TABLE OF CONTENTS Chapter 1. The Supreme Court s Authority and Role Chapter 2. Federalism: History and Principles

Transcription

1 PREFACE TO THE NINETEENTH EDITION... V TABLE OF CASES... XXV TABLE OF AUTHORITIES... XXXIX THE CONSTITUTION OF THE UNITED STATES OF AMERICA... LIX Chapter 1. The Supreme Court s Authority and Role... 1 Section 1. The Power of Judicial Review... 1 Marbury v. Madison... 2 The Background and Meaning of Marbury v. Madison... 9 Section 2. Supreme Court Authority to Review State Court Judgments Martin v. Hunter s Lessee Further Clashes Between Supreme Court and State Court Authority Section 3. Judicial Exclusivity in Constitutional Interpretation Cooper v. Aaron The Authoritativeness of Supreme Court Decisions Political Restraints on the Supreme Court Section 4. Constitutional and Prudential Limits on Constitutional Adjudication: The Case or Controversy Requirements Advisory Opinions Standing Lujan v. Defenders of Wildlife Massachusetts v. Environmental Protection Agency The Constitutional and Prudential Elements of Standing Mootness and Ripeness Political Questions Baker v. Carr Distinguishing Legal from Political Questions Chapter 2. Federalism: History and Principles Section 1. The Location of Sovereignty in the Federal System McCulloch v. Maryland The Background and Meaning of McCulloch v. Maryland U.S. Term Limits, Inc. v. Thornton Term Limits and McCulloch Section 2. The Limits of the Necessary and Proper Clause United States v. Comstock Federalism-Based Limits on the Necessary and Proper Clause? Section 3. Values Served by Federalism Chapter 3. The Commerce Power and Its Federalism-Based Limits Section 1. The Commerce Power Before the New Deal Gibbons v. Ogden Judicial Limits on the Commerce Power xi

2 xii Hammer v. Dagenhart [The Child Labor Case] Section 2. The Commerce Power and the New Deal Section 3. The Commerce Power After the New Deal NLRB v. Jones & Laughlin Steel Corp United States v. Darby Wickard v. Filburn Judicial Deference Toward Exercise of the Commerce Power Section 4. The Contemporary Commerce Power United States v. Lopez Rehnquist-Era Restrictions on the Commerce Power United States v. Morrison The Commerce Power Strikes Back? Gonzales v. Raich Commerce Clause Review Leading up to the Affordable Care Act National Federation of Independent Business v. Sebelius NFIB and the Commerce Power Section 5. The Tenth Amendment as an External Constraint on the Federal Commerce Power New York v. United States The Scope and Limits of the Anticommandeering Principle Section 6. State Sovereign Immunity and the Eleventh Amendment Chapter 4. The National Taxing and Spending Powers and Their Federalism-Based Limits Section 1. The Taxing Power as a Regulatory Device Child Labor Tax Case [Bailey v. Drexel Furniture Co.] National Federation of Independent Business v. Sebelius The Taxing Power as a Federal Regulatory Device After NFIB Section 2. The Spending Power as a Regulatory Device United States v. Butler The Spending Power After the New Deal South Dakota v. Dole The Spending Power Between Dole and NFIB National Federation of Independent Business v. Sebelius The Spending Power After NFIB Chapter 5. Federal Limits on State Regulation of Interstate Commerce Section 1. The Dormant Commerce Clause The Nondiscrimination Principle The History of the Dormant Commerce Clause Gibbons v. Ogden The Nascent Dormant Commerce Clause Facial Discrimination Against Out-of-State Commerce Philadelphia v. New Jersey Home Processing Requirements Dean Milk Co. v. Madison C & A Carbone, Inc. v. Clarkstown

3 xiii United Haulers Ass n v. Oneida-Herkimer Solid Waste Management Authority The Dean Milk-Carbone-United Haulers Trilogy The Market Participant Exception South-Central Timber Development, Inc. v. Wunnicke The Theory and Limits of the Market Participant Exception Facially Neutral Laws with Protectionist Purpose or Effect Baldwin v. G.A.F. Seelig, Inc H.P. Hood & Sons v. Du Mond Identifying Protectionism in Facially Neutral Laws Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce Kassel v. Consolidated Freightways Corp Balancing Interstate Harm Against Local Benefit Section 2. The Interstate Privileges and Immunities Clause of Article IV United Building & Construction Trades Council v. Mayor and Council of Camden The Scope and Limits of Interstate Privileges and Immunities Section 3. Congressional Ordering of Federal-State Relationships by Preemption and Consent Congressional Preemption of State Regulation Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Development Comm n Modes of Preemption Analysis Congressional Consent to State Regulation Section 4. Other Aspects of Federal-State Relationships State Taxation of Interstate Business and Income Intergovernmental Tax Immunities Intergovernmental Regulatory Immunities Mutual Obligations Among the States Chapter 6. Separation of Powers Section 1. Executive Assertions of Power Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] Executive Authority to Make National Domestic Policy Zivotofsky v. Kerry Executive Authority over Foreign and Military Affairs Dames & Moore v. Regan Dames & Moore in Light of Youngstown Section 2. Executive Discretion in Times of War or Terrorism The President, Congress, and War Powers Emergency Constitutionalism Executive Detention and Trial of Enemy Combatants Ex parte Quirin Quirin and the Executive Response to 9/ Hamdi v. Rumsfeld The Scope of Hamdi

4 xiv Hamdan v. Rumsfeld The Aftermath of Hamdan Boumediene v. Bush Assessing Hamdi, Hamdan and Boumediene Section 3. Congressional Authority to Restrain and Enable the Executive Congressional Control over the Actions of the Executive Branch INS v. Chadha Bicameralism and Presentment Clinton v. New York Congressional Constraints on Appointment and Removal of Executive Officers Bowsher v. Synar Morrison v. Olson The Aftermath of Morrison v. Olson Section 4. Congressional War and Treaty Powers, and the Implied Power over Foreign Affairs Woods v. Cloyd W. Miller Co Missouri v. Holland The War and Treaty Powers Section 5. Executive Privileges, Immunities and Congress s Power of Impeachment United States v. Nixon The Scope and Limits of Executive Privilege Clinton v. Jones The Implications and Aftermath of Clinton v. Jones Chapter 7. The Post-Civil War Amendments and the Incorporation of Fundamental Rights Section 1. Individual Rights Before the Civil War Barron v. Mayor and City Council of Baltimore Dred Scott v. Sandford The Aftermath of Dred Scott Section 2. The Post-Civil War Amendments Slaughter-House Cases The Meaning of the Slaughter-House Cases Saenz v. Roe Saenz v. Roe and the Right to Travel Section 3. The Incorporation of the Bill of Rights Through the Due Process Clause Duncan v. Louisiana Incorporation Since Duncan McDonald v. City of Chicago The Meaning and Implications of Heller and McDonald Chapter 8. Due Process Section 1. Substantive Due Process and Economic Liberties Lochner v. New York The Meaning and Implications of Lochner

5 xv Nebbia v. New York The Demise of Lochner After the New Deal Minimum Rationality Review of Economic Legislation Williamson v. Lee Optical Co Closer Scrutiny of Economic Classifications? Section 2. Substantive Due Process and Privacy Substantive Due Process, Childbearing, and Contraception Griswold v. Connecticut The Meaning and Implications of Griswold Substantive Due Process and Abortion Roe v. Wade The Meaning and Implications of Roe Planned Parenthood of Southeastern Pa. v. Casey The Meaning and Implications of Casey Gonzales v. Carhart Substantive Due Process and Marriage and Family Relationships Substantive Due Process, Sexuality, and Hybrid Due Process-Equal Protection Rights Romer v. Evans The Meaning and Implications of Romer Lawrence v. Texas The Meaning and Implications of Lawrence United States v. Windsor The Meaning and Implications of Windsor Obergefell v. Hodges The Meaning and Implications of Obergefell Substantive Due Process and Rights over the Timing and Circumstances of One s Death Washington v. Glucksberg The Meaning and Implications of Glucksberg Section 3. Procedural Due Process and the Right to a Hearing Defining Property and Liberty What Process Is Due? Section 4. Textual Guarantees of Economic Liberties: The Takings Clause and the Contracts Clause The Takings Clause The Public Use Requirement Kelo v. City of New London The Meaning and Implications of Kelo Regulatory Takings Pennsylvania Coal Co. v. Mahon The Meaning and Implications of Pennsylvania Coal The Contracts Clause Home Building & Loan Ass n v. Blaisdell The Scope and Limits of Blaisdell

6 xvi Chapter 9. Equal Protection Section 1. Minimum Rationality Review of Economic Regulation Railway Express Agency v. New York Judicial Deference to Economic Regulation U.S. Railroad Retirement Bd. v. Fritz Should Rationality Review Be Stricter? Section 2. Race Discrimination The Unconstitutionality of Racial Segregation Brown v. Board of Education [Brown I] The Meaning and Implications of Brown v. Board Implementing Brown v. Board Eliminating Other Vestiges of Segregation Loving v. Virginia Facial Discrimination Against Racial Minorities Racially Discriminatory Purpose and Effect Washington v. Davis The Meaning and Implications of Washington v. Davis Affirmative Action and Race Preferences Regents of Univ. of California v. Bakke Bakke and Amicus Briefs Race Preferences in Employment and Contracting Adarand Constructors, Inc. v. Pena Affirmative Action After Croson and Adarand Grutter v. Bollinger Gratz v. Bollinger The Meaning and Implications of Grutter and Gratz Racial Diversity in K 12 Public Education Parents Involved in Community Schools v. Seattle School District The Meaning and Implications of Parents Involved Race Preferences in Electoral Districting Shaw v. Reno [Shaw I] The Aftermath of Shaw I Section 3. Sex Discrimination Discriminating on the Basis of Sex Craig v. Boren Sex Equality After Craig v. Boren United States v. Virginia Sex Equality and Sex Differences Sex-Based Purpose and Effect Sex-Based Preferences: Affirmative Action for Women Section 4. Discrimination Based on Other Potentially Suspect Classifications Sexual Orientation Alienage Disability, Age, Poverty Cleburne v. Cleburne Living Center, Inc The Cabining of Suspect Classifications

7 xvii Section 5. The Fundamental Interests Branch of Equal Protection Fundamental Interest in Voting Harper v. Virginia State Board of Elections Kramer v. Union Free School District No Strict Scrutiny of Vote Denials Vote Dilution : Reapportionment and Gerrymandering Reynolds v. Sims Judicial Scrutiny of Political Gerrymanders Davis v. Bandemer Political Gerrymanders After Davis Fundamental Right of Access to Courts Economic Barriers and the Criminal Process Economic Barriers and Civil Litigation M.L.B. v. S.L.J No Fundamental Interest in Food, Shelter, Education San Antonio Independent School Dist. v. Rodriguez Chapter 10. Congress s Civil Rights Enforcement Powers Section 1. The Civil Rights Statutes of the Reconstruction Era Section 2. The Requirement of State Action Civil Rights Cases The Scope and Limits of State Action After the Civil Rights Cases Shelley v. Kraemer State Action After Shelley v. Kraemer Jackson v. Metropolitan Edison Co The State Action Doctrine After Jackson and Moose Lodge Section 3. Congressional Power to Reach Private Interference with Constitutional Rights United States v. Guest Criminal Sanctions for Private Interference with Fourteenth Amendment Rights Civil Sanctions for Private Interference with Fourteenth Amendment Rights Congressional Power to Reach Private Conduct Under the Thirteenth Amendment Jones v. Alfred H. Mayer Co Thirteenth Amendment Powers and the 1866 Civil Rights Act Section 4. Congressional Power to Enforce Civil Rights Under 5 of the 14th Amendment Congressional Protection of Voting Rights Katzenbach v. Morgan The Meaning and Aftermath of Katzenbach v. Morgan City of Boerne v. Flores The Meaning and Scope of Boerne Shelby County v. Holder The Voting Rights Act After Shelby County United States v. Morrison The Meaning and Scope of Morrison

8 xviii Chapter 11. Freedom of Speech Categories of Speech Degrees of Protected Expression Section 1. Free Speech: An Overview First Amendment History First Amendment Theory First Amendment Jurisprudence Section 2. Incitement to Violence or Subversion Schenck v. United States The Clear and Present Danger Test Abrams v. United States Alternatives to Clear and Present Danger Masses Publishing Co. v. Patten Comparing the Holmes and Hand Approaches Gitlow v. New York Whitney v. California Criminal Anarchy and Syndicalism Laws Dennis v. United States Clear and Present Danger After Dennis Brandenburg v. Ohio The Meaning and Implications of Brandenburg Section 3. Fighting Words and Hostile Audiences Fighting Words Chaplinsky v. New Hampshire Fighting Words Since Chaplinsky Hostile Audiences and the Heckler s Veto Early Hostile Audiences Cases Feiner v. New York Distinguishing Feiner in Later Cases Cohen v. California Offensive Speech Section 4. Injury to Reputation, Sensibility, Dignity, Equality Libel Beauharnais v. Illinois The Legacy of Beauharnais First Amendment Limits on Libel New York Times Co. v. Sullivan The Meaning and Implications of New York Times The Scope of New York Times Gertz v. Robert Welch, Inc Defamation of Private Parties After Gertz Privacy Torts Bartnicki v. Vopper Intentional Infliction of Emotional Distress Hustler Magazine v. Falwell Snyder v. Phelps Hate Speech Collin v. Smith R.A.V. v. City of St. Paul The Meaning and Implications of R.A.V

9 xix Virginia v. Black Section 5. Sexually Explicit Expression Obscenity Roth v. United States; Alberts v. California Obscenity Between Roth and Miller Miller v. California Paris Adult Theatre I v. Slaton Obscenity Law After Miller and Paris Sexually Explicit but Nonobscene Expression Regulating Pornography as Subordination of Women American Booksellers Ass n v. Hudnut Hudnut and the Social Harms of Pornography Nudity Bans Erznoznik v. Jacksonville Nudity Bans After Erznoznik Zoning Commercial Sexual Expression Young v. American Mini Theatres Renton v. Playtime Theatres, Inc City of Los Angeles v. Alameda Books, Inc Zoning Laws and Secondary Effects Child Pornography New York v. Ferber Child Pornography as Unprotected Speech Section 6. Speech in New Media Indecent and Sexual Speech in New Media FCC v. Pacifica Foundation The Limits of Pacifica Sable Communications, Inc. v. FCC Total Bans on Indecent Speech on Cable and Online Reno v. American Civil Liberties Union Online Regulations After Reno Ashcroft v. Free Speech Coalition Violent Speech in New Media United States v. Stevens Regulating Violent Speech in New Media After Stevens Brown v. Entertainment Merchants Ass n Section 7. Commercial Speech Virginia Pharmacy Board v. Virginia Citizens Consumer Council Commercial Speech and First Amendment Theory Commercial Speech After Virginia Pharmacy Central Hudson Gas v. Public Service Comm n Commercial Speech Regulation After Central Hudson Liquormart, Inc. v. Rhode Island Commercial Speech Regulation After Liquormart

10 xx Chapter 12. Freedom of Speech Modes of Regulation and Standards of Review Section 1. Content-Based and Content-Neutral Regulations The Distinction Between Content-Based and Content-Neutral Laws Reed v. Town of Gilbert Content-Neutral Regulation and Symbolic Conduct United States v. O Brien The Significance of O Brien Flag Desecration Texas v. Johnson Texas v. Johnson and Its Aftermath Holder v. Humanitarian Law Project The Implications of Humanitarian Law Project Nude Dancing Section 2. Government s Power to Limit Speech as Quasi-Private Actor Public Forums and Public Property Early Public Forum Cases The Time, Place, and Manner Test Public Order and Safety Aesthetics Members of City Council v. Taxpayers for Vincent Clark v. Community for Creative Non-Violence Tranquility, Privacy and Repose Invalid Time, Place, or Manner Regulation Speaker Access to Public Places Other than Traditional Public Forums Libraries, Jails and Schools Buses, Theaters, and Military Bases Public and Nonpublic Forums Religious Speech on Public Property Spheres of Government Control: Government as Educator, Employer, and Patron Student Speech in Public Schools Speech and Association by Public Employees and Contractors Public Employee Speech Connick v. Myers Pickering and Connick Compared Public Employee Political Party Affiliation Speech-Restrictive Conditions on Public Funds Agency for International Development v. Alliance for Open Society International, Inc Section 3. Overbreadth, Vagueness, and Prior Restraint Overbreadth Vagueness Prior Restraint Licensing

11 xxi Injunctions Near v. Minnesota ex rel. Olson Prior Restraint and National Security New York Times Co. v. United States [The Pentagon Papers Case] The Scope and Limits of Pentagon Papers Prior Restraint and Fair Trial Chapter 13. Beyond Speaking Compelled Speech, Association, Money, and the Media Section 1. Compelled Speech: The Right Not to Speak Compelled Individual Speech State Compelled Access to Private Forums Compelled Speech, Commercial Speech, and Economic Regulation Compelled Speech and Private Discrimination Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston [GLIB] Hurley s Reach Section 2. Freedom of Expressive Association Compelled Disclosure of Membership NAACP v. Alabama Compelled Disclosure in the Civil Rights Era Compelled Disclosure of Political Campaign Contributions Restrictions on Organizational Activity NAACP v. Button The Meaning and Implications of NAACP v. Button Denial of Government Benefits Because of Association Compelled Association: The Right Not to Associate Boy Scouts of America v. Dale Dale and Compelled Speech and Association Freedom of Association and Political Party Procedures Section 3. Money and Political Campaigns Buckley v. Valeo Buckley s Approach and Aftermath Parties, Corporations, PACs, Super PACs and Political Money Enactment of and Constitutional Challenges to BCRA McConnell v. Federal Election Commission Federal Election Comm n v. Wisconsin Right to Life McConnell Compared with WRTL Citizens United v. Federal Election Commission After Citizens United McCutcheon v. F.E.C Section 4. Journalism and Media Press Access to Government Information Governmental Demands for Information from the Press Branzburg v. Hayes Journalistic Privilege After Branzburg Laws Singling Out the Press

12 xxii Minneapolis Star & Tribune Co. v. Minnesota Comm r of Revenue The Implications and Limits of Minneapolis Star The First Amendment and the Broadcast Media Scarcity and Access The Information Age Chapter 14. The Religion Clauses: Free Exercise and Establishment Section 1. A History of the Religion Clauses Section 2. The Definition of Religion The Limits of Judicial Inquiry into Religious Belief Section 3. The Free Exercise of Religion Laws Discriminating Against Religion Church of the Lukumi Babalu Aye v. City of Hialeah Identifying Antireligious Purpose Religious Exemptions Sherbert v. Verner Limiting the Scope of Mandatory Religious Exemptions? Employment Division, Dept. of Human Resources v. Smith Smith and Religious Exemptions Constitutional Law by Statute: Legislative Reponses to Smith Section 4. The Establishment Clause Public Financial Aid to Religious Institutions Everson v. Board of Education Maintaining a Wall of Separation? Mueller v. Allen Religious Inclusion in Public Subsidies: Everson vs. Mueller Zelman v. Simmons-Harris The Meaning and Implications of Zelman Religion in Public Schools Prayer in Public Schools Lee v. Weisman Coercion vs. Endorsement Religion and the Public School Curriculum Edwards v. Aguillard Defining Religion vs. Science Public Displays of Religious Symbols Lynch v. Donnelly Applying the Endorsement Test McCreary County v. ACLU of Kentucky Van Orden v. Perry Section 5. Reconciling the Religion Clauses Values Reconciling the Religion Clauses Refusing to Grant Religious Exemptions Legislative Accommodation of Religion

13 xxiii Appendix. Table of Justices INDEX