Examination number _________________





Constitutional Law, 5220L

Section 1


Professor Carl H. Esbeck Fall Semester 2008



Directions to Part I B Essay

(1 hour and 30 minutes)


Place your examination number in the upper right-hand corner of this examination. When finished, return either your computer printout or bluebook and these examination questions.


Arrange your answers in sequential order. That is, put Question 1 first, then Question 2, then Question 3, and etc. If you want to skip over a Question and come back to it later, leave a blank space or blank page and begin the next Question.


You may use your laptop to complete this Part I.


If you do not use your laptop, write your answer in the bluebook provided.  Use a pen with blue or black ink. Write on only one side of each page.  Do not write in the left-hand margin. Do not tear pages out of the bluebook. 


You may take with you into the examination room your casebook (including photocopied handouts), the 2008 Supplement to the casebook, your own classroom notes (not borrowed notes), an outline or summary which is entirely your own work product, and a copy of the U.S. Constitution. It is an Honor Code violation to have in your possession any other materials during the examination.


* * * Part I Begins on the Next Page * * *









PART I -- Essay (1 hour and 30 minutes)


Question 1 (10 minutes): James Madison believed that constitutional structure - rather than constitutional rights - was the better way to safeguard individual liberties. Briefly explain his thinking in this regard.


Question 2 (10 minutes): Fetal viability is the point at which a state first has a compelling interest in fetal life (subject to the health of the woman). Was the initial choice of viability adequately justified by the U.S. Supreme Court? Explain. How does the Court presently justify its drawing the line at viability?



Question 3 (10 minutes): Assume Idaho still recognizes the common law tort of alienation of affections. Among other things, the tort allows a married person to sue for damages an individual who committed adultery with his/her spouse. Is an act of adult consensual sexual intercourse protected by the U.S. Constitution such that this tort is unconstitutional?



Question 4 (5 minutes): To what extent, if any, is virtual child pornography disfavored speech? Explain.



Question 5 (15 minutes): Assume Alaska has a fair housing law that prohibits landlords from discriminating on the basis of race, national origin, sex, marital status, or religion. A retired elderly couple owns a duplex; they live in one side and rent the other side. There is a vacancy. However, for religious reasons they decline to rent to two cohabiting heterosexuals saying to them, "Come back when you are married." The would-be renters file suit under the Alaska law requesting damages and injunctive relief. The elderly couple raise as defenses the free speech and free exercise clauses. How should a court rule on these defenses and why?



Question 6 (10 minutes): District of Columbia v. Heller (2008) held that there is an individual right of sufficient scope to protect the possession of a ready-to-fire handgun in one's home for purposes of self-defense.  What is the U.S. Supreme Court's standard of review for protecting Second Amendment rights?  Explain.



Question 7 (15 minutes): May Congress rely on the Commerce Clause to regulate rowdiness, as well as excessive drinking, at tailgate parties held before college football games? What additional information, if any, would you require to more fully reply? Explain.



Question 8 (15 minutes): Assume Congress adopts a statute providing matching funds to states to operate job-site child-care centers for pre-school children of state employees. The centers must meet specified federal health and safety standards, and centers are subject to suit for damages in federal court should a child be injured due to negligence. Is this statute constitutional? Explain.



*** END OF PART I ***


Turn in both these examination Questions and your answers.


After a 10 minute break, all students will begin Part II together.