Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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Chapter 1. Judicial Review and Its Limits 121 results (showing 5 best matches)
- A unanimous Supreme Court, per Justice Thomas, reversed on the ground that the pre-enforcement challenge to the Ohio false statement law was justiciable. The Court ruled that petitioners had alleged a sufficiently imminent injury on the basis of the three-part test for constitutional standing set forth in
- When a judicial decision cannot have any practical legal effect because the issues that generated it either have been resolved or
- The Court’s treatment of the causal relationship requirement in
- Under the Supremacy Clause of Art. VI, state judges are bound by the United States Constitution notwithstanding contrary state law. This has been read to confer upon state court judges the power of judicial review even over federal laws. The Art. III subject matter jurisdiction of the Supreme Court includes cases arising under the Constitution. Since the state court has decided the constitutional question originally, the Supreme Court has power to review the issue by way of appellate jurisdiction. Coupled with this argument based on the constitutional text, Story added a policy justification based on the need for uniformity in federal constitutional interpretation. The Constitution must not mean 50 different things in 50 different jurisdictions. This thesis was later echoed by Holmes when he argued that the Union would not be imperiled if the Court lost its power of judicial
- There is in fact no explicit textual authority for the doctrine of judicial review in the United States Constitution. While Art. III vests the “Judicial Power,” including cases arising under the Constitution, in the federal courts, it nowhere specifies that this judicial power includes the prerogative of invalidating the acts of a co-equal branch of government. Art. VI does establish that “this Constitution and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land,” and binds judges of state courts to apply federal law to “anything in the Constitution or Laws of any State to the contrary notwithstanding.” But does this language authorize the courts to determine when laws are in pursuance of the Constitution? It could be argued that the judgment that an action or law conforms to the Constitution already has been made by the popularly elected branches, the Congress and the President. In this view, the courts would be bound by the...
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Chapter 7. Freedom of Expression 281 results (showing 5 best matches)
- There is, however, another vitally important approach. In addition (or as an alternative) to challenging the validity of the application of the law to himself, the litigant may challenge the validity of the law itself by arguing that the law is facially unconstitutional in that it is vague and/or overbroad. A court decision in the plaintiff’s favor in such circumstances results in the invalidation of the law. Further, in overbreadth challenges the litigant is allowed to raise the rights of third parties not before the Court who could not be reached under a properly drawn law. This is so even though the litigant himself is not affected by the overbreadth and could be validly regulated by a statute that was not overbroad. Because of concern about the chilling effect of overbroad laws on protected constitutional expression, an exception is made to the third party standing rule.
- In most First Amendment litigation, the constitutional challenge is directed at the validity of the law “as applied” to the particular litigant. Under this “as applied” approach, a judicial determination of unconstitutionality does not render the law itself invalid but only renders void the particular application of the law. The law must be unconstitutional as applied to the plaintiff.
- The doctrine of overbreadth is concerned with the precision of a law. A law may be facially clear but may sweep too broadly if it indiscriminately reaches both protected and unprotected expression. For example, a law that prohibits three or more persons from congregating on a street corner and engaging in activity that is “annoying” to passers-by is both vague and overbroad.
- Although the Court has gone so far as to hold that there is no constitutional bar to the inclusion of substantive obscenity offenses under a state criminal RICO law,
- Is the constitutional protection afforded the media limited only to publication or does the Constitution also provide protection to the process of gathering the news? In
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Chapter 5. Due Process of Law 159 results (showing 5 best matches)
- The constitutional protection afforded personal decisions involving abortion, contraception, marriage and family life indicates the general principle that laws significantly burdening fundamental personal rights are subjected to stricter judicial scrutiny. This principle will be reflected again in subsequent sections of this Nutshell dealing with First Amendment freedoms made applicable to the states through the Due Process Clause of the Fourteenth Amendment. This fundamental rights principle is also used to protect both rights that may be fairly implied from the constitutional text as well as rights that are judicially created,
- A significant body of abortion case law has addressed the constitutional issues raised by the privacy rights of minors. While the Court has consistently recognized that “[m]inors as well as adults are protected by the Constitution and possess constitutional rights,” it has also established that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”
- The second principle flowing from the Court’s case law relates to the reason the right to marry is a fundamental right.
- has not resolved all of the constitutional law questions which laws disadvantaging gay people present. For example, the question of the standard of review which should be applied to such legislation is still unsettled. However, there is no question that
- The basis for the departure from the rationality standard of review when fundamental personal rights are burdened is difficult to ascertain. If a law burdens an express constitutional right, perhaps more active review is understandable even though the right applies to state action only through its incorporation as part of Fourteenth Amendment liberty. But if the right is only judicially implied from the express rights, or is cut whole cloth through judicial use of extra-constitutional sources, what considerations justify judicial activism? In short, if
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Chapter 10. Congressional Legislation in Aid of Civil Rights and Liberties 32 results (showing 5 best matches)
- , upheld an 1866 federal law which was read to prohibit even private discrimination in the sale or rental of real and personal property. In addressing the issue of Congress’ constitutional power, Justice Stewart, for the Court, held that the enabling clause of the Thirteenth Amendment “clothed ‘Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.’ ” Since Congress could rationally conclude that the burden and disabilities of slavery include restraints upon the essence of civil freedom,
- But this seemingly absolute prohibition against congressional use of Sec. 5 of the Fourteenth Amendment to reach private conduct was at least brought into question in
- rejected an expansive view of Congressional Sec. 5 powers based on
- The Court’s recent aversion to abrogation of state immunity to suit even with respect to Congressional legislation based on Sec. 5 has some significant exceptions. For example, Congress in the Family Medical and Leave Act authorized eligible employees, including state employees, to take up to twelve weeks of unpaid leave on grounds such as taking care of an employee’s spouse. This benefit extended to men as well as women. The Act gave state employees the right to recover damages if a state failed to comply with the Act’s provisions. Did
- Like the other Civil War amendments, Sec. 2 of the Fifteenth Amendment gives Congress the power to enforce the guarantees of the article by appropriate legislation. In interpreting this grant of power, the Court again has applied the mandate of
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Chapter 4. Congress and the Executive Power 63 results (showing 5 best matches)
- While there is no provision in the Constitution establishing an executive privilege to withhold information from a judicial forum, a unanimous Supreme Court in
- Art. I vests the powers of the purse in Congress. Nevertheless, presidents have regularly claimed the prerogative of impoundment,
- When does the President have the power to remove Executive Branch officials? In the past, the answer to this question turned on whether an official was categorized as a “purely executive official”—in which case the President’s power of removal was seen as “incident to the power of appointment.”
- The Line Item Veto Act provided still another terrain for the battle between formalism and functionalism. The Line Item Veto Act gave the President the power to “cancel in whole” three categories of provisions in statutes that had been signed into law—“(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit.”
- The checks and balances which characterize the tripartite nature of American government are illustrated in the constitutional provisions for appointment and removal of government officers. The strength of these provisions is in the limits they place on absolute power in any one Branch by dividing authority between Branches; the difficulty with them is in their silence on crucial questions. Congress may not vest the Appointment Power in persons other than those indicated in Art. II, Sec. 2, cl. 2 which provides: “[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law, but the Congress may by law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads...
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Title Page 5 results
Chapter 8. Freedom of Religion 71 results (showing 5 best matches)
- In attempting to define standards for determining what accommodation to religion is required by the Free Exercise Clause, the Court has sometimes distinguished between direct and indirect burdens on religion. Direct burdens,
- However, benefits can be denied if denial is the incidental effect of a generally applicable and otherwise valid criminal law. Strict scrutiny would not be used in such circumstances. Where the general criminal law has the consequence of prohibiting a religious practice, imposing the lesser burden of denying of unemployment compensation benefits to persons violating the criminal law is constitutional.
- With the rejection of school prayer, there has been increasing interest in moments of silent prayer or quiet meditation.
- But while both components are part of our constitutional freedom of religion, the clauses often appear to conflict. Exemption from generally applicable laws when such laws burden a particular religion may serve the interests of religious freedom, but such exemptions can be perceived as government support for religion violative of the Establishment Clause. The proscription against religious establishment may bar government support for religion and religious institutions, but denial of public benefits and services (especially given the important role played by government in our lives), may impose hardships on religion presenting free exercise problems. A continuing problem is how to reconcile these potentially-
- A New York state law creating a state school district coterminous with a village populated by Satmar Hasidim, an Orthodox Jewish sect, violated the Establishment Clause since it allocated political power on the basis of a religious criterion. The separate public school district was set up just to run a special education program for handicapped children. The other village children went to
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Chapter 9. State Action 26 results (showing 5 best matches)
- With the exception of the Thirteenth Amendment, the guarantees of the Constitution run only against the national and state governments. Absent congressional legislation extending these rights to private conduct, “state action” is required. In part, this demand for governmental involvement to make the constitutional protections work is a matter of constitutional language,
- Had Justice Harlan’s approach to the meaning of the Civil War Amendments been accepted, much of the confused history of the state action doctrine might have been avoided. Similarly, if the Court had been willing to accept the argument that state failure to protect the Thirteenth or Fourteenth Amendments was itself a wrong (
- But when government actively “significantly encourages” private racial discrimination, the Court has, at least in the past, found the requisite state action. In the sit-in cases of the 1960s, actions by city officials instigating private restaurant owners to refuse service to Blacks made the state responsible for the discrimination.
- The Court in the
- was a narrow crack in the formidable wall to constitutional litigation created by the modern state action doctrine.
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Chapter 6. Equal Protection 171 results (showing 5 best matches)
- raised questions about whether affirmative action programs in the public educational arena could meet the strict standard of review. In
- A highly confused area of equal protection law involves the treatment of economic obstacles such as fee requirements limiting access to criminal and civil justice. The primary source of confusion is the proper role of equal protection and procedural due process analysis. In
- The fundamental rights strand of equal protection law fashioned by the Warren Court appeared to offer an alternative to substantive due process and its taint of “Lochnerism.” Indeed, it was sometimes called “Substantive Equal Protection.” Further, the developing case law suggested that the states might be under an affirmative constitutional duty to equalize access to important government benefits and services such as welfare, education, housing and medical care. Perhaps the Equal Protection Clause could be a vehicle for attacking economic inequalities in the society.
- The clearest example of fundamental rights equal protection law arises when a law discriminates in the right to engage in protected constitutional activity. For example, when a classification significantly burdens the exercise of express First Amendment rights, traditional rationality review is inappropriate. If a law bars all picketing of schools [
- In this case, the federal government targets a state-defined class which New York sought to advantage to do the opposite,
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Introduction Constitutional Principles 5 results
- Preservation of liberty in the American constitutional scheme is, however, not entirely dependent on the allocation of governmental powers. Limited government finds expression in the specification of rights and liberties for the
- Constitutional law texts are generally divided into two parts. The first part is devoted to a study of the allocation of powers. This entails two basic principles of American constitutionalism—separation of powers and division of powers.
- Checks and balances are not limited to the national arena. The principle finds expression in the division of powers between the national and state governments. Federalism embodies an effort to
- Separation of powers discusses the interaction among the three constituent elements of the national government. Thus, Art. I of the Constitution is devoted to the powers of the legislative arm of the federal government, the Congress. Art. II sets forth the powers of the Executive and Art. III delineates and circumscribes the jurisdiction of the federal courts. But while these powers are institutionally separated, their exercise often overlaps. Thus, there emerges the need for recognition of another vital feature of American constitutional law, the principle of checks and balances. Although Congress can legislate, the President can veto. Similarly, while the President makes treaties, the Senate must give its advice and consent to make them effective. While the federal courts exercise a power of judicial review, it is the Congress which endows those courts with such jurisdiction as it chooses within the given parameters of Art. III.
- From these principles is derived still another foundation of American constitutionalism, the concept of limited government. Government must be afforded the means to operate efficiently and yet its powers must be sufficiently demarcated in order to preserve individual liberty. It is a basic tenet of Madisonian democracy that concentration of power poses a threat to individual autonomy and freedom. Therefore, to the eighteenth century mind, the mind at least of Jefferson and Madison, the objectives of federalism and separation of powers served the cause of liberty. Both limit and diffuse governmental power. Indeed, in the American system, the totality of power is denied to either the national or the state governments or to any component part of our federalism. In the demarcation of national power, the Executive, the Congress, and the federal judiciary are alike denied national absolute power.
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Chapter 3. State Power in American Federalism 62 results (showing 5 best matches)
- In constitutional law particularly, the same fact pattern may be approached under a number of overlapping constitutional alternatives. Thus, facts that could be resolved through a Commerce Clause analysis may be equally responsive to resolution under the Interstate Privileges and Immunities Clause of Art. IV, Sec. 2. Unfortunately, there is no particular Geiger counter which can predict when the courts will use one clause rather than the other or, possibly, use both clauses.
- States have broad police powers to legislate for the health, morals, and well-being of their citizens. But, like the national government, state action is subject to constitutional limitations arising either from specific guarantees or from the constitutional division of powers between the federal and state governments. It is with the working out of the parameters of “Our Federalism” that the present chapter is concerned. Some constitutional powers are exclusively national in character; they do not admit of concurrent exercise by both the federal and state governments. For example, the war power and the power over foreign affairs are vested in the national government to the point that state regulation in the same area is essentially precluded. Other powers such as the power to raise revenues through taxation and the spending power are concurrent powers. An issue that often arises in federal-state constitutional conflicts is the extent of the power of the states. Do the states have...
- A clash between the Twenty-first Amendment and the Dormant Commerce Clause was the occasion once again for the Court to strike down state laws which “by their own terms” discriminate against interstate commerce. Laws in Michigan and New York permitted in-state wineries to sell directly to their own residents but prohibited or severely restricted direct sales by out-state wineries. The out-of-state wineries contended that the challenged legislation was discriminatory in that its purpose was to “grant in-state wineries a competitive advantage over wineries located beyond the State’s borders.” Michigan and New York responded that the Twenty-first Amendment authorized the states to discriminate against out-of-state alcoholic products. The Court, 5–4, held that the challenged Michigan and New York laws violated the Dormant Commerce Clause. The Court rejected the Twenty-first Amendment defense of the states:”[S]tate laws that violate other provisions of the Constitution are not saved by...
- Even if a statute is facially non-discriminatory and is designed to serve a legitimate social welfare objective, the law still may be discriminatory in its impact on interstate commerce. In
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PART 2 11 results (showing 5 best matches)
- In dissent, Justice Stevens, joined by Justices Souter, Ginsburg and Breyer, said the issue was not whether the Second Amendment affords a collective right as opposed to an individual right. The right surely can be enforced by individuals. The question was the scope of the right. The precise issue presented is whether the Second Amendment protects the possession and use of guns “for nonmilitary purposes like hunting and personal self-defense.” Like the Court, Justice Stevens used originalist methodology. But, unlike Justice Scalia, Justice Stevens focused on the intent of the
- Limited government in the United States is achieved not only through the constitutional allocation of powers but also through the recognition of rights and liberties. The original Constitution contained few such specific guarantees. Art. I, Secs. 9 & 10, prohibit Congress and the states respectively from enacting bills of attainder,
- Although the Court made it very clear that the Second Amendment protected a personal right to
- Justice Scalia used an originalist methodology based on popular understanding at the time. The language of the Second Amendment provides a basis in the text both for those who favor gun control and for those who do not. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” The Court declared that the prefatory clause of the Second Amendment did not qualify an individual’s right to keep and bear arms. In fact, the prefatory clause was entirely compatible with an individual right to keep and bear arms. The way tyrants had eliminated a militia in the past was “not by banning the militia but by simply taking away the people’s arms.” The constitutional debate over the right to keep and bear arms was not whether that right existed but whether it should be explicitly stated in the Constitution. The Court concluded that on “the basis of both text and history” the Second...
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Foreword to the Ninth Edition 9 results (showing 5 best matches)
- Highlighting all the new constitutional law cases in this edition in this Foreword is not possible. But suffice it to say, there are many decisions in this edition not mentioned here. The focus in discussing the cases in this edition, as in its predecessors, is on the majority opinions. Dissents and concurrences are usually mentioned only when they particularly illuminate the issues at stake or where they indicate a path to the future. Overall, the goal is to give the reader the essence of the cases. Finally, my sincere thanks to Pamela Chamberlain for her invaluable and excellent secretarial assistance.
- A significant decision in the area of “a woman’s right to decide to have an abortion” is
- As in previous editions, a constant problem has been how to reconcile the tension between a desire to focus on the Supreme Court’s new cases and yet not do so at the expense of the older case law. I have tried to resolve this issue by focusing on the new without sacrificing too much of the old. This edition contains many important new decisions. Some of them as always are in the First Amendment area. Among the new First Amendment cases is
- In this edition, unlike the previous eight editions, I did not have the privilege of working with Tom Dienes my long-time co-author, friend and colleague. Tom Dienes died in the spring of 2013. Working with Tom was a joy. I am grateful for his contribution to our books and to my life. This edition also marks a significant loss on the Supreme Court. One of the Court’s most famous and articulate Justices, Antonin Scalia, died in February 2016. As of this writing, his seat on the Court has not been filled.
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Chapter 2. National Legislative Powers 70 results (showing 5 best matches)
- Marshall himself provided a broad interpretive guide to federal legislative power in
- The function of the Court, reasoned Stone, was not to probe the purpose or motive of Congress in regulating interstate commerce since these are “matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no
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The Constitution of the United States 98 results (showing 5 best matches)
- In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
- No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
- No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from...
- Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be
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Table of Cases 19 results (showing 5 best matches)
Outline 39 results (showing 5 best matches)
West Academic Publishing’s Law School Advisory Board 11 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Robert A. Sullivan Professor of Law Emeritus,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Yale Law School
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- Publication Date: December 9th, 2016
- ISBN: 9781634596237
- Subject: Constitutional Law
- Series: Nutshells
- Type: Overviews
- Description: This 9th edition of Constitutional Law in a Nutshell summarizes constitutional law from Marbury v. Madison (1803) to the present. This edition features some new and controversial cases. A new and famous example is Obergefell v. Hodges (2015) which held, per Justice Kennedy, 5-4, that under both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment “same sex couples may exercise the fundamental right to marry in all States.” In Fisher v. University of Texas (2016) the Court held, 4-3, per Justice Kennedy, that the much litigated, race-conscious admissions program of the University of Texas was valid under the Equal Protection Clause. In the area of “a woman’s right to decide to have an abortion,” the Court in Whole Women’s Health v. Hellerstedt (2016) upheld, 5-2, the use of rigorous undue burden standard as the measure of the abortion right. The Court ruled that two provisions of a Texas law targeting the state’s abortion clinics were unconstitutional under the Fourteenth Amendment. The First Amendment, as always, continues to generate new and important decisions. Thus, Reed v. Gilbert (2015) held that a town sign ordinance violated the First Amendment. The court indicated that any speech regulation directed to a specific subject matter should be evaluated under the strict scrutiny standard. The decision leaves open a question as to whether this ruling is intended to be applied to previously less protected categories of expression. This edition, of course, contains numerous other important decisions. The objective is to summarize the essence of the Court decisions and to do so in a concise and understandable way.