| |
| |
| Preface | |
| |
| |
| Introduction | |
| |
| |
| The Interpretive Perspective | |
| |
| |
| The Normative Perspective | |
| |
| |
| The Comparative Perspective | |
| |
| |
| |
| Institutional and Interpretive Foundations | |
| |
| |
| |
| The Supreme Court | |
| |
| |
| The Justices: Politics of Appointment | |
| |
| |
| The Federal Court System | |
| |
| |
| Jurisdiction: The Power to Hear Cases and Controversies | |
| |
| |
| Congressional Control Over Appellate Jurisdiction | |
| |
| |
| Deciding to Decide: Decision-Making Procedures | |
| |
| |
| Coming to Decision: Voting on Cases and Writing Opinions | |
| |
| |
| The Impact of Decisions | |
| |
| |
| Understanding Judicial Opinions | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Generalized or Specialized Jurisdiction | |
| |
| |
| Centralized and Decentralized Systems of Constitutional Review | |
| |
| |
| The Effects of Judicial Review | |
| |
| |
| Differences in Judicial Opinions | |
| |
| |
| Methods of Judicial Appointment and Terms of Office | |
| |
| |
| Conclusion | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| |
| The Constitution and Its Interpretation | |
| |
| |
| The Constitution | |
| |
| |
| The Why and What of Constitutional Interpretation | |
| |
| |
| Sources and Methods of Interpretation | |
| |
| |
| Textualism | |
| |
| |
| Original History | |
| |
| |
| Doctrinalism | |
| |
| |
| Precedent | |
| |
| |
| Prudentialism | |
| |
| |
| Structuralism | |
| |
| |
| Philosophical and Aspirational Argument | |
| |
| |
| Limits to Interpretation: An Unconstitutional Constitutional Amendment? | |
| |
| |
| Griswold v. Connecticut: A Case Study in Interpretation | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| |
| Intergovernmental Powers and Relationships | |
| |
| |
| |
| Judicial Power | |
| |
| |
| The Constitution and Judicial Review | |
| |
| |
| The Early Struggle for Judicial Supremacy | |
| |
| |
| Expansion of Judicial Power | |
| |
| |
| Self-Imposed Limits on Judicial Power | |
| |
| |
| Rules of Access | |
| |
| |
| Political Questions | |
| |
| |
| Judicial Review and Constitutional Amendments | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Marbury v. Madison (1803) | |
| |
| |
| Martin v. Hunter's Lessee (1816) | |
| |
| |
| Dred Scott v. Sandford (1856) | |
| |
| |
| Cooper v. Aaron (1958) | |
| |
| |
| Ex Parte McCardle (1868) | |
| |
| |
| Luther v. Borden (1849) | |
| |
| |
| Baker v. Carr (1962) | |
| |
| |
| Goldwater v. Carter (1979) | |
| |
| |
| Nixon v. United States (1993) | |
| |
| |
| |
| Separation of Powers | |
| |
| |
| The View of the Framers | |
| |
| |
| Separation of Powers Today | |
| |
| |
| Congressional Powers and Their Limits | |
| |
| |
| Congressional Investigations | |
| |
| |
| Executive-Legislative Relations | |
| |
| |
| The Principle of Nondelegation | |
| |
| |
| The Steel Seizure Case | |
| |
| |
| Separation of Powers Reasserted | |
| |
| |
| Appointment and Removal Power | |
| |
| |
| Executive-Judicial Relations | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Schechter Poultry Corporation v. United States (1935) | |
| |
| |
| Youngstown Sheet & Tube Co. v. Sawyer (1952) | |
| |
| |
| Powell v. McCormack (1969) | |
| |
| |
| Immigration and Naturalization Service v. Chadha (1983) | |
| |
| |
| Morrison v. Olson (1988) | |
| |
| |
| United States v. Nixon (1974) | |
| |
| |
| Clinton v. Jones (1997) | |
| |
| |
| Clinton v. City of New York (1998) | |
| |
| |
| |
| Foreign Affairs and Constitutional Crises | |
| |
| |
| The Constitutional Basis and Structure of Foreign Affairs Powers | |
| |
| |
| Separated and Shared Powers | |
| |
| |
| An Invitation to Struggle: Contests for Power Between Congress and the President | |
| |
| |
| The Growth of the Imperial Presidency in Foreign Affairs | |
| |
| |
| The War Powers Resolution | |
| |
| |
| The Constitution in Crisis | |
| |
| |
| Crises and the Constitution | |
| |
| |
| How Do Governments Respond to Crises? | |
| |
| |
| Inherent Powers and the Theory of Prerogative | |
| |
| |
| The Constitutional Limitations Theory | |
| |
| |
| Judicial Review and Foreign Affairs | |
| |
| |
| Extraconstitutional Sources of Power | |
| |
| |
| Justiciability and the Political Questions Doctrine | |
| |
| |
| War and Civil Liberties | |
| |
| |
| The Constitution and the War on Terrorism | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Foreign Affairs and the German Basic Law | |
| |
| |
| Accountability and the Political Questions Doctrine in Canada | |
| |
| |
| Judicial Review and the Political Questions Doctrine in Canada | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| State of Missouri v. Holland (1920) | |
| |
| |
| Youngstown Sheet & Tube Co. v. Sawyer (1952) | |
| |
| |
| The Prize Cases (1862) | |
| |
| |
| War Powers Resolution (1973) | |
| |
| |
| Iraq Resolution (2002) | |
| |
| |
| United States. v. Curtiss-Wright Export Corp. (1936) | |
| |
| |
| Korematsu v. United States (1944) | |
| |
| |
| Zadvydas v. Davis (2001) | |
| |
| |
| Ex Parte Milligan (1866) | |
| |
| |
| Ex Parte Quirin (1942) | |
| |
| |
| |
| Federalism and State Regulation | |
| |
| |
| Enumerated, Implied, and Reserved Powers | |
| |
| |
| Marshall's Nationalism | |
| |
| |
| Dual Federalism and Judicial Dualism | |
| |
| |
| The Revival of Implied Limits on Federal Power | |
| |
| |
| State Sovereignty and the Eleventh Amendment | |
| |
| |
| Local Power over Commerce | |
| |
| |
| Preemption | |
| |
| |
| Federal-State Comity | |
| |
| |
| Interstate Comity | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| McCulloch v. State of Maryland (1819) | |
| |
| |
| New York v. United States (1992) | |
| |
| |
| Printz v. United States (1997) | |
| |
| |
| U.S. Term Limits, Inc. v. Thornton (1995) | |
| |
| |
| Alden v. Maine (1999) | |
| |
| |
| Federal Maritime Commission v. South Carolina State Ports Authority (2002) | |
| |
| |
| Cooley v. Board of Wardens (1851) | |
| |
| |
| Southern Pacific Company v. State of Arizona (1945) | |
| |
| |
| City of Philadelphia v. New Jersey (1978) | |
| |
| |
| Baldwin v. Fish and Game Commission of Montana (1978) | |
| |
| |
| |
| Congressional Powers | |
| |
| |
| Regulating Interstate Commerce | |
| |
| |
| Marshall's Textualism | |
| |
| |
| Post-Gibbons Checks on National Power | |
| |
| |
| Modern Commerce Clause Jurisprudence | |
| |
| |
| New-Found Limits on Congressional Power | |
| |
| |
| The Rise and Fall of a Constitutional Doctrine | |
| |
| |
| A Return to State Autonomy | |
| |
| |
| Taxing and Spending Power | |
| |
| |
| Additional Congressional Powers | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Gibbons v. Ogden (1824) | |
| |
| |
| United States v. E.C. Knight Co. et al. (1895) | |
| |
| |
| Champion v. Ames (1903) | |
| |
| |
| Hammer v. Dagenhart (1918) | |
| |
| |
| National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) | |
| |
| |
| Wickard v. Filburn (1942) | |
| |
| |
| Heart of Atlanta Motel, Inc. v. United States (1964) | |
| |
| |
| National League of Cities v. Usery (1976) | |
| |
| |
| Garcia v. San Antonio Metropolitan Transit Authority (1985) | |
| |
| |
| United States v. Lopez (1995) | |
| |
| |
| United States v. Morrison (2000) | |
| |
| |
| United States v. Butler (1936) | |
| |
| |
| South Dakota v. Dole (1987) | |
| |
| |
| |
| Voting and Political Representation | |
| |
| |
| The Constitutional Framework and Political Participation | |
| |
| |
| The Apportionment Revolution | |
| |
| |
| Political Parties and Elections | |
| |
| |
| Money and Politics | |
| |
| |
| Bush v. Gore | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Reynolds v. Sims (1964) | |
| |
| |
| Davis v. Bandemer (1986) | |
| |
| |
| Shaw v. Reno (1993) | |
| |
| |
| Hunt v. Cromartie (1999) | |
| |
| |
| Democratic Party of the United States v. Wisconsin (1981) | |
| |
| |
| Buckley v. Valeo (1976) | |
| |
| |
| Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) | |
| |
| |
| Bush v. Gore (2000) | |
| |
| |
| |
| Liberty, Community, and Constitutional Interpretation under the Bill of Rights | |
| |
| |
| Bills of Rights in Other Constitutions | |
| |
| |
| Conclusion | |
| |
| |
| |
| The Bill of Rights, Incorporation, and Capital Punishment | |
| |
| |
| Constitutional Theory and the Need for a Bill of Rights | |
| |
| |
| The Reconstruction Amendments and the Bill of Rights | |
| |
| |
| The Fourteenth Amendment and the Incorporation Doctrine | |
| |
| |
| The Fundamental Fairness Doctrine | |
| |
| |
| Total Incorporation | |
| |
| |
| Total Incorporation "Plus" | |
| |
| |
| Selective Incorporation | |
| |
| |
| Continuing Incorporation Problems | |
| |
| |
| The Bill of Rights and Capital Punishment | |
| |
| |
| Who Gets the Death Penalty? | |
| |
| |
| Continuing Death Penalty Issues: Does Innocence Matter? | |
| |
| |
| Summary | |
| |
| |
| Comparative Perspectives | |
| |
| |
| The Death Penalty and Judicial Power | |
| |
| |
| Conclusion | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Barron v. Baltimore (1833) | |
| |
| |
| The Slaughter-House Cases (1873) | |
| |
| |
| Palko v. Connecticut (1937) | |
| |
| |
| Adamson v. California (1947) | |
| |
| |
| Rochin v. California (1952) | |
| |
| |
| Duncan v. Louisiana (1968) | |
| |
| |
| Gregg v. Georgia (1976) | |
| |
| |
| McCleskey v. Kemp (1987) | |
| |
| |
| Atkins v. Virginia (2002) | |
| |
| |
| |
| Liberty and Property | |
| |
| |
| The Contracts Clause and the Vested Rights Doctrine | |
| |
| |
| The Rise and Fall of Economic Due Process | |
| |
| |
| The Decline of Economic Due Process | |
| |
| |
| The Takings Clause and Due Process | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Rights to Property and Occupational Liberty | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Calder v. Bull (1798) | |
| |
| |
| Fletcher v. Peck (1810) | |
| |
| |
| Charles River Bridge Company v. Warren Bridge (1837) | |
| |
| |
| Home Building & Loan Association v. Blaisdell (1934) | |
| |
| |
| Munn v. Illinois (1876) | |
| |
| |
| Lochner v. New York (1905) | |
| |
| |
| West Coast Hotel v. Parrish (1937) | |
| |
| |
| Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) | |
| |
| |
| |
| Fundamental Rights: Privacy and Personhood | |
| |
| |
| The Early Development of Noneconomic Substantive Due Process | |
| |
| |
| Carolene Products: Justifying Judicial Protection of Noneconomic Due Process | |
| |
| |
| Early Applications of Carolene Products: Buck, Skinner, and Rights to Procreation | |
| |
| |
| Substantive Due Process: The Development of a Constitutional Right to Privacy | |
| |
| |
| Early Efforts to Construct a Constitutional Right to Privacy | |
| |
| |
| Roe v. Wade: Privacy and Abortion | |
| |
| |
| Abortion Litigation After Roe | |
| |
| |
| Substantive Due Process and Other Liberty Interests | |
| |
| |
| What Is Liberty? | |
| |
| |
| Liberty and "Unconventional" Sexual Practices | |
| |
| |
| Substantive Due Process and the Family | |
| |
| |
| Substantive Due Process and Rights Concerning the Quality of Life | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Privacy and Abortion in Other Constitutional Democracies | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| United States v. Carolene Products (1938) | |
| |
| |
| Meyer v. Nebraska (1923) | |
| |
| |
| Skinner v. Oklahoma (1942) | |
| |
| |
| Griswold v. Connecticut (1965) | |
| |
| |
| Roe v. Wade (1973) | |
| |
| |
| Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) | |
| |
| |
| Stenberg v. Carhart (2000) | |
| |
| |
| DeShaney v. Winnebago County Department of Social Services (1989) | |
| |
| |
| Moore v. East Cleveland (1977) | |
| |
| |
| Troxel v. Granville (2000) | |
| |
| |
| Bowers v. Hardwick (1986) | |
| |
| |
| Lawrence v. Texas (2003) | |
| |
| |
| Michael H. v. Gerald D. (1989) | |
| |
| |
| Washington v. Glucksberg (1997) | |
| |
| |
| |
| Freedom of Speech | |
| |
| |
| The First Amendment: An Interpretive Problem | |
| |
| |
| Original Intent | |
| |
| |
| Text, Theory, and Purpose | |
| |
| |
| Balancing versus Absolutism | |
| |
| |
| Definitional Balancing | |
| |
| |
| Speech, Conduct, and Time-Place-Manner (TPM) Restrictions | |
| |
| |
| Symbolic Speech and Expressive Conduct | |
| |
| |
| Speech and the Polity: Normative Issues | |
| |
| |
| Internal Security and Advocacy of Unlawful Conduct | |
| |
| |
| Defamation and Privacy | |
| |
| |
| Offensive Talk, Fighting Words, and Hate Speech | |
| |
| |
| Indecency and Obscenity | |
| |
| |
| New Frontiers of Speech | |
| |
| |
| The Freedom of Association | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Schenck v. United States (1919) | |
| |
| |
| Dennis v. United States (1951) | |
| |
| |
| Brandenburg v. Ohio (1969) | |
| |
| |
| New York Times Co. v. United States (1971) | |
| |
| |
| Chaplinsky v. New Hampshire (1942) | |
| |
| |
| United States v. O'Brien (1968) | |
| |
| |
| Cohen v. California (1971) | |
| |
| |
| New York Times Co. v. Sullivan (1964) | |
| |
| |
| The Sedition Act of 1798 | |
| |
| |
| Texas v. Johnson (1989) | |
| |
| |
| R.A.V. v. City of St. Paul (1992) | |
| |
| |
| Hill v. Colorado (2000) | |
| |
| |
| Miller v. California (1973) | |
| |
| |
| City of Erie v. Pap's A. M. (2000) | |
| |
| |
| Boy Scouts of America v. Dale (2000) | |
| |
| |
| |
| Freedom of Religion in Public and Private Life | |
| |
| |
| Constitutional Interpretation and the Religion Clauses of the First Amendment | |
| |
| |
| The Problem of Definition: What Is Religion? | |
| |
| |
| The Establishment Clause: Strict Separation or Accommodation? | |
| |
| |
| Religious Education and Observances in Public Schools | |
| |
| |
| Prayer in the Schools | |
| |
| |
| The School Curriculum | |
| |
| |
| Public Aid for Private Religious Schools | |
| |
| |
| Other Establishment Clause Issues | |
| |
| |
| The Free Exercise Clause | |
| |
| |
| Free Exercise and the Public Schools | |
| |
| |
| Free Exercise and the Military | |
| |
| |
| Reconciling the Establishment and Free Exercise Clauses | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Establishment in Comparative Perspective | |
| |
| |
| Free Exercise in Comparative Perspective | |
| |
| |
| Defining Religion | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Everson v. Board of Education (1947) | |
| |
| |
| Engel v. Vitale (1962) | |
| |
| |
| Lemon v. Kurtzman (1971) | |
| |
| |
| Lynch v. Donnelly (1984) | |
| |
| |
| Edwards v. Aguillard (1987) | |
| |
| |
| Wallace v. Jaffree (1985) | |
| |
| |
| Lee v. Weisman (1992) | |
| |
| |
| Good News Club et al. v. Milford Central School (2001) | |
| |
| |
| Zelman, Superintendent of Public Instruction of Ohio v. Simmons-Harris (2002) | |
| |
| |
| Davis v. Beason (1890) | |
| |
| |
| West Virginia v. Barnette (1943) | |
| |
| |
| Wisconsin v. Yoder (1972) | |
| |
| |
| Sherbert v. Verner (1963) | |
| |
| |
| Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) | |
| |
| |
| Employment Division v. Smith (1990) | |
| |
| |
| Boerne v. Flores (1997) | |
| |
| |
| |
| The Equal Protection Clause and Racial Discrimination | |
| |
| |
| Interpreting Equality | |
| |
| |
| Racial Discrimination and the Supreme Court | |
| |
| |
| Slavery and the Constitution | |
| |
| |
| Civil War Amendments, Jim Crow, and Separate but Equal | |
| |
| |
| Brown and the Evolution of Equal Protection | |
| |
| |
| Affirmative Action and Equality | |
| |
| |
| Private Discrimination and the State Action Doctrine | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Dred Scott v. Sandford (1856) | |
| |
| |
| Strauder v. West Virginia (1880) | |
| |
| |
| Plessy v. Ferguson (1896) | |
| |
| |
| Brown v. Board of Education of Topeka (1954) | |
| |
| |
| Keyes v. School District No. 1, Denver, Colorado (1973) | |
| |
| |
| Milliken v. Bradley (1974) | |
| |
| |
| The Civil Rights Cases (1883) | |
| |
| |
| Shelley v. Kraemer (1948) | |
| |
| |
| Palmore v. Sidoti (1984) | |
| |
| |
| Regents of the University of California v. Bakke (1978) | |
| |
| |
| Adarand Constructors, Inc. v. Pena (1995) | |
| |
| |
| Grutter v. Bollinger (2003) | |
| |
| |
| |
| Gender Discrimination and Other Claims to Equality | |
| |
| |
| Legislative Differentiation and the Meaning of Equality | |
| |
| |
| Equal Protection and the Supreme Court: 1938-1960 | |
| |
| |
| The 1960s and Beyond | |
| |
| |
| Fundamental Interests and Equality | |
| |
| |
| Gender Discrimination | |
| |
| |
| Other Claims to Equality and the Quest for Standards | |
| |
| |
| Comparative Perspectives | |
| |
| |
| Selected Bibliography | |
| |
| |
| Selected Comparative Bibliography | |
| |
| |
| Shapiro v. Thompson (1969) | |
| |
| |
| San Antonio Independent School District v. Rodriguez (1973) | |
| |
| |
| Plyler v. Doe (1982) | |
| |
| |
| Frontiero v. Richardson (1973) | |
| |
| |
| Craig v. Boren (1976) | |
| |
| |
| United States v. Virginia (1996) | |
| |
| |
| Nguyen v. Immigration and Naturalization Service (2001) | |
| |
| |
| Foley v. Connelie (1978) | |
| |
| |
| Trimble v. Gordon (1977) | |
| |
| |
| Massachusetts Board of Retirement v. Murgia (1976) | |
| |
| |
| Cleburne v. Cleburne Living Center (1985) | |
| |
| |
| Romer v. Evans (1996) | |
| |
| |
| |
| Declaration of Independence | |
| |
| |
| |
| The United States Constitution | |
| |
| |
| |
| First Inaugural Address, Abraham Lincoln | |
| |
| |
| |
| The Gettysburg Address, Abraham Lincoln | |
| |
| |
| |
| Understanding Supreme Court Opinions | |
| |
| |
| |
| Glossary of Terms | |
| |
| |
| |
| Chronological Chart of the Justices | |
| |
| |
| |
| Legal Research on the World Wide Web | |
| |
| |
| |
| The Federalist No. 78 | |
| |
| |
| Table of Cases | |
| |
| |
| Index | |
| |
| |
| About the Authors | |