... or, these days, fire up your word processor.
1. (60 min/30%) Consider the following passage:
Such phrases [as "Middle Ages"], obviously, are not self-contained; they are in fact incomprehensible unless we know some other facts. They designate something at first sight very vague, and need to be anchored in time (and, for that matter[,] in place) before we know what they mean. They refer to an unspecified number of centuries distinguished only by coming between others, and we are entitled to ask "between what? after what? in the middle of what?" Most people who read this book are likely to know the answers to such questions, approximately at least, before they open it, but only because the phrase "Middle Ages" has come to be taken for granted; has come to carry with it certain assumptions and presumptions — among them, that they apply to European history. But they were not there when men started to talk about medium aevum or media aetas, or coined other phrases as they cast about to express what they wanted to say. There was a time when the Middle Ages was a new idea, an invention, in fact.
J.M. Roberts, A History of Europe 162 (1996 U.S. ed.) (italics in original, punctuation corrected to US standard).
Discuss at least three of the following five items in light of this passage:
- Justice Scalia's assertion that the legislative record is irrelevant to statutory or constitutional interpretation, particularly as declaimed in his majority opinion in District of Columbia v. Heller, 554 U.S. 570 (2008) and in his concurring opinion in Citizens United v. Federal Election Comm'n, 558 U.S. ___, 130 S. Ct. 876 (2010)
- The set of Hirabayashi v. U.S., 320 U.S. 81 (1943) and Korematsu v. U.S., 323 U.S. 214 (1944), contrasted with U.S. v. Windsor, 570 U.S. ___, 133 S. Ct. 2675 (2013).
- The meaning of the word "author" in 17 U.S.C. § 201(b), contrasted with the meaning of the word "author" in the enabling constitutional provision (Art. I, § 8, cl. 8)
- The meaning of the word "parody" in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) as interpreted in Dr. Suess Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997).
- The general judicial refusal under "rational basis" review to consider only what a legislative or executive actually considered as reflected in the contemporaneous record, but instead consider what it might hypothetically have considered, as a valid rationale for an action or provision challenged as "unconstitutional"
Your response should included specific examples and counterexamples from both legal and nonlegal sources. Your answer may not exceed 1,250 words (approximately five double-spaced pages) excluding citations.