Hello everyone. I apologize for interrupting your summer break with this note. I have submitted grades for Constitutional Law. You can download the exam question, and the A+ paper (If this is yours, please drop me a line!).
This was an extremely difficult test, by design, because I had high expectations. For the most part, you met those expectations. Many of you far exceeded them. Here is the breakdown of the grades. On the whole, the grades were quite good, and I am very proud of the class. There was only one failure, and that student did not show up for the final exam.
I would like to provide some high-level thoughts on each question.
Question 1
Question 1 situated you in 1905 with a series of constitutional questions arising from the federal territory of Puerto Rico. (By chance the Supreme Court’s decision yesterday in Puerto Rico v. Sanchez Valle provides an excellent legal history of Puerto Rico). The instructions told you that you were clerking for Justice John Marshall Harlan, and had to write a dissent to the majority opinion written by Justice Oliver Wendell Holmes.
Part I asked about the Governor imposing a literacy test for running for office, but grandfathering anyone who had held office under the old Spanish government. This was based on Giles v. Harris, but involved running for office, rather than voting. The key element I wanted you to recall was that rather than invalidate Alabama’s patently racist registration scheme, the Court was unwilling to supervise local elections. For the most part, students spotted this issue. Many of you discussed the 15th Amendment, which protects the right to vote. I don’t think this works, because the question talked about running for office, not registering to vote. But in any event, it was thoughtful, so I gave partial credit.
Part II was a hybrid of Buck v. Bell and Griswold v. Connecticut: Men who had already fathered a child were required to use government-provided condoms when they engaged in intercourse, even with their wife. However, in 1905, neither Buck nor Griswold, nor Pierce or Myers, had been decided yet. This question called on you to discuss the doctrine of substantive due process, which was in existence, to explain why the state was not justified in engaging in this sort of specious public health method. The best answers discussed why the condom law was not narrowly tailored to address problems of food shortages. Many of you raised the point discussed in Griswold–that this law cannot be enforced. How are the police ever to know if a condom was used? Much of the opinion on the exam was copied, almost verbatim, from Holmes’s dissent in Buck v. Bell. Here was my favorite part:
However, the Fifth Amendment does not enact the Kama Sutra. A constitution is not intended to embody a particular social theory, whether of promiscuity or of chastity. A reasonable man might think the ordinance a proper measure on the score of health and general welfare.
The principle that sustains compulsory vaccination is broad enough to cover compulsory contraception. Jacobson v. Massachusetts (1905) (Harlan, J.). Three generations of aboriginals are enough.
Part III was based on the Supreme Court’s 1917 decision in Buchanan v. Warley. The case was not in your book, but I mentioned it in class. (The A+ paper cited it). The facts in Buchanan were identical to those in Part III. I even quoted, verbatim, from the Kentucky segregation law that was challenged in the case. Justice Holmes actually wrote a dissent in that case, but it was never published. I incorporated elements of his unpublished dissent into the opinion. (If you couldn’t tell, I take authenticity really seriously when writing these questions). The question specifically said that James did not challenge the ordinance under the equal protection clause. That didn’t stop about 75% of you from writing about the equal protection clause. You need to read the instructions. The best answer focused on Lochner and liberty of contract. Imposing a restriction on buying and selling property is a restraint on liberty of contract–indeed the Buchanan Court invalidated the Kentucky law based on the Due Process Clause. (In case you were curious, the two characters from this question–James and Daisy–are famous individuals who share the last name of Buchanan). Several of you noted that the statute only made it illegal to “move into,” and not actually purchase the property, so there were broader freedom of association issues.
The ordinance in Part IV was a near-verbatim reproduction reproduction of the Sedition Act of 1918, which the Supreme Court upheld in Abrams. Of course in 1905, none of the First Amendment cases had come across the docket, so you could not cite them. Many of you drew references to the Alien and Sedition Act of 1798, and the importance of revolutionary pamphlets during the war for independence. Working from these first principles, the best papers discussed the importance of free speech to a democracy, and why the speech that is most jarring and offensive warrants the strongest protection. Many of you discussed modern-day precedents, and notions of strict scrutiny. This received partial credit, but was not responsive to the question asked. The instructions made clear that Congress, by statute, “extended the protections of the entire Constitution” to the territory of Puerto Rico. About half you didn’t read, or understand that instruction, because you engaged in a discussion about incorporation and Barron v. Baltimore. You need to read instructions.
Part V asked you to help Justice Harlan prepare a dissent. About 25% of you didn’t read, or understand that instruction, and thought that Justice Harlan wrote the majority opinion. It is far too easy to explain why Harlan should write that Plessy should be overturned, but there are costs. Namely, that it would require the majority to reaffirm Plessy–something the Court assiduously avoided in Giles, Cumming, and other cases from this era. Further, if the Court in 1905 had overturned Plessy, vast swaths of America would have simply ignored the decision. This would diminish the Court’s legitimacy.
Question 2
This question–which I wrote before the Indiana GOP primary–was meant to test your understanding of how the Supreme Court functions during a constitutional crisis: Eight Justices have to decide the fate of the 2016 Presidential election, where Pennsylvania’s Secretary of State refuses to certify the votes for the Canadian-born Ted Cruz.
Part I asked you whether Congress had the power to define the term “Natural Born Citizen” in Article II to include a person who is born abroad to a U.S. Citizen. The overwhelming majority of you answered that Congress could enact this law pursuant to its Article I, Section 8 power over naturalization, coupled with the Necessary and Proper Power. A few of you also wrote that Congress could rely on its Section 5 powers to provide a meaning to the NBC clause. A small number of you said Congress would have to enact a constitutional amendment to provide a meaning for the NBC clause. Personally, I think the Amendment is the only valid method to proceed, but I gave full credit for the other two answers. Several of you turned to the commerce clause, which I think is flatly wrong. Others talked about Youngstown, which was irrelevant–Congress can override a President’s veto without triggering Justice Jackson’s analysis. Far too many of you wasted words talking about bicameralism and presentment. I mentioned this during class, but if your answer is about bicameralism and presentment, that is probably not what I’m looking for. For some reason, students love writing about this–maybe because it is one of the few mechanical rules in the class?
Part II was something of a double-fake. It asked about a law that only applied to presidential candidates that received votes before November 9, 2016. Many of you wrote that this was an ex post facto law. But it’s not. There is nothing punitive about this law, and it does not criminalize any sort of conduct that transpired before that date. The better answer was that it is likely a Bill of Attainder because the law only applies to a small subset of people (namely Ted Cruz and Hillary Clinton). But after Nixon v. GSA, I doubt it would even be considered a bill of attainder.
Part III is a really tough question–Congress attempts to impose its interpretation of the NBC on the federal courts. Many of you wrote that Congress has no role in interpreting the Constitution. If you wrote this, after sitting in my class for 16 weeks, you were not paying attention. The answer is far more complicated, and requires an analysis of the framework from Boerne v. Flores. The Court has held that Congress lacks the authority to give meaning to constitutional provisions in contradiction to the Supreme Court’s prior decision. It isn’t clear here if this would run afoul of Boerne, because the Court had not yet ruled on the question. I would accept either answer.
Part IV involved a variant of Printz: Can Congress require state officials to interpret the Constitution in a certain manner. Arguably, this constitutes commandeering, as state officials are not bound by statutes, but I think the question goes deeper. State officials do take an oath to the Constitution. This feeds back into the previous question: Can Congress provide a meaning of the Constitution. A number of you wrote that a state executive branch official could be removed under Myers and Humphrey’s Executor. You should know these cases only apply to federal execute-branch officials, not state officials.
Part V was a wide open question to test how you think in an unconstrained environment. I was particularly impressed with many of your creative responses, which involved saving constructions from the Chief, the 12th Amendment, the 20th Amendment, recess appointments, militia uprisings, and many others. I gave credit for just about anything, so long as it reflected thought. If you simply wrote the lower court should rehear the case, that won’t work because the electoral college would soon meet.
On the whole, I was very proud. Well done.