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1290 - ExamQISampleAnswer - This answer was one of the best...

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This answer was one of the best given to Q. I on the 2008 Con Law I exam. It received 25 out of 30 points (my comments explaining the score follow the answer itself). I have added a couple of footnotes to the text; these are comments that I made apart from my comment sheet, on the text of the student’s exam. Dear Mr. and Mrs. Huckabee, This letter is in response to your request for information regarding your potential constitutional challenge as a result of the Nirvana State Legislature’s passage of POMA which resulted in a denial of your ability to enter into a surrogacy contract with Sarah. 1 I have reviewed the information you gave me and the pertinent law, and I believe that you do have a valid constitutional claim on this issue. The best chance of success can be had by bringing a challenge as a couple, though Sarah is unlikely to prevail on her own. The violation you allege is one of your Fifth Amendment right to due process as it applies to the states via the Fourteenth Amendment. There are four core questions that will need to be addressed in such a claim: 1) the fundamentality of the right that is being asserted, 2) the infringement of that right by the government, 3) any sufficient justification for that infringement, and 4) the means of the infringement being sufficiently related to the justifications given. The key to establishing the assertion of a fundamental right in your case will be the framing of that right. We do not want the right framed as broadly as a right to contract because the modern Court has been able to find that the right to contract is not absolute and can be overcome by more important rights. We also do not want to frame the right as narrowly as a right to hire a third party to bear your children because that will easily be declared non-fundamental. Justice Scalia will present a problem in this regard as he is inclined, as he stated in footnote 6 of Michael H. v. Gerald D. , to construe rights as narrowly as can be done within relevant historical traditions. Scalia is, however, the only current member of the Court who stood behind that portion of his opinion, and Justice Kennedy, who is often an important swing vote, explicitly excluded that reasoning from his decision to join in that opinion. A fundamental right that you might assert is one to create a traditional family unit. There is a significant historical tradition supporting the existence of a traditional family unit of a mother, a father, and a child. There is even a tradition of using modern science, such as in vitro fertilization, to assist in the construction of that traditional family unit using as much of the parents’ genetic material as is medically possible. The government will certainly claim that adoption still allows you to form a family unit, but you must assert that a complete lack of either of your genetic material in the child simply does not create the same bonded family unit. You should assert this right as fundamental.
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  • Spring '10
  • Tim
  • Law, First Amendment to the United States Constitution, Fourteenth Amendment to the United States Constitution, Fifth Amendment to the United States Constitution, family unit

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