arguments that could be made against the statute, you should discuss them. (I am not, here, deliberately concealing a major issue, but I may have missed one. Don’t feel embarrassed if you come up with nothing else.)

Comment: I don’t much like this statute, which strikes me as meddlesome, cold-hearted, and unlikely to do much good. It’s also poorly drafted and sometimes ambiguous (just what does the husband consent to?). Nevertheless, I think it’s probably constitutional under existing law, except perhaps in some extreme cases — imagine, for instance, a married woman whose spouse had completed all the arrangements except for the paperwork on the consent form when he suddenly died.

The key question, I think, is whether an unmarried woman has a fundamental right to become pregnant without marrying. If so, then there are serious constitutional problems with the statute. But the Court has certainly never held that there is such a right. Michael M. v. Superior Court accepted the proposition that the state had a legitimate interest in preventing unwed teenagers from becoming pregnant. Several cases appear to accept the proposition that States can outlaw fornication (Zablocki; and see Eisenstadt, which does not quarrel with the proposition but merely rejects the argument that Massachusetts might have intended pregnancy as a punishment for fornication). And of course Skinner by no means holds that everyone has a right to have children; it goes no farther than to conclude that sterilization in the circumstances was a violation of the equal protection clause even though the statute would have passed an ordinary rational basis test.

The biggest problem with many of the answers is that they focused on generalities and didn’t look closely at the details. Nobody demonstrated constitutional illiteracy. But some of you failed to demonstrate the ability to take a hard look at the questions you discussed.

·      The statute discriminates against women because it makes it harder for them to become pregnant.

A red herring. This isn’t a sex discrimination issue, see Geduldig; and it takes two to tango.

·      The statute discriminates against unmarried heterosexual couples because it forbids them to use artificial insemination in order for the woman to become pregnant.

Pretty much a red herring. “Unmarried heterosexual couples” aren’t anything close to a constitutionally suspect classification. The real point here is really with respect to the next issue.

·      The statute unconstitutionally restricts the fundamental right of a woman to choose whether to bear a child.

As to married women, it’s certainly plausible notwithstanding Buck v. Bell to conclude that if asked (it never has been; States haven’t been in the business of writing statutes forbidding married couples from having children) the Court would conclude that one of the incidents of that marriage to which there is a fundamental right is the right to have children within the marriage. See Zablocki. But what is the restriction, and is it sufficient to trigger a “necessary to promote a compelling state interest” standard?

Three attacks can be made on the restriction. First, of course, it prevents a married woman who wants to get pregnant by a third party, without her husband’s knowledge, from using artificial insemination to do it. But is this really what the “right to procreate” in marriage protects? State laws forbidding adultery still exist, and have never been challenged; and for generations adultery was the only way a married woman could get pregnant by anyone other than her spouse. It’s quite unlikely the Court would find such a claimed right “fundamental.”

Second, it prevents a married woman from getting pregnant by a third party without her husband’s consent. Again, the basic question is whether the Court would recognize such a right. It’s certainly not part of what we’ve thought traditionally of marriage, which we generally conceive of as a partnership not merely a convenient relation between individuals living their own lives.

Third, some husbands may be perfectly willing that their wives have someone else’s baby, but bridle at the specific consent required. The first question here is what that “consent” means. If it means nothing more than an agreement to support the child as the law requires, compare Michael H., presumably the state could require this without specific consent. If it means significantly more than this — for instance, if it would authorize state judicial inquiry into the details of how the father is treating the child relative to other children, then there is arguably a problem under Troxel.

·      The statute unconstitutionally restricts the fundamental right of potential sperm donors to become fathers.

Another silly one, I think, whether one notes that potential sperm donors aren’t prevented from procreating, merely denied one method; or whether one notes that procreation outside of marrigae is not likely to be held a “fundamental” right. See above.

·      The statute unconstitutionally restricts the fundamental right of fertility doctors to practice their profession.

It certainly restricts their rights, but no more than the Williamson statute restricted the rights of opticians. A Court prepared to uphold the statute against the claims of childless couples is not likely to find it unconstitutional because of the restriction on the practice of medicine, which in general is highly regulated.

·      The statute unconstitutionally restricts the fundamental right of unmarried women to one available medical treatment for infertility.

As phrased, this looks like a strong argument; indeed, as we noted one of the stronger arguments for Roe was that the statutes in question prohibited an available and not particularly dangerous medical treatment for what could be an extremely uncomfortable and even fatal condition. Historically we haven’t in general prohibited people from getting medical treatments that worked, and the Court has several times at least accepted the proposition that there are limits on the extent to which government can intervene to prevent doctors from providing their patients with treatment. Glucksberg; compare Cruzan.

If what was involved here was a “treatment” for “infertility” that rendered the peson more fertile in general, I think the argument for fundamental right status would be a strong one. (Consider a statue forbidding doctors to seek to undo previous sterilizations.) However, this isn’t a general treatment for infertility; it’s a specific attempt to get pregnant, whether the previous failure resulted from infertility on the woman’s part, infertility on the man’s part, or just plain bad luck. As such, the question is really whether the person seeking the treatment has a fundamental right to become pregnant, discussed above.