Constitutional Law, 5220L

Section 1


Professor Carl H. Esbeck Fall Semester 2007



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, 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 2007 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 One (30 minutes): John Hanson and Jaydee Soledad are a cohabiting couple residing in Independence, Missouri. They have a two-year old daughter, Sarah Hanson. John and Jaydee want to have a second child, but this time they want to have a boy. The Stein Fertility Institute in St. Louis, Missouri, has developed a technique whereby a woman's ovum can be fertilized in a test tube with a man's sperm and the sex of the resulting zygote determined. A couple can then have only embryos of the desired sex implanted in the woman's uterus. For John and Jaydee, the resulting child will be a little boy. The Stein Institute charges only if successful, which is defined as a live birth of the desired sex. John and Jaydee are quite excited about this technique and are prepared to pay the $38,000 cost. However, just as they are about to try to attempt Jaydee's pregnancy, Congress enacts a law criminalizing "the actions of any health care professional that utilizes abortion, pharmaceuticals, or other reproductive technology for the purpose of discrimination in the sex-selection of human offspring."


As legal counsel for John and Jaydee, do you have a good claim that the congressional legislation violates the federal Constitution? Explain.



Question Two (10 minutes): Is the Dormant Commerce Clause about rights or structure, and what conceptual problems are there associated with this? Explain.



Question Three (10 minutes): Is Hate Speech directed at a person's race, color, national origin, sex, or religion protected by the First Amendment? Explain.



Question Four (40 minutes): Three employees at the medium-security state correctional center in Moberly, Missouri, were disciplined for sitting in the front row of the classroom and silently reading their Bibles during a three-hour mandatory training session titled "Gays and Lesbians in the Workplace." They had earlier asked to be excused from the session but the request was denied. A written reprimand was put into their personnel files. The employees objected to the training session as "indoctrination designed to promote a lifestyle" that they believe to be "unnatural, sinful, and contrary to the teaching of the Bible." Moreover, the three note that other employees attending the training session were not punished yet they were reading newspapers or doing unrelated office paperwork.


The three employees file suit in federal district court alleging that their federal constitutional rights have been violated. They sue Sally Smart, Director of the Missouri Department of Corrections, and seek an order expunging their personnel files, an injunction excusing them from having to attend similar training sessions, and their attorney's fees.


One month later the U.S. Attorney for the Western District of Missouri, acting on behalf of the United States of America, moves to intervene in the lawsuit on the side of Sally Smart. The basis for the intervention is 28 U.S.C. §2403. This is a federal statute amended in September of 2006 to give the United States of America standing to intervene in a lawsuit, one that involves a state or local government, for the purpose of opposing discrimination on the basis of sexual orientation. The motion is opposed by the three plaintiffs on federal constitutional grounds.


(A)   Have the federal constitutional rights of the plaintiffs been violated? Explain.


(B)   How should the court rule on the motion to intervene? Explain.





Turn in both these essay examination Questions and your answers.


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