Examination number _________________





Constitutional Law, 5220L

Section 1


Professor Carl H. Esbeck Fall Semester 2009



Directions to Part I B Essay

(1 hour and 20 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 2009 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 20 minutes)


Question 1 (5 minutes): If you were to extend to Justice Hugo Black a compliment for his theory of judicial review, what would you say was the most laudable objective he was trying to accomplish with his theory?


Question 2 (10 minutes): The Columbia Tribune newspaper does a story on MU budget cuts and how they are affecting University operations. A nurse at the University of Missouri Hospital & Clinics gives a statement to the paper's reporter that "understaffing of nurses is endangering patient health." When the story with the quote appears in the newspaper, the nurse is privately reprimanded by the Hospital's Chief of Staff and a note to that effect is put in her confidential personnel file. Is this permitted by the Constitution? Explain.


Question 3 (15 minutes): California recently enacted legislation concerning the severely injured and terminally ill. It pertains to patients who have one year or less to live. It defines "palliative sedation" of such a patient as the use of sedative medications (pain killers) to relieve suffering by making the patient unaware and unconscious, while artificial food and hydration (which heretofore were being administered intravenously) is withheld leading to the death of the patient." If requested, a physician shall administer palliative sedation to such a patient. The request is to come either from a competent adult patient, or the patient's legal guardian. If the physician refuses, the physician will lose his/her license to practice medicine. Dr. Sally Paulsen, who has received such a patient request, refuses to render palliative sedation and quietly informs her Chief of Staff at the hospital explaining that she cannot in good conscience act in accord with this law. The Chief of Staff asks if it's a "religious thing," but Dr. Paulsen said, "No, it is just that I don't kill people." Does the 14th Amendment protect Dr. Paulsen from the loss of her license? Explain.


Question 4 (10 minutes): We often ask, "What is liberty for?" because liberty is not an end in itself but a means to an end. Why do we protect commercial speech? Does rationale make sense? Explain.


Question 5 (15 minutes): Massachusetts enacts a human rights law prohibiting oral or written defamation of a religion. Violators are subject to a class #4 misdemeanor, which upon conviction subjects the defendant to a fine of up to $1,000. The legislation recites its purpose as "enhancing public tolerance and dignity for all faiths or those of no faith, to seek to cultivate greater co-existence in our religiously plural society, to promote interfaith understanding including that of secularism, to reduce religious stereotyping and other discrimination, and to prevent sectarian violence." Two days after the shootings at Fort Hood, Texas, an underground newspaper distributed on the Harvard University campus publishes a wordless cartoon that pictures Major Nidal Malik Hasan, the Army psychiatrist charged with the shootings, as a Shiite imam with a head covering shaped as a bomb. The publishers are charged with a class #4 misdemeanor. Is this permitted by the Constitution? Explain.


Question 6 (5 minutes): There is a worldwide problem of trafficking in women and children for purposes of the sex trade, including trafficking in immigrants smuggled into the United States, its possessions and territories. If you were to use the U.S. Constitution alone (not legislation) to address the domestic problem of sex trafficking, would you go first to the 13th Amendment, the Citizenship Clause of the 14th Amendment, the Equal Protection Clause of the 14th Amendment, the Commerce Clause, or the right to travel? Explain.


Question 7 (10 minutes): Congress enacts a comprehensive law regulating all garage sales throughout the U.S. It limits homeowners and home renters to no more than one garage sale per month and a maximum of four per calendar year. Yard signs are permitted, but no advertising in newspapers, radio, or online websites is permitted. Congressional findings show that local retail merchants are being hurt by competition from semi-professional garage-sale operators. These garage-sale operators collect no sales taxes, whereas merchants do collect sales taxes. Accordingly, state, municipal, and county entities want the legislation because of the loss of tax revenue. Is this legislation constitutional? Explain.


Question 8 (10 minutes): Congress enacts legislation providing that if a student having a federal guaranteed student loan rapes another college or university student from the same campus, that the student/victim may sue the student/assailant in federal district court for damages. The student/victim may also sue the college or university for damages if the rape took place on campus. Is this law 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.