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哈佛法学院宪法考试题目  

2011-03-13 14:49:00|  分类: 默认分类 |  标签: |举报 |字号 订阅

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这是上学期我上的Minow院长的宪法课考试题目,有兴趣的朋友可以看看。考试方式是TAKE HOME,时间是早上8:30到下午4:30.

 

Law School of Harvard University / 2010-2011
© 2010-2011 by the President and Fellows of Harvard College.
Page 1 of 6
Constitutional Law: Structure and Fourteenth Amendment
Section A1
Fall 2010
Dean Martha Minow
Available for download: Monday, December 13-20, 2010, 8:30am
Due: On the same day, 4:30 p.m.

INSTRUCTIONS
The exam mode is TAKEHOME.

This is a take-home, open-book examination. Please do NOT conduct outside research; if
you do, you will not be using your time well. You may consult materials assigned for the
course; your notes; and study materials. You may not, however, discuss this examination
with anyone until all answers have been turned in and the examination period has ended.
The examination consists of two questions. Question 1 will count for 50% of your grade.

Question 2 will count for 50% of your grade. Your combined answers to the two questions should not exceed 3,500 words in total for both exam questions, allocated as you wish. Please do not feel obliged to use all 3,500 words. Rambling or excessively long answers will not help; nor will simply reproducing descriptions of previous Court decisions.

Please type and double-space your answer. Please be sure to include your EXAM ID NUMBER and DO NOT include your name on your answer.

I suggest that you read the questions several times before writing and indeed, take time to
outline your answers before writing. Do note all parts of the questions.

Thanks in advance for your thoughtful responses and for your terrific work in the course.
Law School of Harvard University / 2010-2011
© 2010-2011 by the President and Fellows of Harvard College.

Page 2 of 6

Question I

The United States House of Representatives recently passed the Native Hawaiian Government Reorganization Bill which would give native Hawaiians the power to establish a new “tribal” government modeled on that of Indian tribes and establishes a process through which the federal government, through the Department of the Interior, would recognize a Native Hawaiian governing body as detailed in sections summarized below.1 You have been asked by your employer to develop potential constitutional challenges to the bill, should it become enacted into law.

Section 1. Congress, acting under the Constitution, proposes the legislation on behalf of the indigenous, native peoples of the United States, including Native Hawaiians, under authority including, but are not limited to, the Property, Treaty, and Supremacy Clauses, War Powers, and the Fourteenth Amendment, and Congress hereby relies on those powers in enacting this legislation to rationally promote the welfare of the native peoples of the United States; and

Section 2. Congress has delegated broad authority to the State of Hawaii to administer some of the United States’ responsibilities as they relate to the Native Hawaiian people and their lands; with this Bill, Congress creates a process for establishing a Native Hawaiian governing entity as a federally-recognized partner in creating a government-togovernment relationship with the United States, consistent with U.S. policy towards its indigenous peoples. This structured process allows for all Hawaii residents to come together to begin to resolve many of the issues that remain from the overthrow of the Kingdom of Hawaii. In 1893, the Kingdom of Hawaii led by Queen Liliuokalani was overthrown with the assistance of agents of the U.S. and U.S. military force. The overthrow resulted in generations of Native Hawaiians being disenfranchised from their government, culture, land, and way of life. This legislation will allow the people of Hawaii to address issues left unresolved since that time.
With the Apology Resolution, the United States formally apologized to the Native Hawaiians for its participation in the overthrow and formally committed itself to a process of reconciliation. The Native Hawaiian Government Reorganization Act provides the opportunity to take the next step in this process.

Section 3 defines “Native Hawaiian” as
(A) An individual who is one of the indigenous, native people of Hawaii and who is a direct lineal descendant of the aboriginal, indigenous, native people who(i.) resided in the islands that now comprise the State of Hawaii on or before January 1, 1893; and 1 Please refer only to the version of the bill offered here, not anything pending or proposed that may resemble it.

(ii.) occupied and exercised sovereignty in the Hawaiian archipelago, including in the area that now constitutes the State of Hawaii; or

(B) an individual who is one of the indigenous, native people of Hawaii and who was eligible in 1921 for the programs authorized by the Hawaiian Homes Commission Act or a direct lineal descendant of that individual.

(C) To be a “Native Hawaiian” the individual must maintain a significant cultural, social, or civic connection to the Native Hawaiian community, as evidenced by satisfying 2 or more of the following criteria:

(1) Is, or is the child or grandchild of, an individual who has been or was a student for at least 1 school year at a school or program taught through the medium of the Hawaiian language under section 302H-6, Hawaii Revised Statutes, or at a school founded and operated primarily or exclusively for the benefit of Native Hawaiians, or

(2) Resides in the State of Hawaii or

(3) Resides outside the State of Hawaii and currently serves or served as (or has a biological parent or heterosexual spouse who currently serves or served as) a member of the Armed Forces or as an employee of the Federal Government.

(D) Under (3A), (3B), or 3 (C) no blood quantum is required.

(E) All Hawaiians and non-Hawaiians will continue to enjoy the rights and protections of U.S. citizenship and State of Hawaii residency. Hawaiians who choose not to become members of the Native Hawaiian governing entity and non-Hawaiians will not be affected. The Native Hawaiian governing entity will only have authority over its members.

Section 4 establishes a commission of 9 members to certify which adults meet the
definition of “Native Hawaiians” established in Section C, and to prepare and maintain a
roll of adult “Native Hawaiians” by that definition.

Section 5 provides for the recognition by the federal Department of the Interior of the
Hawaiian People, to be composed of Native Hawaiians, defined in section C and through
the process identified in section D.

Section 6 The United States and the State of Hawaii shall enter into negotiations with the
Native Hawaiian governing entity designed to lead to an agreement or agreements
addressing such matters as –

(A) The transfer of State of Hawaii lands and surplus Federal lands, natural
resources, and other assets, and the protection of existing rights related to such
lands or resources;

(B) The exercise of governmental authority over any transferred lands, natural
resources, and other assets, including land use;

(C) The exercise of civil and criminal jurisdiction;

(D)The exercise of the authority to tax and other powers and authorities that are
recognized by the United States as powers and authorities typically exercised by
governments representing indigenous, native people of the United States;

(E) any residual responsibilities of the United States and the State of Hawaii;

(F) the treatment of the category “Native Hawaiian” for purposes of admission to or
enrollment in any school or educational facility or public employment in Hawaii
and

(G)grievances regarding assertions of historical wrongs committed against Native
Hawaiians by the United States or by the State of Hawaii. This process
substitutes for any previous waivers of state sovereignty immunity.

Section 7 provides that Native Hawaiians may not conduct gaming activities and hence
prohibits Hawaiians from establishing casinos and from participation in programs and
services enjoyed by Indians.

Section 8 recognizes that Native Hawaiians have rights as native people to selfdetermination,
self-governance, and economic self-sufficiency—

(A) through the provision of governmental services to Native Hawaiians, including the
provision of health care, educational programs, employment and training programs, and
native language immersion programs

(B) by continuing their efforts to enhance Native Hawaiian self-determination and local
control.

Section 9. This Section provides for the exercise of inherent and other appropriate
governmental authorities by the Native Hawaiian governing entity; it prevents the sale,
distribution, lease, or encumbrance of lands, interests in lands, or other assets of the
Native Hawaiian governing entity without the consent of the Native Hawaiian governing
entity; and it provides for the protection of the civil rights of the citizens of the Native
Hawaiian governing entity and all persons affected by the exercise of governmental
powers and authorities by the Native Hawaiian governing entity.

Please draft a memo identifying any potential defects with this bill under the U.S.
Constitution and predicting how such defects, if presented in a judicial challenge to a
formal enactment of the bill, are likely to be resolved by the current Supreme Court of the
United States. Where possible, offer references to precedents whether direct, by analogy,
or by way of distinction. Finally, end your memo with one sentence summarizing what
you deem to be the most serious defect in the bill.

Question II

Take ONE of the problems/cases used for moot arguments in the course (consult the list
below) to test or illustrate your analysis in responding to the following question:
“One thing we do, then, when we accept a legal system, is in effect to say to our fellow
citizens that we are not going to insist on having everything our way. More precisely, we
are saying that we recognize that there is intense disagreement about certain moral
matters; that if society is to function, some of those matters must be authoritatively
resolved, and everyone must live with the resolution; and that we understand that the
institutions we establish to resolve those disagreements might sometimes reach the result
we do not favor.” Professor David Strauss, What is Constitutional Theory (1999).
Offer an argument to respond to the question posed in the problem you select and in so
doing, explain how the argument respects and reinforces institutions we establish to
resolve disagreements and why, on this basis, those who may disagree with the result you
recommend should nonetheless respect the result in that light. Be sure to be explicit
about the modes of interpretation you use and you offer to elicit respect from those who
disagree with your recommended result.

1. Does the new health care law exceed Congress’s authority under the Commerce
Clause and Spending Clause?
2. Executive Privilege: Should the Congress enact an Executive Privilege Statute?
3. Should the Congress hold hearings about whether the President has exceeded his
authority in his use of signing statements?
4. Walgreen Co. v. City and County of San Francisco: does the city’s ban of the sale
of tobacco products in certain retail establishments violate the equal protection
clause?
5. Does the assignment of public school students to single-sex instruction violate the
equal protection clause?
6. Do recently enacted Nebraska and Oklahoma laws restricting abortion violate
individual women’s due process rights?
7. Does section 3 of the Defense of Marriage Act violate the equal protection or due
process clause?
8. Does the government violate a federal contract employee’s constitutional right to
informational privacy by (1) asking in the course of a background investigation
whether the employee has received counseling or treatment for illegal drug use
that has occurred within the past year and/or (2) asking the employee’s designated
references for any adverse information that may have a bearing on the employee’s
suitability for employment at a federal facility?
9. Does the Terrorist Expatriation Act raise constitutional problems, and if so, under
what clauses, with what seriousness of risk of being struck down as
unconstitutional?
10. Does Arizona’s S.B. 1070 violate the United States Constitution?
END OF EXAM

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