What Some Constitutional Law Students are Thinking

Grading constitutional law examinations provides an interesting window into what students are thinking and not thinking. As is the case with most professors, I find grading rather tedious, save for the occasional amusing mental typo. This year’s winner, on an examination that was quite good, was "the theory of the unitary executive gives the president the power to lead a rebellion against the United States." I hope no one tells Dick Cheney. Still, several points might be of broader interest and do not seem to be a violation of confidentiality.

The two questions that provoked the most dispute were over a law that required doctors to charge $200 for an abortion and a proposal to make the main room at a university an exact replica of the Sistine Chapel. Students got full credit as long as they used the "undue burden" standard for the first and for the second wrote something like "must have a predominantly secular purpose as seen by an objective observer." Still, the disagreement was rather vigorous. To some students undue burden and religious purpose were obvious. To others, the contrary result was as obvious.


I also asked the students to write a short essay on what case, presently good constitutional law in the United States, they would most like to see overruled. The number 2 choice, not surprisingly, was Kelo, the case in which the Supreme Court permitted New London to use the power of eminent domain for economic development. The number 1 choice, surprisingly, was Van Orden v. Perry, a case about whether the Ten Commandments could be placed in a public park outside the state capital in Texas. Not surprisingly, a number of students wrote about abortion, either giving reasons for overruling Roe v. Wade or Carhart v. Gonzales. Hardly anyone wrote on race and only one student on affirmative action.

Thinking about the choices, I suspect many students went for safety rather than political commitments. In public debate, we rarely use terms of opprobrium for persons who have strong feelings about the meaning of "public use" in the Fifth Amendment and classroom debates over constitutional "interior decorating" seem both remarkably civil and unrestrained. By comparison, generating any classroom discussion about race, one way or another has gotten increasingly difficult. No one wants to be seen as either a radical or a bigot. Perhaps, if my examinations are any indication, the real challenge on Martin Luther King Day is to find ways to teach students with different beliefs on race policy how to talk to each other