| |
| |
Preface | |
| |
| |
Acknowledgments | |
| |
| |
| |
Historical Background and Contemporary Themes | |
| |
| |
| |
The Constitution's Functions | |
| |
| |
| |
Why a Constitution? | |
| |
| |
| |
A Brief History of the Creation and Ratification of the Constitution and Its Amendments | |
| |
| |
| |
How Should the Constitution Be Interpreted? | |
| |
| |
| |
Who Should Be the Authoritative Interpreter of the Constitution? | |
| |
| |
| |
The Federal Judicial Power | |
| |
| |
| |
Introduction | |
| |
| |
| |
The Authority for Judicial Review | |
| |
| |
| |
Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential Actions | |
| |
| |
| |
The Authority for Judicial Review of State and Local Actions | |
| |
| |
| |
Introduction to the Justiciability Doctrines | |
| |
| |
| |
The Prohibition Against Advisory Opinions | |
| |
| |
| |
Standing | |
| |
| |
| |
Introduction | |
| |
| |
| |
Injury | |
| |
| |
| |
Causation and Redressability | |
| |
| |
| |
The Limitation on Third-Party Standing | |
| |
| |
| |
The Prohibition Against Generalized Grievances | |
| |
| |
| |
The Requirement That the Plaintiff Be Within the Zone of Interests Protected by the Statute | |
| |
| |
| |
Ripeness | |
| |
| |
| |
Introduction | |
| |
| |
| |
Criteria for Determining Ripeness: The Hardship to Denying Review | |
| |
| |
| |
Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review | |
| |
| |
| |
Mootness | |
| |
| |
| |
Description of the Mootnes Doctrine | |
| |
| |
| |
Exceptions to the Mootness Doctrine: Collateral Consequences | |
| |
| |
| |
Exceptions to the Mootness Doctrine: Wrongs Capable of Repetition Yet Evading Review | |
| |
| |
| |
Exceptions to the Mootness Doctrine: Voluntary Cessation | |
| |
| |
| |
Exceptions to the Mootness Doctrine: Class Actions | |
| |
| |
| |
The Political Question Doctrine | |
| |
| |
| |
What Is the Political Question Doctrine? | |
| |
| |
| |
Should There Be a Political Question Doctrine? | |
| |
| |
| |
The "Republican Form of Government" Clause and Judicial Review of the Electoral Process | |
| |
| |
| |
Foreign Policy | |
| |
| |
| |
Congressional Self-Governance | |
| |
| |
| |
The Process for Ratifying Constitutional Amendments | |
| |
| |
| |
Excessive Interference With Coordinate Branches of Government | |
| |
| |
| |
Impeachment and Removal from Office: Nixon v. United States | |
| |
| |
| |
Congressional Control of Federal Court Jurisdiction | |
| |
| |
| |
Introduction | |
| |
| |
| |
Congressional Control of Supreme Court Jurisdiction | |
| |
| |
| |
Congressional Control of Lower Federal Court Jurisdiction | |
| |
| |
| |
Sovereign Immunity as a Limit on the Federal Judicial Power | |
| |
| |
| |
History of the Ratification of the Eleventh Amendment | |
| |
| |
| |
What Does the Eleventh Amendment Mean? Competing Theories | |
| |
| |
| |
The Application of the Eleventh Amendment: What's Barred and What's Allowed | |
| |
| |
| |
Ways Around the Eleventh Amendment: Suits Against State Officers | |
| |
| |
| |
Ways Around the Eleventh Amendment: Waiver | |
| |
| |
| |
Ways Around the Eleventh Amendment: Suits Pursuant to Federal Laws | |
| |
| |
| |
The Federal Legislative Power | |
| |
| |
| |
The Doctrine of Limited Federal Legislative Authority | |
| |
| |
| |
McCulloch v. Maryland and the Scope of Congressional Powers | |
| |
| |
| |
The Commerce Power | |
| |
| |
| |
Introduction to the Commerce Power | |
| |
| |
| |
Gibbons v. Ogden and the Definition of the Commerce Power | |
| |
| |
| |
The Commerce Clause Before 1937 | |
| |
| |
| |
The Commerce Clause From 1937 to 1995 | |
| |
| |
| |
The Commerce Clause After United States v. Lopez | |
| |
| |
| |
The Taxing and Spending Power | |
| |
| |
| |
The Scope of the Taxing and Spending Power | |
| |
| |
| |
The Taxing Power | |
| |
| |
| |
The Spending Power | |
| |
| |
| |
Other Congressional Powers Under Article I and Article IV | |
| |
| |
| |
Foreign Policy | |
| |
| |
| |
Domestic Affairs | |
| |
| |
| |
Congress's Powers Under the Reconstruction Era Amendments | |
| |
| |
| |
May Congress Regulate Private Conduct? | |
| |
| |
| |
What Is the Scope of Congress's Power? | |
| |
| |
| |
Congress's Power to Authorize Suits Against State Governments | |
| |
| |
| |
Congress's Power to Investigate | |
| |
| |
| |
The Tenth Amendment and Federalism as a Limit on Congressional Authority | |
| |
| |
| |
Delegation of Legislative Power and the Problems of the Administrative State | |
| |
| |
| |
The Nondelegation Doctrine and Its Demise | |
| |
| |
| |
The Legislative Veto | |
| |
| |
| |
Delegation of Executive Power to Congress and Its Officials | |
| |
| |
| |
The Federal Executive Power | |
| |
| |
| |
Express and Inherent Presidential Powers | |
| |
| |
| |
Appointment and Removal Power | |
| |
| |
| |
The Appointment Power | |
| |
| |
| |
The Removal Power | |
| |
| |
| |
Executive Privilege | |
| |
| |
| |
Presidential Immunity to Criminal and Civil Suits | |
| |
| |
| |
Pardon Power | |
| |
| |
| |
Foreign Policy | |
| |
| |
| |
Are Foreign Policy and Domestic Affairs Different? | |
| |
| |
| |
Treaties and Executive Agreements | |
| |
| |
| |
War Powers | |
| |
| |
| |
Impeachment and Removal From Office | |
| |
| |
| |
Limits on State Regulatory and Taxing Power | |
| |
| |
| |
Introduction | |
| |
| |
| |
Preemption of State and Local Laws | |
| |
| |
| |
Introduction | |
| |
| |
| |
Express Preemption of State Laws | |
| |
| |
| |
"Field Preemption" | |
| |
| |
| |
Conflicts Between State and Federal Laws | |
| |
| |
| |
State Laws That Impede Achievement of Federal Objectives | |
| |
| |
| |
Preemption of State Taxation or Regulation of the Federal Government | |
| |
| |
| |
The Dormant Commerce Clause | |
| |
| |
| |
What Is the Dormant Commerce Clause? | |
| |
| |
| |
Should There Be a Dormant Commerce Clause? | |
| |
| |
| |
An Overview of the Dormant Commerce Clause | |
| |
| |
| |
The Central Question: Is the State Discriminating Against Out-of-Staters? | |
| |
| |
| |
The Analysis When a State Is Not Discriminating | |
| |
| |
| |
The Analysis When a State Is Discriminating | |
| |
| |
| |
Exceptions | |
| |
| |
| |
State Taxation of Interstate Commerce | |
| |
| |
| |
The Test Used to Evaluate State Taxes of Interstate Commerce | |
| |
| |
| |
The Requirement for a Substantial Nexus to the Taxing State | |
| |
| |
| |
The Requirement for Fair Apportionment | |
| |
| |
| |
The Prohibition of Discrimination Against Out-of-Staters | |
| |
| |
| |
The Requirement for Fair Relationship to Services Provided by the State | |
| |
| |
| |
The Privileges and Immunities Clause of Article IV, [section]2 | |
| |
| |
| |
Introduction | |
| |
| |
| |
What Are the "Privileges and Immunities" of Citizenship? | |
| |
| |
| |
What Is Sufficient Justification for Discrimination? | |
| |
| |
| |
The Structure of the Constitution's Protection of Civil Rights and Civil Liberties | |
| |
| |
| |
Introduction | |
| |
| |
| |
Textual Provisions, Apart From the Bill of Rights, Protecting Individual Rights | |
| |
| |
| |
A Review of the Textual Provisions Protecting Rights | |
| |
| |
| |
The Prohibition of Bills of Attainder | |
| |
| |
| |
The Prohibition Against Ex Post Facto Laws | |
| |
| |
| |
The Application of the Bill of Rights to the States | |
| |
| |
| |
The Rejection of Application Before the Civil War | |
| |
| |
| |
A False Start: The Privileges or Immunities Clause and the Slaughter-House Cases | |
| |
| |
| |
The Incorporation of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment | |
| |
| |
| |
The Application of Civil Rights and Civil Liberties to Private Conduct: The State Action Doctrine | |
| |
| |
| |
The Requirement for State Action | |
| |
| |
| |
Why Have a State Action Requirement? | |
| |
| |
| |
Is It the Government? | |
| |
| |
| |
The Exceptions to the State Action Doctrine | |
| |
| |
| |
The Levels of Scrutiny | |
| |
| |
| |
Procedural Due Process | |
| |
| |
| |
The Distinction Between Procedural and Substantive Due Process | |
| |
| |
| |
What Is a "Deprivation"? | |
| |
| |
| |
Is It a Deprivation of "Life, Liberty, or Property"? | |
| |
| |
| |
The "Rights-Privileges" Distinction and Its Demise | |
| |
| |
| |
Deprivations of "Property" | |
| |
| |
| |
Deprivations of "Liberty" | |
| |
| |
| |
Deprivations of "Life" | |
| |
| |
| |
What Procedures Are Required? | |
| |
| |
| |
When Is Procedural Due Process Required? | |
| |
| |
| |
What Is the Test for Determining What Process Is Due? | |
| |
| |
| |
The Mathews v. Eldridge Test Applied | |
| |
| |
| |
Economic Liberties | |
| |
| |
| |
Introduction | |
| |
| |
| |
Economic Substantive Due Process | |
| |
| |
| |
Economic Substantive Due Process During the Nineteenth Century | |
| |
| |
| |
Economic Substantive Due Process During the Lochner Era | |
| |
| |
| |
Economic Substantive Due Process Since 1937 | |
| |
| |
| |
The Contracts Clause | |
| |
| |
| |
Introduction | |
| |
| |
| |
The Contracts Clause Before 1934 | |
| |
| |
| |
The Contracts Clause Since 1934 | |
| |
| |
| |
The Takings Clause | |
| |
| |
| |
Introduction | |
| |
| |
| |
What Is a "Taking"? | |
| |
| |
| |
What Is "Property"? | |
| |
| |
| |
What Is a Taking for "Public Use"? | |
| |
| |
| |
What Is the Requirement for "Just Compensation"? | |
| |
| |
| |
Equal Protection | |
| |
| |
| |
Introduction | |
| |
| |
| |
Constitutional Provisions Concerning Equal Protection | |
| |
| |
| |
A Framework for Equal Protection Analysis | |
| |
| |
| |
The Rational Basis Test | |
| |
| |
| |
Introduction | |
| |
| |
| |
The Requirement for a "Legitimate Purpose" | |
| |
| |
| |
The Requirement for a "Reasonable Relationship" | |
| |
| |
| |
Classifications Based on Race and National Origin | |
| |
| |
| |
Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments | |
| |
| |
| |
Strict Scrutiny for Discrimination Based on Race and National Origin | |
| |
| |
| |
Proving the Existence of a Race or National Origin Classification | |
| |
| |
| |
Remedies: The Problem of School Segregation | |
| |
| |
| |
Racial Classifications Benefiting Minorities | |
| |
| |
| |
Gender Classifications | |
| |
| |
| |
The Level of Scrutiny | |
| |
| |
| |
Proving the Existence of a Gender Classification | |
| |
| |
| |
Gender Classifications Benefiting Women | |
| |
| |
| |
Alienage Classifications | |
| |
| |
| |
Introduction | |
| |
| |
| |
Strict Scrutiny as the General Rule | |
| |
| |
| |
Alienage Classifications Related to Self-Government and the Democratic Process | |
| |
| |
| |
Congressionally Approved Discrimination | |
| |
| |
| |
Undocumented Aliens and Equal Protection | |
| |
| |
| |
Discrimination Against Nonmarital Children | |
| |
| |
| |
Other Types of Discrimination: Rational Basis Review | |
| |
| |
| |
Age Classifications | |
| |
| |
| |
Discrimination Based on Disability | |
| |
| |
| |
Wealth Discrimination | |
| |
| |
| |
Discrimination Based on Sexual Orientation | |
| |
| |
| |
Fundamental Rights Under Due Process and Equal Protection | |
| |
| |
| |
Introduction | |
| |
| |
| |
Constitutional Bases for Fundamental Rights | |
| |
| |
| |
Framework for Analyzing Fundamental Rights | |
| |
| |
| |
Constitutional Protection for Family Autonomy | |
| |
| |
| |
The Right to Marry | |
| |
| |
| |
The Right to Custody of One's Children | |
| |
| |
| |
The Right to Keep the Family Together | |
| |
| |
| |
The Right to Control Upbringing of Children | |
| |
| |
| |
Constitutional Protection for Reproductive Autonomy | |
| |
| |
| |
The Right to Procreate | |
| |
| |
| |
The Right to Purchase and Use Contraceptives | |
| |
| |
| |
The Right to Abortion | |
| |
| |
| |
Constitutional Protection for Sexual Activity and Sexual Orientation | |
| |
| |
| |
Constitutional Protection for Medical Care Decisions | |
| |
| |
| |
Constitutional Protection for Control Over Information | |
| |
| |
| |
Constitutional Protection for Travel | |
| |
| |
| |
The Recognition of the Right to Travel as a Fundamental Right | |
| |
| |
| |
What Constitutes an Infringement of the Right to Travel? | |
| |
| |
| |
Restrictions on Foreign Travel | |
| |
| |
| |
Constitutional Protection for Voting | |
| |
| |
| |
The Right to Vote as a Fundamental Right | |
| |
| |
| |
Restrictions on the Ability to Vote | |
| |
| |
| |
Dilution of the Right to Vote | |
| |
| |
| |
Inequalities in Counting Votes Within a State | |
| |
| |
| |
Racial Discrimination in Voting Rights | |
| |
| |
| |
Restrictions on Parties and Candidates | |
| |
| |
| |
Constitutional Protection for Access to Courts | |
| |
| |
| |
Constitutional Protection for a Right to Education | |
| |
| |
| |
First Amendment: Expression | |
| |
| |
| |
Introduction | |
| |
| |
| |
Historical Background | |
| |
| |
| |
Why Should Freedom of Speech Be a Fundamental Right? | |
| |
| |
| |
The Issues in Free Expression Analysis | |
| |
| |
| |
Free Speech Methodology | |
| |
| |
| |
The Distinction Between Content-Based and Content-Neutral Laws | |
| |
| |
| |
Vagueness and Overbreadth | |
| |
| |
| |
Prior Restraints | |
| |
| |
| |
What Is an Infringement of Freedom of Speech? | |
| |
| |
| |
Types of Unprotected and Less Protected Speech | |
| |
| |
| |
Introduction | |
| |
| |
| |
Incitement of Illegal Activity | |
| |
| |
| |
Fighting Words, the Hostile Audience, and the Problem of Racist Speech | |
| |
| |
| |
Sexually Oriented Speech | |
| |
| |
| |
Reputation, Privacy, Publicity, and the First Amendment: Torts and the First Amendment | |
| |
| |
| |
Symbolic Speech: Conduct That Communicates | |
| |
| |
| |
Commercial Speech | |
| |
| |
| |
Speech of Government Employees | |
| |
| |
| |
Attorneys' Speech | |
| |
| |
| |
Labor Picketing and Protests | |
| |
| |
| |
What Places Are Available for Speech? | |
| |
| |
| |
Introduction | |
| |
| |
| |
Government Properties and Speech | |
| |
| |
| |
Private Property and Speech | |
| |
| |
| |
Speech in Authoritarian Environments: Military, Prisons, and Schools | |
| |
| |
| |
Freedom of Association | |
| |
| |
| |
Introduction | |
| |
| |
| |
Laws Prohibiting or Punishing Membership | |
| |
| |
| |
Laws Requiring Disclosure of Membership | |
| |
| |
| |
Laws Prohibiting Discrimination | |
| |
| |
| |
Freedom of the Press | |
| |
| |
| |
Introduction | |
| |
| |
| |
Freedom of the Press as a Shield to Protect the Press From the Government | |
| |
| |
| |
Freedom of the Press as a Sword to Gain Access to Government Places and Papers | |
| |
| |
| |
First Amendment: Religion | |
| |
| |
| |
Introduction | |
| |
| |
| |
Constitutional Provisions Concerning Religion and the Tension Between Them | |
| |
| |
| |
What Is Religion? | |
| |
| |
| |
The Establishment Clause | |
| |
| |
| |
Competing Theories of the Establishment Clause | |
| |
| |
| |
Government Discrimination Among Religions | |
| |
| |
| |
The Lemon Test for the Establishment Clause | |
| |
| |
| |
Religious Speech and the First Amendment | |
| |
| |
| |
When Can Religion Become a Part of Government Activities? | |
| |
| |
| |
When Can Government Give Aid to Religion? | |
| |
| |
| |
The Free Exercise Clause | |
| |
| |
| |
Introduction | |
| |
| |
| |
Challenges to Laws Regulating or Burdening Religious Conduct | |
| |
| |
| |
Government Involvement in Religious Disputes | |
| |
| |
| |
The Constitution of the United States of America | |
| |
| |
Table of Cases | |
| |
| |
Index | |