United States Constitutional Law
Authors:
Farber, Daniel / Siegel, Neil S.
Edition:
1st
Copyright Date:
2019
21 chapters
have results for constitutional law
Chapter 1 Introduction 1 46 results (showing 5 best matches)
- We also intend the book to be useful for students enrolled in undergraduate or graduate courses in U.S. constitutional law or constitutional politics—classes taught by one of the authors in addition to law school courses. The book will provide some insight into how political scientists and historians view the development of constitutional law, while giving students enough knowledge of legal doctrine to make constitutional litigation intelligible.
- An alternative approach to introducing the field of constitutional law, and one that predominates among political scientists and law professors who study the political determinants of judicial decisionmaking, is to focus on constitutional politics instead of constitutional law. Constitutional politics can be thought of as the beliefs about the Constitution of non-judicial actors such as politicians, political elites, social movements, interest groups, and the media. Experts who emphasize the importance of constitutional politics believe that Supreme Court doctrine the constitutional commitments and ideas circulating outside the courts far more often than the doctrine
- U.S. constitutional law is also an intellectually exciting and dynamic field of study. It combines the analytical rigor of the best legal reasoning with the theoretical, historical, political, and cultural insights of scholarship in a number of academic disciplines. Constitutional law is the basic course in the law school curriculum that is most closely tied to changes in national politics. As Americans continue to work out how they define their community and what they owe one another, their resolutions of these issues affect, and are affected by, the legal doctrine that is developed by the U.S. Supreme Court. This book offers law students, political science students, scholars, teachers, and engaged citizens an accessible introduction to the concepts and insights that are most central to the field of U.S. constitutional law.
- In addition, and central to our purposes, the book should provide “usable knowledge” to students enrolled in a law school course on constitutional law. Again, our goal is not to cover all doctrines in exhaustive detail. Instead, we aim to provide a deeper understanding of key issues and to help students learn how to make convincing arguments in both the law school setting and practice. A good constitutional lawyer knows more than just the doctrinal takeaways. And the same is true of successful law students.
- Constitutional doctrine has become increasingly complex. Law school casebooks on the subject have been known to exceed 2000 pages. This makes it difficult even for law students to understand the forest for the trees. One of our main goals in this book is to explain the general themes and the most critical doctrines. Subsidiary nuances can more easily be understood once the overall pattern is clear. Similarly, the historical and political science literatures about constitutional law have become vast and complex. We would not purport to cover all the nuances and areas of controversy, but it is impossible to truly grasp constitutional controversies without understanding how institutions, political parties, and social movements, not just doctrinal logic, have shaped legal outcomes.
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Chapter 10 “The Equal Protection of the Laws”: Race and Gender 279 141 results (showing 5 best matches)
- Although the constitutional politics and law of slavery are long gone, this pre-Civil War history matters for numerous reasons. We will briefly discuss three of them. First, it is hard to identify an issue that is more central to American constitutionalism than chattel slavery. Without some appreciation of the institution and how it was utterly embedded into the governing doctrines of constitutional law—without some encouragement to think of what, exactly, “slavery” was—Americans are likely to fall short in thinking about what might be required, permitted, or prohibited to overcome it, both within constitutional politics and within constitutional law.
- In this chapter, we turn to issues of constitutional equality. In the United States, equality questions have long been debated in both constitutional politics and constitutional law primarily through claims on the Equal Protection Clause of Section 1 of the Fourteenth Amendment. It provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
- We move now from developments in constitutional law during the late 1960s to pivotal developments in the Court’s treatment of race cases during the mid-to-late-1970s. The potential conflict between anti-classification and anti-subordination perspectives first emerged in constitutional debates over the following question: when is
- We have focused in this chapter on race, ethnicity, national origin, and gender because of the historical and contemporary significance of these forms of discrimination and subordination in American constitutional politics and constitutional law. We have also focused on them because they are relevant to more recent social movements for constitutional equality. For example, the gay rights movement, which we discuss in Chapter 12, has drawn inspiration—and legal arguments—from the civil rights and women’s movements.
- We should, however, briefly mention two other categories of laws to which the Court has applied heightened scrutiny. The first involves laws discriminating against noncitizens. Constitutional law here is rather complex. State laws that discriminate against noncitizens lawfully in the United States are subject to strict scrutiny.
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Chapter 2 The Role (and Regulation) of the Courts 17 59 results (showing 5 best matches)
- This chapter first discusses that critical legal development by focusing on the constitutional politics and constitutional law of the most famous judicial decision in all of American constitutional law. No decision better illustrates the reality that constitutional law not only disciplines constitutional politics, but also is shaped by constitutional politics. As we will see, Chief Justice John Marshall justified judicial review by positing a sharp distinction between constitutional law and politics in a case in which this very distinction was significantly undermined by Marshall’s own debatable and politically motivated reasoning. After discussing the courts’ power of judicial review, this chapter next considers how Congress, the President, and the citizenry can turn the tables and exercise their own considerable authority to structure and sometimes limit judicial authority.
- Judicial review involves the power of courts to regulate the political branches. The next part of this chapter details some of the ways in which the political branches, as well as the citizenry, have the power to regulate the federal courts. Such regulation helps enables constitutional politics to influence the course of judge-made constitutional law.
- For example, Professors Jack Balkin and Sanford Levinson have articulated a descriptive theory of “partisan entrenchment” to explain routine, gradual changes in constitutional law that they believe are characteristic of how the American constitutional system functions. According to their theory, the President’s power to nominate Justices and other federal judges means that the party controlling the White House can, if it chooses, appoint federal judges with roughly similar ideological orientations on issues of greatest significance to the party (subject to a potential check from the Senate). Over time, this process can produce substantial changes in constitutional law. The theory of partisan entrenchment helps explain why political parties, engaged citizens, social movements, and advocacy groups care profoundly about which President of which party gets to decide who sits on the federal courts, especially the Supreme Court. They all care because the future of constitutional law in...
- Although jurisdiction stripping is extremely rare, the issue is profoundly important. The greater is Congress’s authority in this area, the greater is its ability to wrestle control from the Supreme Court over the substantive content of constitutional law. Moreover, given that there are relatively few cases each year that the Supreme Court can accept for review, the greater the extent to which Congress withdraws lower federal court jurisdiction, the more acute becomes the question of whether state courts can be trusted to effectively have the final word on important questions of federal constitutional law.
- Turning from the constitutional structure to the constitutional text, Marshall observed that Article III gives the federal judiciary jurisdiction to hear “Cases . . . arising under this Constitution.” Marshall rhetorically asked why the Constitution would give the federal courts such jurisdiction if they were not supposed to examine the consistency of a law with the Constitution. It turns out, however, that a grant of jurisdiction does not invariably imply authority to interpret the law in a case. For example, federal courts exercising diversity jurisdiction almost always defer to state-court interpretations of state law even when federal courts disagree with these interpretations.
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Chapter 13 Where Structure Meet Rights: The Reconstruction Powers 427 51 results (showing 5 best matches)
- Our goal here and throughout the book has been to show how constitutional law is neither entirely autonomous of political forces nor simply a passive reflection of them. We hope the result has been to clearly present the key concepts and insights that illuminate constitutional doctrine while placing the doctrine within its broader historical and theoretical context. We do not know what the Constitution’s third century will bring in the way of doctrinal change, but we are confident that this interaction between constitutional law and constitutional politics will continue.
- As we have seen throughout this book, constitutional law involves an interactive process involving both the Supreme Court and societal actors who make claims on the Constitution within constitutional politics. So, too, in , drew from a perspective on constitutional law that was greatly enhanced by a series of presidential elections and Supreme Court appointments. In turn, the Court’s decision will help shape the political process in the future.
- As noted above, between 1875 and 1964, Congress passed no major civil rights statutes. Beginning in the 1960s, however, Congress finally got in the game by passing a number of immensely significant pieces of civil rights legislation, including the Civil Rights Act of 1964 and the Voting Rights Act of 1965. These new federal laws were challenged on constitutional grounds, and so the Supreme Court decided several important cases regarding the scope of Congress’s powers under the Thirteenth, Fourteenth, and Fifteenth Amendments. There are a number of cases, and the legal questions they raise are varied and difficult. Law school courses on civil rights, voting rights, and election law cover the cases in depth. We will focus on one such case commonly covered in Constitutional Law courses—
- Justice Antonin Scalia’s opinion for the Court in this case had significantly changed the law of the Free Exercise Clause by holding that neutral laws of general applicability trigger only deferential, rational basis review. Recall that, under rational basis review, the challenger bears the near-impossible burden of showing that the law in question is not rationally related to a conceivable, legitimate governmental interest. A neutral law does not intentionally target a religious group or practice. A generally applicable law is one that applies broadly, not just to religious groups. An example of a neutral law of general applicability is a law banning animal cruelty that was passed out of concern about cruelty to animals. An example of a non-neutral law is a law banning animal cruelty that was passed out of hostility to the ritual animal sacrifices of a particular religious sect. ...neutral laws trigger strict scrutiny under the Free Exercise Clause, which is the most demanding...
- ; there was clear state action in the city’s denial of a permit to the church because of the city’s neutral and generally applicable law providing for historic preservation. Writing for the Court, Justice Anthony Kennedy instead reasoned that Congress, when acting under Section 5, may not create new constitutional rights or expand the scope of such rights. Rather, he insisted, Congress may only prevent or remedy violations of constitutional rights that have been recognized by the Court, and the statutory remedies that Congress provides must be “congruent and proportional”—that is, properly tailored—to the judicially enforced constitutional right at issue. Here is the key language from the majority opinion, which we seek to clarify using brackets:
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Chapter 3 Implementing Judicial Review 43 82 results (showing 5 best matches)
- Many of the arguments for evolutionary constitutionalism are simply the flipside of the arguments against originalism. But evolutionary theories also rest on an argument that many political scientists embrace. Looking back over constitutional history, as we will do in the remainder of this book, it is plain that constitutional law has evolved over time in dramatic ways to reflect the changes in the larger society—and these changes in constitutional law have occurred largely outside the amendment process specified in Article V, which is the pathway of constitutional change emphasized by originalists. If constitutional evolution is inevitable anyway, it may be more important to think about how to do evolutionary constitutionalism better, rather than simply decrying it.
- David Strauss’s theory of common law constitutionalism analogizes constitutional law to such common law subjects as contract law and property law. As non-lawyers may be surprised to learn, even today the legal rules governing contracts and property are often the outcome of decades of judicial precedent rather than legislative enactments. Strauss argues that, despite the significance accorded the written Constitution, in reality the most important parts of constitutional law are the outcome of two centuries of judicial rulings rather than of the text itself, let alone its original meaning.
- We have primarily focused on constitutional theories that set up distinguishable approaches. But there are also theories that tend to bridge (or, some would say, paper over) the gaps between these approaches. Some theorists favor eclectic approaches that take into account all considerations—text, structure, pre-ratification and post-ratification history, precedent, historical practice, publicly held values, and practical effects. Dialogic theories see the Court as playing an important role in constitutional decisions, but as participating in a dialogue with other institutions and the public rather than as issuing the final word. As explained in Chapter 1, this book offers an interactive account of the relationship between constitutional politics and judge-made constitutional law.
- But not every super-majoritarian consensus results in a constitutional amendment, in part because the Court may hasten to adopt such widespread views, making an amendment unnecessary. Perhaps it could be argued that not just constitutional amendments, but other types of uncommonly significant political events as well, should be considered to have modified the constitutional order. Professor Bruce Ackerman has expanded upon this idea and has sought to give it a formal grounding. Ackerman initially suggested that there have been three big “Constitutional Moments”—the Founding, Reconstruction, and the New Deal—each of which resulted in a dramatic expansion in the role of the federal government and shifts in constitutional doctrine. Ackerman saw a similar process ...: a political crisis, followed by an intense period of political debate over constitutional issues, followed by a strong popular electoral ratification of a new order of governance. Note how this theory sidesteps Article...
- In broad terms, originalism holds that constitutional interpretation should be based solely on the meaning of a textual provision when it was adopted; thus, the primary task of judges and other interpreters is historical inquiry. First-generation originalists, and some still today, think that constitutional interpretations should be based on the original intentions of Framers such as James Madison or of the delegates at the state ratifying conventions (since ratification is what made the Constitution governing law). Most originalists today (called second-generation originalists) focus on how a reasonable reader at the time of ratification would have understood the language of the text; this is called the original semantic meaning of a constitutional provision. What all originalists share is the belief that the meaning of a constitutional provision is fixed the instant it is adopted, with no room for further evolution as long as the originalist inquiry yields decisive answers to...
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Preface v 5 results
- Second, by carefully documenting the interaction between judge-made constitutional law and constitutional politics in almost every area of constitutional law that is covered in the basic course in law school, we sought to make an intellectual contribution of our own. We wanted to document not just “dialogue” between the Constitution inside and outside the courts, but also the extent to which each is shaped by the other. In addition, we wished to offer theoretical ideas, historical examples, and citations to various literatures that scholars and instructors in law and political science might benefit from consulting as they pursue their own research and teaching. Among many other things, readers will find discussions within these pages of the main theories of constitutional interpretation; collective action federalism and more formalist approaches to constitutional federalism; the debate over the theory of the unitary executive; the benefits and costs of abandoning robust judicial...
- We approached this project with two goals in mind. First and foremost, for the benefit of students in law and political science and interested members of the public, we wanted to provide a clear, accessible, balanced, and intellectually sophisticated introduction to the field of U.S. constitutional law. In our view, providing such an introduction requires close attention to the ideas about the Constitution that circulate in constitutional politics—especially within social movements, political parties, and governmental institutions.
- Dan Farber thanks the co-authors in previous writings about constitutional law from whom he has learned so much: Bill Eskridge, the late Phil Frickey, John Nowak, Jane Schacter, and Suzanna Sherry. And he also thanks Dianne Farber for her patience during an intense writing process.
- Neil Siegel thanks the many law students, undergraduates, and judges he has had the privilege of teaching—and learning from—over the past fifteen years. He also recognizes the strong support of Kate Bartlett and David Levi, his Deans at Duke Law School. He is indebted as well to his co-authors over the years—especially Curt Bradley, Bob Cooter, and Reva Siegel—whose work with him is partially reflected in these pages. Most of all, he is grateful to his spouse and daughters—Maria, Sydney, and Dylan—for their love, enthusiasm, and encouragement while he worked on this book.
- We are satisfied that this first edition makes substantial progress in achieving these two goals. In future editions, we plan to fix any mistakes and omissions, as well as to refine and extend our analyses. We therefore encourage all readers—whether students, professors, or citizens—to contact us if they have corrections, criticisms, or comments they wish to share. Dan Farber can be reached at dfarber@berkeley.edu. Neil Siegel can be reached at siegel@law.duke.edu.
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Chapter 4 Defining the Nature of the Union : The Federal Structure and the Necessary and Proper Clause 79 59 results (showing 5 best matches)
- This chapter introduces the constitutional politics and constitutional law of the Necessary and Proper Clause. We begin by discussing the general problems of governance in the United States during the 1780s that eventually resulted in the movement from the Articles of Confederation, the young nation’s first constitutional arrangement, to the Constitution, including its Necessary and Proper Clause. We then tell the story of the constitutional debate over the scope of federal power to create a national bank, which persisted outside and inside the courts for most of the Constitution’s first half-century. The Marshall Court’s historic 1819 decision in We close by examining the constitutional politics and law of the Necessary and Proper Clause today, including part of the Supreme Court’s 2012 decision in the
- In interpreting this clause, courts and political actors such as Hamilton and Jefferson have also found it necessary to address fundamental issues about national sovereignty, methods of constitutional interpretation, and the scope of federal power. In particular, as we will see, Chief Justice Marshall used the dispute of as the occasion for cementing some fundamental principles of constitutional law.
- powers. This means that, in order to act, the federal government requires a source of authority in the Constitution (or, more colloquially, a constitutional “hook”) that permits the action. State governments, by contrast, do not require permission from the Constitution in order to act. State governments need only respect independent limits on their authority that are set forth in the Constitution, most notably individual rights protections and the supremacy of valid federal laws over conflicting state laws. This distinction between state governments of general powers and a national government of enumerated powers is reflected in various places in the constitutional text: the opening line of Article I,
- : The Constitutional Politics and Law of the Bank
- Constitutional Law Stories
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Chapter 5 Interstate Commerce Clause 107 110 results (showing 5 best matches)
- The current constitutional law of the Commerce Clause dates to the 1990s. To understand contemporary doctrine, it is illuminating to begin with what preceded it: significant changes in constitutional politics during the 1980s.
- The second question presented was one of “preemption.” Preemption is the constitutional principle, grounded in the Supremacy Clause of Article VI, that constitutionally valid federal laws trump conflicting state laws. Preemption analysis requires a court to examine: (i) whether federal law conflicts with state law, a question of statutory interpretation; and, if so, (ii) whether the federal law is valid, a question of constitutional interpretation. Given how , there was a clear conflict between federal law and state law; the federal license conflicted with the state-granted monopoly.
- With a new “federalist” majority consisting of Rehnquist, O’Connor, Scalia, Kennedy, and Thomas, the Court shifted back to a view of federalism as imposing judicially enforceable constitutional limits on congressional power. As we will now discuss, the Court narrowed the scope of the Commerce Clause somewhat, and it articulated a structural principle of federalism (symbolized by the Tenth Amendment) to further limit federal commerce power to some extent. Yet, much of the liberal legislation from the New Deal through the 1970s remained fundamentally untouched by this counter-reaction, a reflection of how much it had become part of the fabric of society. Once again, one can see how the American constitutional system typically works—how changes in constitutional politics produce, as well as resist, changes in constitutional law.
- The second question under preemption analysis was therefore teed up: was the federal law that created the federal license constitutionally valid? Because no constitutional rights were at stake and no other enumerated power was available to Congress, the answer to this question turned on whether the federal law was within the scope of the Commerce Clause.
- The Democrats completely controlled the federal government between 1932 and 1948, and they sought to transform constitutional doctrine through the appointments process (and not to accomplish other goals, such as rewarding loyal supporters). As a result, they were able to fill the courts with judges who supported the New Deal. These judges believed in broad federal power, and they changed constitutional law to reflect their beliefs. This is an example of Professor Jack Balkin and Sanford Levinson’s theory of “partisan entrenchment,” according to which the party that controls the White House (subject to a potential check from the Senate) can appoint new judges who share roughly similar views on questions of importance to the party. Over time, this process can generate significant changes in constitutional doctrine.
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Chapter 7 Presidential Power 183 95 results (showing 5 best matches)
- as a barrier to jurisdiction. As a result of the rather circumspect judicial role, there is often no referee available to arbitrate disputes over the division of power between the President and Congress. Advocates on both side have, over the course of two centuries, evolved their own batteries of arguments based on the constitutional text and structure, evidence of the original understanding, whatever caselaw does exist, and historical practice, sometimes augmented by arguments about likely consequences. It is noteworthy, however, that both sides do feel compelled to make constitutional arguments rather than just relying on policy arguments or party loyalty. In this arena, constitutional politics plays a larger role than constitutional law, if by constitutional law we mean rulings by the courts.
- He then turned to the potential sources of constitutional authorization for the seizure. Justice Black dismissed the argument that the seizure was an exercise of the President’s power as commander-in-chief: “we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation’s lawmakers, not for its military authorities.” Similarly, he was unwilling to rely on the President’s executive power as a source of authority. “In the framework of the Constitution,” he said, “the President’s power to see that the laws are faithfully executed refutes the idea that he is to be Rather, Congress has the law-making power, and the Constitution “did not subject this law-making power of Congress to presidential or military supervision or control.” ...has not thereby lost its exclusive constitutional...
- Taken at face value, the Court’s position that as a matter of constitutional law the President is absolutely immune should mean that he is immune not only from damages actions but also from suits for injunctive relief, criminal prosecutions and, indeed, from any kind of judicial process. But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress or by the States for that matter. Nor would such a claim be credible.
- illustrates the unitary executive theory, which holds that the President has inherent constitutional power to appoint any officer charged with executing the laws, to remove such officers at will, and to direct their decisions. In a nutshell, under this theory, every other executive officer is simply an alter ego of the President. This theory has been championed by conservatives like Justice Scalia in recent years, and not surprisingly has also found favor with Presidents of all political orientations. The theory can be seen as relying on three major arguments: the constitutional text, the original understanding, and subsequent practice.
- Hamilton wrote a series of anonymous publications under the name “Pacificus” defending the President’s action. He argued that the President is vested with broad powers beyond the explicit grants in Sections 2 and 3 of Article II, limited only by express constitutional language such as the clause giving the Senate a role in making treaties. He argued that the Vesting Clause of Article II gives the President powers beyond simply implementing the laws, and that these powers are merely illustrated in the rest of Article II. (This was the first appearance of what has come to be called the “unitary executive theory,” which we discuss later in connection with the President’s Appointments and Removal powers.) Since the nation’s executive power was vested in the President, Hamilton reasoned, his authority to issue the Proclamation was unquestionable. In addition, he argued that the President is responsible for executing the laws—not just domestic laws, but also “the Law of Nations” (as...
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Chapter 9 Economic Regulation and Constitutional Rights 255 49 results (showing 5 best matches)
- At different times, the State of New York enacted one law restricting the hours that bakers could work and another law restricting the owners’ use of designated historic buildings. Such statutes involve important economic interests. What federal constitutional restrictions apply to such economic regulations? This is an unexpectedly complicated question. The historic preservation law might run afoul of the Takings Clause, which we discuss at the end of this chapter. The bakery regulation could be challenged under two other constitutional provisions.
- The character of the inquiry changes, however, when we switch from the question of substantive standards to the question of procedure. To apply the Due Process Clause, we must make two further inquiries. First, is the interest in question, as defined by state law, classified as liberty or property for due process purposes? Second, assuming the answer to this question is yes, what process is due before the state can take away this interest? In answering both questions,
- If the law regulating the hours of bakers were applied to rewrite existing labor-management contracts, it might violate the Contracts Clause of Article I, Section 10, which says that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts.” This clause provided the primary constitutional protection against economic regulation before the Civil War.
- Suppose, for example, that a state university establishes a rule that the Dean can expel any student she believes guilty of cheating. The law would clearly survive rational basis review. Nevertheless, it is troubling that the application of this criterion seems to be left to the unchecked discretion of the Dean, with no guarantee that accused students will have a right to be heard. In such a situation, the absence of a hearing process before a neutral decisionmaker may violate procedural due process, even though no substantive constitutional right is involved.
- Before further consideration of current doctrine, we flag an issue that many students find confusing: the interplay between federal and state law in procedural due process cases. When a state program does not involve any substantive constitutional right, the state has a virtually free hand over eligibility standards. Thus, for example, it is up to the state to decide the requirements for continuing in college, subject only to the rational basis test. So we have to look to
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Chapter 12 Fundamental Rights: Substantive Due Process 377 103 results (showing 5 best matches)
- The cases in this chapter embody several of the themes we discussed in Chapter 1. There is no question that constitutional politics has helped shape constitutional law in this area, as conservative Republicans increasingly made judicial appointments. But as the joint opinion illustrates, the Court’s decisions are not just a passive reflection of political forces. And these decisions have both responded to societal changes and influenced them, sometimes by encouraging proponents of its decisions and sometimes by energizing opponents of its rulings. These cases also illustrate some of the sharp jurisprudential divisions on the Court—primarily, between Justices who view certain constitutional rights as fixed by history, and Justices who view them as evolving in response to changes in facts and values.
- litigation was recent law school graduate and feminist Sarah Waddington. She brought suit on behalf of a pregnant woman to challenge a Texas law that made it a criminal offense to procure or provide an abortion except when the pregnancy would endanger the woman’s life. Waddington had been inspired by a student law review note laying out a constitutional argument, based on
- Our starting point is a series of cases stretching back to the 1920s, in which the Court gave special protection to issues relating to the family. In the 1960s, the Court moved into what was then a somewhat controversial issue, contraception, although its intervention was generally accepted by the public, if not by some constitutional law scholars. In the 1970s, the Court moved into what would become much more controversial territory in a landmark case that placed sharp constitutional limitations on laws restricting access to abortion. Later in the century and into the current one, the Court again found itself in the middle of a sustained social conflict, this time over gay rights. We close our discussion by examining the Court’s relatively hands-off approach to another fraught issue, assisted suicide.
- The existence of families is not mentioned in the Constitution or its amendments. Yet, families in some form are a universal human institution of deep personal and societal importance. In general, the Court has left issues of family law to the states. But from time to time the Court has found occasion to explicate the fundamental constitutional status of the family and marriage.
- , he emphasized that this was no routine state regulation: “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.” , although his theory was not met with much respect by legal commentators. The idea of penumbras—the fringes of shadows—from emanations of constitutional provisions seemed tenuous as a basis for a constitutional ruling.
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Chapter 11 Fundamental Rights Protected Under Equal Protection 347 43 results (showing 5 best matches)
- Justice Powell than turned to whether public education is a fundamental right. “It is not the province of this Court,” he said, “to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” The plaintiffs argued, however, that there were special reasons for constitutional recognition of education “because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote.”
- Although the federal courts have played only a small role in educational equality, many state courts have been less reluctant to enter the political fray. This fact provides us an opportunity to explain the role of state constitutional law in the U.S. legal system.
- For a review of the case law and discussion of the
- From the perspective of the relationship between constitutional politics and constitutional law, what is most fascinating about this area is how quickly the country accepted the Court’s reapportionment revolution. Justice Frankfurter had warned his colleagues for some fifteen years about the fraught political context of legislative reapportionment and the need for the Court to stay out of it lest judicial legitimacy be imperiled. did ignite a political firestorm that included various threatened responses, including a proposed constitutional amendment that would have partially reversed the result in the case. The proposal fell just short of passage by the Senate in 1965, however, and all other efforts to reverse the decision likewise failed. Moreover, all of these efforts failed swiftly. What the Court’s assertiveness lacked in
- It seems obvious that, if the United States is to be considered a nation, as opposed to an alliance among separate nations, citizens must have the constitutional right to cross interstate borders without needing visas or submitting to passport checks by states. Yet finding a constitutional hook for this proposition has not proved easy.
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Editorial Board 8 results (showing 5 best matches)
- Bonnie and Richard Reiss Professor of Constitutional Law
- William B. Graham Distinguished Service Professor of Law and Former Dean of the Law School
- Sterling Professor of International Law and Former Dean of the Law School
- Sho Sato Professor of Law
- Dean and the Sol & Lillian Goldman Professor of Law
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Table of Contents 16 results (showing 5 best matches)
Chapter 6 Taxing and Spending Powers 163 35 results (showing 5 best matches)
- The Constitutional Law of the “General Welfare”
- sustained broad congressional authority to attach strings to grants to state and local governments. In this case, federal law sought to establish a 21-year-old drinking age by denying 5 percent of federal highway funds to any state that declined to establish a 21-year-old drinking age. The Court assumed for purposes of its analysis that Congress lacked constitutional authority to establish a 21-year-old drinking age directly by using the Commerce Clause. (This is a difficult question given Section 2 of the 21st Amendment, which gives states special authority to regulate alcohol.) Notwithstanding its assumption that Congress could not impose a 21-year-old drinking age directly, the Court held 7 to 2 that the condition was constitutional.
- After the constitutional crisis of 1937, the Court did not formally overrule the Courts, commentators, and litigants have since disagreed about whether the Court’s Taxing Clause doctrine from the 1920s and 1930s remains good law. One reason it is hard to be sure is that the laws in these cases would be upheld under the Commerce Clause today, leaving no need to distinguish between a tax and a penalty.
- Because the Roberts opinion is the narrowest in support of the judgment that the Medicaid expansion was unconstitutional, it states the governing law and so is the most important opinion going forward. Like many scholarly efforts to identify when conditions attached to a gratuitous benefit are coercive and so unconstitutional, whether in the context of conditional spending or individual rights, the Chief Justice’s analysis is not wholly successful. This is unsurprising: the problem of unconstitutional coercion is one of the most difficult in all of constitutional law. Indeed, this is a difficult issue even in ordinary contract law, where distinguishing duress from hard bargaining is no easy task. The difficulty in persuasively distinguishing coercion from non-coercion may help explain why even a relatively federalist Court shied away from the issue until
- The case involved a constitutional challenge to the Marihuana Tax Act, which imposed a tax of $100 per ounce on transferors of marijuana who make transfers to unregistered transferees without the order form required by federal law and without payment by the transferees of the tax. Although it was “obvious” that the law “impos[ed] a severe burden on transfers to unregistered persons,” the Court declared that an exaction is a tax even if it prevents the conduct and raises little or no revenue.
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Chapter 8 Constitutional Rights and the States 231 38 results (showing 5 best matches)
- Yet, U.S. constitutional law ended up taking a much more circuitous path to a similar destination.
- After the eclipse of the Privileges or Immunities Clause, the Due Process Clause gradually grew in importance. (Constitutional law tends to be path dependent; if one provision is read very narrowly, pressure may mount to read another provision more broadly.) By the time it decided in 1887, the Court had concluded that due process protects more than fair procedure—that someone is deprived of their property without due process of law if the deprivation is based on an arbitrary legislative fiat. In reviewing the constitutionality of a state law prohibiting alcoholic beverages, the Court said that if “a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” ...secured by the fundamental law.” This language provided...
- Given that for all practical purposes the issue of incorporation is now settled, the reader is entitled to ask the reasons for recounting this history at some length. It remains important for at least three reasons. First, it illustrates how constitutional law evolves over long
- Second, the incorporation debate provides an apt case study for constitutional theorists. Although their purposes were very different, Justices Black and Thomas illustrate originalism at its most forceful. Justices Cardozo, Frankfurter, and Stevens provide strong examples of evolutionary theories in action. Their views perhaps resemble those of Professor David Strauss, the most oriented toward the common law method among the theorists we discussed in Chapter 3.
- The Politics of Equality in Constitutional Law
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Index 481 36 results (showing 5 best matches)
Title Page 3 results
Summary of Contents 8 results (showing 5 best matches)
Appendix The Constitution of the United States 455 39 results (showing 5 best matches)
- No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
- This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
- 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.
- All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
- Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be ...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 (Sundays excepted) after it shall have been presented to him, the Same shall be...
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- Publication Date: February 6th, 2019
- ISBN: 9781640208018
- Subject: Constitutional Law
- Series: Concepts and Insights
- Type: Hornbook Treatises
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Description:
United States Constitutional Law guides law students, political science students, and engaged citizens through the complexities of U.S. Supreme Court doctrine—and its relationship to constitutional politics—in key areas ranging from federalism and presidential power to equal protection and substantive due process. Rather than approach constitutional law as a static structure or imagine the Supreme Court as acting in isolation from society, the book elaborates and clarifies key constitutional doctrines while also drawing on scholarship in law and political science that relates the doctrines to large social changes such as industrialization, social movements such as civil rights and second-wave feminism, and institutional tensions between governmental actors. Combining legal analysis with historical narrative and sensitivity to political context, the book provides deeper understanding of how constitutional law arises, functions, and changes in a complex, often-divided society.
“Farber and Siegel have written an excellent introduction to American constitutional law and constitutional theory that emphasizes the continual interactions between constitutional law and constitutional politics. Clear, concise, and judicious, this splendid book will interest professors, lawyers, and students alike.”
—Jack M. Balkin, Yale Law School
”Dan Farber and Neil Siegel have given us a book on constitutional law that takes law seriously while also taking political science and history seriously. Anyone with an interest in constitutional law will find this book accessible and engaging; experts in the field will learn a lot from it. This is a genuinely impressive achievement.”
—David A. Strauss, University of Chicago Law School