|
Back to
Syllabi Online
YALE LAW SCHOOL
Fall Term 1998 Examination
Constitutional Law
January, 1999
(Self-Scheduled-- Twenty Four Hours)
Professor Balkin
Instructions
1. This examination consists of three essay questions.
Each has equal weight in determining your grade. Your answers
to the three 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, with one exception: You may not use
Lexis, Westlaw, or other electronic databases.
7. Good luck.
Question One
(One Third)
In 1996, the United States Congress passed the Family Values Act of
1996, which contained the following provisions regarding the
visitation rights of grandparents.
Section 503 Grandparents' visitation rights.
(1) Congressional Findings of Fact. The Congress has
determined that:
(a) Grandparents have an important role to play in the
creation and maintenance of loving, stable, families. Their long
experience in child raising and their connections to both parent and
child provide an important link of continuity between the past and
the present. Moreover, in many parts of the country, and in the many
ethnic and religious traditions represented in this country,
grandparents are an integral part of extended families that are
central to effective child rearing.
(b) Loving and stable families conduce to a happy and mentally
healthy populace and a strong, vibrant economy.
(c) Increasing numbers of grandparents have been unreasonably
denied the rights to visit their minor grandchildren, whether or not
this would be in the best interests of the children.
(d) These denials of visitation rights have exacerbated
domestic discord both within and without the nuclear family
relationship, and have led to bitter struggles that increase
emotional harm to children.
(e) These denials constitute a national problem, because the
breakdown of healthy family relationships harms the mental health of
the nation and threatens the continuance of a vibrant national economy.
(f) Economic conditions have led members of many families to
live in separate parts of the country. As a result, increasing
numbers of grandparents live in geographic isolation from their
grandchildren and must travel in interstate commerce to visit them.
Unreasonable denials of visitation rights have a substantial effect
on interstate commerce.
(g) State governments have failed to create sufficient
protections to guarantee grandparents reasonable rights of
visitation. As a result, the Congress has the power under Section
Five of the Fourteenth Amendment to protect the familial rights of grandparents.
(2) Creation of rights of visitation. Notwithstanding any
state or municipal law to the contrary, state courts with relevant
jurisdiction over visitation rights shall, upon petition filed by a
grandparent of a minor child, award reasonable rights of visitation
to the grandparent with respect to the child when it is in the best
interest of the minor child if:
(a) One or both parents of the child are deceased;
(b) The marriage of the parents of the child has been dissolved;
(c) A parent of the child has deserted the child;
(d) The minor child was born out of wedlock and not later
legitimated in accordance with applicable state law; or
(e) The minor child is living with both natural parents who
are still married to each other, and, whether or not there is a
broken relationship between either or both parents of the minor child
and the grandparents, either or both parents have used their parental
authority to prohibit a relationship between the minor child and the grandparents.
Philip Von Trapp and Luisa Smith Von Trapp were married in 1992. In
1993, their daughter Kelly was born. Luisa Von Trapp, the biological
mother, died of cancer in December 1995. In July 1996, Philip
remarried. His new wife, Cheryl Von Trapp, legally adopted the child
in October 1996.
In December 1996, Gerald and Joyce Smith, Luisa's parents and Kelly's
biological maternal grandparents, filed a petition for unsupervised
visitation with the child in the Domestic Court of the State of
Confusion, invoking their rights under Section 503, and alleging that
Philip and Cheryl had refused reasonable visitation with the child
and that visitation was in the child's best interests. During all
relevant times all parties were residents of the State of Confusion.
The Von Trapps argued that they had a fundamental privacy right to
determine with whom the child associated and that they had strong
personal objections to visitation by the grandparents.
At a non-jury trial in the Domestic Court, the grandparent Smiths
testified that they had played an active role in the first two years
of Kelly's life, but that soon after Luisa, the biological mother,
died, they were denied all unsupervised visitation with their
grandchild and limited to three supervised visits a year, at Easter,
Thanksgiving and Christmas. The Smiths claimed that Philip's new
wife, Cheryl Von Trapp, insisted that visits be strictly limited and
that either Philip, Cheryl, or a trusted third party be present
during any such visit.
The Smiths explained that the limitations on visitation were
completely unacceptable. They argued that it was painful to them to
visit the home of their deceased daughter where their former
son-in-law now lived with his new wife, and they were offended that
the two would question their right to be alone with their
granddaughter Kelly.
The Von Trapps countered that, as the child's parents, they had a
constitutional right to withhold or condition visitation. Cheryl
testified that she and Philip ultimately decided to limit visitation
and require supervision because of their concerns about the
grandparents' demonstrated hostility toward them and the
grandparents' lack of respect for their parental judgment.
The trial court ruled in favor of the grandparents and ordered
unsupervised visitation with the child. In so ruling, the trial court
found that the Von Trapps "are loving, nurturing, and fit
parents for the minor child," but that their "substantive
reasons . . . for terminating all visitation or at the maximum
permitting only supervised restricted visitation do not rise to the
level of severity that can be regarded with credibility by this
Court." The trial court determined that it was in the best
interests of the child to have a relationship with her maternal
grandparents. The court summarily rejected a constitutional challenge
to Section 503. The Confusion State Supreme Court affirmed the
judgment of the trial court.
The Supreme Court of the United States has granted certiorari limited
to the question whether Section 503 is constitutional. Discuss the
constitutional issues raised by the case.
Question Two
(One Third)
(a) Is Bolling v. Sharpe, 347 U.S. 497 (1954),
correctly decided? What, if any, theory of constitutional
interpretation justifies courts reading an equality principle
identical to the Fourteenth Amendment's Equal Protection Clause into
the Fifth Amendment's Due Process Clause? Does this ability to add
things that are not contained in the constitutional text have any
logical stopping point? How does one know when this kind of
interpretative strategy is permissible?
(b) Is Bolling consistent with the argument that the
House and Senate have no constitutional power to censure the
President of the United States because the Constitution does not
expressly grant them the power to do so although it does give the
power of impeachment to the House and the power of removal to the Senate?
(c) If courts can add texts or principles to the Constitution,
are they also permitted to delete texts or principles from the
Constitution? What examples of constitutional redaction come to mind?
What theory of constitutional interpretation, if any, justifies them?
Question Three
(One Third)
Many theorists argue that judicial review is actually a democratic
institution because constitutional interpretation generally responds
to social movements and Justices do not get appointed unless their
views fall within the mainstream of dominant political opinion at the
time of their appointment. However, these are external explanations
of judicial behavior and constitutional change. They do not tell
judges what to do in order to behave consistently with democratic
principles. They simply note that, in the long run, judges respond to
larger political and social forces.
If one believed this external analysis of constitutional change, what
advice should we give judges about their appropriate role in
interpreting the Constitution? Should judges attempt to discern what
political and social changes are taking place and deliberately
further them? On the other hand, should they attempt to rein in
political and social changes contrary to the political forces that
originally led to their appointment? Should they attempt to further
social change with constitutional rulings? Or should they attempt to
resist change-- like the Justices in the 1930's-- as long as
possible, until it becomes completely clear that there has been a
fundamental alteration in political life? If the external analysis is
correct, does it matter which of these courses judges take? Or does
the external analysis rest on the paradoxical notion that judges must
believe (however falsely) that they are somehow isolated from
political forces and that they do not respond to them?
END OF EXAMINATION
Back to
Syllabi Online |