United States Constitutional Law
Authors:
Farber, Daniel A. / Siegel, Neil S.
Edition:
2nd
Copyright Date:
2024
24 chapters
have results for Farber and Siegel's United States Constitutional Law (Concepts and Insights Series)
Chapter 1 Introduction 66 results (showing 5 best matches)
- 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 several 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.
- 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.
- Daniel A. Farber & Suzanna Sherry
- As anyone can see if they read a newspaper or a blog, watch cable TV, or follow social media, debates about the Constitution are a central part of public life in the United States. When the U.S. Supreme Court ends constitutional protection for the abortion right and bars affirmative action in higher education after almost a half-century of constitutional law to the contrary, the consequences reverberate throughout American society and affect many millions of Americans. When the Court upholds a health care “mandate” as a tax but gives states discretion over expanding Medicaid (which provides health insurance for economically vulnerable Americans), one-sixth of the U.S. economy is affected, along with a multitude of individual lives. So, the practical importance of constitutional law requires no argument.
- While the Court is an independent institutional force, it is also true that, over time, Supreme Court decisions tend to reflect the dominant ideas and values circulating in constitutional politics during the eras in which these decisions take place. There are at least three reasons for this. The first concerns the nature of the constitutional text and the practice of constitutional interpretation in the United States. Although some of the language in the text of the Constitution is stated as rules that leave little room for interpretation, much of the text articulates value-laden standards and principles, using the various approaches to constitutional interpretation discussed below that mainstream judges employ.
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Chapter 14 Where Structure Meet Rights: The Reconstruction Powers 104 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 next few decades 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 This doctrine had, for the most part, grown and strengthened over time. Its growth, and the Court’s extension of the doctrine 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 with other areas of constitutional law, it is impossible to separate the evolution of legal doctrine in this one from the ebb and flow of constitutional politics. The Reconstruction era was followed by a long period of “normalization” under which Southern states were given broad power to limit the rights of Black people. The Civil Rights Era of the 1950s and 1960s saw a resurgence of federal power, but it was followed by a period of conservative reaction favorable to states’ rights and skeptical of claims of widespread discrimination. The Supreme Court’s rulings have not, however, merely been passive reflections of their political context. Instead, the Court has also helped to shape the political atmosphere. The post-Civil War Court significantly limited the reach of congressional power to enforce the Civil War Amendments, and, in the modern era, the Court first championed federal authority to protect minority voting rights and later concluded that vigorous legal protection was...
- 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 enacting 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— —and one recurring issue: the roles of Congress and the Court in interpreting and enforcing the Civil War Amendments.
- , the Court held RFRA beyond the scope of Section 5 of the Fourteenth Amendment, so that it could not constitutionally be applied to state and local governments. The Court’s objection to RFRA was not the absence of state action, as in and ; 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.
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Preface 9 results (showing 5 best matches)
- Dan Farber thanks his 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. He also thanks Dianne Farber for her patience during an intense writing process.
- Second, we sought to make an intellectual contribution of our own 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 wanted to document not just a “dialogue” between constitutional visions inside and outside the courts, but also the extent to which each is shaped by the other.
- The reconstituted Court, with a six-Justice conservative supermajority, has arguably begun a constitutional revolution: ending a half-century of constitutional protection for the abortion right; prohibiting affirmative action in higher education after almost a half-century of both permitting and policing it; dramatically expanding the scope of the Second Amendment right to possess firearms for purposes of self-defense; crafting a “major questions doctrine” that significantly limits the power of administrative agencies; and decisively favoring the First Amendment claims of religious individuals and entities over antidiscrimination laws. At the same time, the Court defied President Trump’s apparent expectation that it would “protect” him from various investigations into his conduct, and the Court rejected an interpretation of the Elections Clause by Republican partisans that, if accepted, would have eliminated judicial review by state courts of the actions of state legislatures with...
- In future editions, we plan to cover additional changes in legal doctrine, fix any mistakes and omissions, and 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 that they wish to share. Dan Farber can be reached at dfarber@berkeley.edu. Neil Siegel can be reached at siegel@law.duke.edu.
- 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 found discussions of the main theories of constitutional interpretation; collective-action federalism and more formalist approaches to constitutional federalism; presidential power and the theory of the unitary executive; the benefits and costs of abandoning robust judicial protection of economic liberty; the three main mediating principles of constitutional equality that have molded disagreements over race within both the Court and American society; the ideology of the separate spheres for men and women, which the women’s movement in the late twentieth century sought—with substantial but incomplete success—to disestablish; and the Rehnquist Court’s efforts to vindicate equality values in addition to liberty...
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Chapter 13 Fundamental Rights: Substantive Due Process 216 results (showing 5 best matches)
- , in Chapter 14 and
- held that the Constitution provides no constitutional protection to abortion, so that abortion restrictions are subject to the highly deferential rational basis test. Thus, any restriction on abortion is constitutional if a rational person might think it serves some purpose. The Court’s analysis focused on whether the right to obtain an abortion is rooted in the Nation’s history and tradition. Alito found no support for a constitutional right to an abortion until the late Twentieth Century, and he emphasized that abortion had long been a crime under state law, with most states banning abortion without regard to the stage of pregnancy at the time the Fourteenth Amendment was ratified and during the late Nineteenth Century. The Court was dismissive of amicus briefs submitted by legal historians and constitutional law scholars presenting evidence that Nineteenth Century abortion bans were shaped not only by concerns about fetal life, but also by gender bias and anti-Catholic sentiment.
- The existence of families is not mentioned in the Constitution or its amendments. Yet, families in various forms 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.
- 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. These limitations would change over time but also endure for almost fifty years. Later in the century and into the
- Instead of rational basis review, he said, “[s]trict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” Indeed, “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has
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Copyright Page 3 results
- Concepts and Insights Series
- Published in the United States of America
- 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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Title Page 5 results
Chapter 3 Implementing Judicial Review 145 results (showing 5 best matches)
- Daniel A. Farber & Suzanna Sherry
- Daniel A. Farber & Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law
- Critics have also challenged the originalist claim of reducing judicial discretion and thereby depoliticizing constitutional law. These critics question whether historical events yield readily ascertainable interpretations or whether original meanings of constitutional texts are clear-cut. They also question whether lawyers and judges possess the training and historical knowledge needed for expert judgment about long-ago periods of time. Meanwhile, critics argue that originalism is indeterminate on the critical question of the level of generality; for instance, in cases involving affirmative action (which we will encounter in Chapter 10), it is unclear whether judges should be seeking the original meaning regarding whether affirmative action violates the Equal Protection Clause or the original meaning of the general concept of equality embedded in the clause.
- Robert H. Bork, The Tempting of America: The Political Seduction of Law
- Part II turns to the second issue and discusses theories of constitutional interpretation. Many trees have been sacrificed to print books, scholarly articles, and judicial opinions on this subject. The issue is also a frequent subject of discussion in the press and by politicians. It would take a series of books to fully explore the subject. Our goal is only to highlight the main theories and explain a bit of the surrounding debate.
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Chapter 10 “The Equal Protection of the Laws”: Race 200 results (showing 5 best matches)
- 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 based 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.”
- Slavery eventually became the subject of the most controversial debates about national power and constitutional rights during the first half of the Nineteenth Century. Two issues in particular were explosive. The first was federal power to pass fugitive slave laws, such as the Fugitive Slave Act of 1793, which permitted slaveholders to recover alleged escaped enslaved people merely by obtaining a certificate from a local magistrate. The second issue was federal power to prohibit slavery in American territories. Regulation of slavery in the territories was perhaps the single most important political and constitutional question in the United States in the decades before the Civil War. Politically, most people thought that the congressional decision to prohibit or permit slavery in the territories would determine the balance of power in the Senate between free and slave states. This was because free territories became free states and vice versa. ...about both the constitutional scope...and
- Section One of the Fourteenth Amendment, ratified in 1868, provides that all persons born or naturalized in the United States are citizens of the United States, thereby overruling the first holding of
- Throughout the first half of the Nineteenth Century, Congress addressed these constitutional questions through a commitment to a certain set of constitutional principles, whether abolitionist or pro-slavery, but through a series of political compromises. For example, the Missouri Compromise of 1820 sought to maintain a permanent balance between slave and free states in the Union by permitting slavery in territories south of the 36°30’ line (the southern border of Missouri) and banning slavery in the territories north of this line (except in Missouri). This compromise fully vindicated no one’s constitutional convictions.
- During the late 1870s and 1880s, Congress and Republican administrations offered Black Americans some protection of their constitutional right to vote, but the laws were relatively weak and federal enforcement efforts were intermittent; there was no significant impact on voting by Black people. Moreover, as just noted, a bipartisan coalition of Republicans and Democrats formed in Congress. They were united by a concern to promote economic interests, not racial equality, so they defeated bills that would have strengthened voting rights for Black people, and they secured the repeal of several Reconstruction statutes that endeavored to advance racial equality in the South by requiring federal supervision of Political elites in the South were emboldened by these developments in Washington, D.C., and they held state constitutional conventions in the late 1890s in which they candidly declared their commitment to white supremacy. ...statutory suffrage restrictions, was immediate and...
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Chapter 4 Defining the Nature of the Union : The Federal Structure and the Necessary and Proper Clause 143 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
- Daniel A. Farber,
- Daniel A. Farber,
- The Articles of Confederation were introduced in the Second Continental Congress in 1776, not approved by Congress until 1777, and not ratified by the final state (Maryland) until 1781. Historians, legal scholars, and political scientists have mostly criticized the Articles, but they did have strengths. The Articles defined the legal categories of both statehood and the United States under a new system of national law. The Articles did just that by bringing to bear a different kind of law—call it “constitutional”—to support the efforts of the colonies-turned-states to act collectively, not individually, often enough to get the young nation through the Revolution and to achieve independence from a great European power. These accomplishments are not nothing. Viewed as a waystation on the path to a more effective national government, the Articles were an impressive achievement.
- Unlike state governments, which are governments of powers. This means that, 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 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, and the enumeration of many of the legislative powers of Congress in Article I, Section 8. As Chief Justice John Marshall wrote in
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Chapter 8 Constitutional Rights and the States 101 results (showing 5 best matches)
- Federalism featured heavily in the disputes leading up to the Civil War. In the decades before the war, the single most explosive political and constitutional question facing the nation was the scope of congressional power to regulate slavery in U.S. territories, out of which would come new states; the political branches managed the issue through a series of delicate political compromises. In , discussed in Chapter 10, the Supreme Court sought to end such political resolutions by holding that Congress lacked the constitutional power to ban slavery in U.S. territories and that free Black people were barred from U.S. citizenship. During secession, Southerners such as Jefferson Davis argued that the Constitution was a compact among the states, from which they retained the right to withdraw. Abraham Lincoln argued that, on the contrary, the United States was a nation, not a confederation. ...it other federalism issues, given that the states of the former Confederacy were under...
- We will return to the issue of state action in the final chapter of this book, which deals with congressional enforcement of civil rights. As indicated by , the doctrine can restrict not only courts, but also Congress. But, as we will see, it is incorrect to say that Congress can never address private action using its authority to enforce the Reconstruction Amendments. In the meantime, we turn to a series of chapters about the scope of constitutional rights, particularly rights of due process and equal protection.
- Bingham was one of the politicians who doubted the constitutionality of the Civil Rights Act. Even before the House took up the civil rights bill, it had considered a constitutional amendment that he had proposed. The amendment provided that “Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” Congress had more pressing business, and Bingham’s amendment temporarily went on the back burner.
- Section 1 of the Act provided that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment” of public accommodations such as inns and railroads, “subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” Violation was a misdemeanor and entitled the victim to recover $500 in damages.
- In an opinion by Justice Joseph Bradley, the Court held the law unconstitutional. In the Court’s view, “positive rights and privileges are undoubtedly secured by the Fourteenth Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges,” and congressional statutes “must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect.” According to Justice Bradley, it would be “absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the state without due process of law,” Congress could legislate against denials of these rights by purely private actors like owners of inns, as opposed to state actors. ...Amendment “cannot be impaired by the wrongful acts of individuals, unsupported by State authority...
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Chapter 7 Presidential Power 201 results (showing 5 best matches)
- This executive order was the third in a series of such orders issued by President Donald Trump. The initial order singled out a group of countries with majority Muslim populations and provided a sketchy justification. The final order contained a more fully developed justification, eliminated some countries in the initial order, and added two non-Muslim countries. All three orders cited as justifications poor security vetting on the part of the countries involved and elevated risks to national security connected with visitors from these countries. The first and second orders were struck down by the lower federal courts as violations of either federal immigration law or the Establishment Clause, the latter based on a finding that they deliberately targeted members of a particular religion (Islam). The lower courts pointed for support to a series of public statements and tweets by Trump before and after his election and inauguration as President. For example, Trump had issued a “...
- 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, Black 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 a lawmaker.” Rather, Congress has the law-making power, Black insisted, and the Constitution “did not subject this law-making power of Congress to presidential or military supervision or control.” ...exclusive constitutional...
- 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, the President’s authority to issue the Proclamation was unquestionable. responsible for executing the laws—not just domestic laws, but also “the Law of Nations” (as international law was then called).
- The constitutional text provides a fairly barebones sketch of presidential power. Article II is relatively brief—much shorter than Article I. Section 1 begins with a statement that “[t]he executive Power shall be vested in a President of the United States of America.” As we will see, this Vesting Clause can be read either as a grant of authority or as merely descriptive of the President’s role the other branches. Section 1 continues with a lengthy description of election procedures. It concludes with the Presidential Oath Clause, prescribing a special oath for this office, in which the new President swears to “faithfully execute the Office of President of the United States, and to the best of my Ability, preserve, protect, and defend the Constitution of the United States.”
- United States v. Pink
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Chapter 11 “The Equal Protection of the Laws”: Gender 106 results (showing 5 best matches)
- 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. But federal laws are not covered by this rule, nor are state laws dealing with “public functions.” The Court has construed this category broadly to include police officers and schoolteachers (on the ground that teachers impart civic values), but not most low-level state employees.
- At the end of her opinion for the Court, Justice Ginsburg offered a very different constitutional understanding. She wrote that “[a] prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored and excluded.” So, in addition to implicating a debate over the level of scrutiny for gender classifications and the scope of the anti-stereotyping principle,
- We have focused in this chapter and the previous one 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 13, has drawn inspiration—and legal arguments—from the civil rights and women’s movements.
- United States v. Virginia
- Nor was the post-Civil War Supreme Court receptive to claims of gender equality. After ratification of the Fourteenth Amendment and continuing for much of the next century, the Court permitted state action discriminating between men and women as rationally reflecting real, natural differences in the roles of men and women. In 1873, in the Court rejected Myra Bradwell’s claim that an Illinois law prohibiting women from practicing law violated the Fourteenth Amendment’s Privileges or Immunities Clause. In a since-notorious concurrence, Justice Bradley read the Fourteenth Amendment in light of the common law of marital status and the ideology of separate spheres, and he invoked God as authority for the separate spheres tradition. in a brief that “the method of communication between the Creator and the jurist is never disclosed,” and that “ ‘divine ordinance’ has been a dominant theme in decisions justifying laws establishing sex-based classifications.” ...’s constitutional claim...
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Chapter 5 Interstate Commerce Clause 245 results (showing 5 best matches)
- 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.
- Era after the most (in)famous Supreme Court decision invalidating a state law during this period. It was the first era in which the Supreme Court used its power of judicial review with some frequency both to limit federal power under the Commerce Clause and to restrict state authority under the Due Process Clause of Section One of the Fourteenth Amendment. We will discuss the constitutional restrictions on state laws in Chapter 9. Here we present the Court’s Commerce Clause jurisprudence, which was characterized by a series of formal distinctions that were defended as limiting federal power and were criticized as arbitrary and ideologically biased.
- Some critics of the anti-commandeering principle, including one of us, initially described it as more symbolic than practically significant—as animated by concern that commandeering expresses disrespect for states—given (among other things) how rarely Congress has engaged in commandeering and all the regulatory alternatives at Congress’s disposal. From the vantage point of the present, this characterization seems incorrect given the real-world impact of the above judicial decisions and political debates, and given how much more difficult it is for the federal government to put federal “boots on the ground,” as opposed to relying upon state and local officials to enforce federal law. (The great majority of law enforcement officials in the United States work for state and local held for the first time in American history that a condition on the receipt of federal funds was unconstitutionally coercive, and it invoked the anti-commandeering principle to ground the constitutional...
- Critics also maintain that the anti-commandeering doctrine perversely encourages Congress to preempt state laws and thereby cut states out of the federal regulatory process entirely, which can make states worse off from their own perspectives than if they had been commandeered and so had played a role in enforcing federal law—typically by exercising at least some enforcement discretion. In , for example, Congress could have simply banned the interstate shipment of the waste, forcing each state to build a disposal facility or lose many businesses to sister states with disposal facilities. In addition, critics contend that concerns about whether Congress is internalizing the full financial costs of commandeering the states can be met by requiring Congress to pay the full costs; it is unnecessary overkill to give states a veto. Finally, critics underscore that the ability of Congress to commandeer state executive officials might be critically important in an emergency, such as a...
- Printz v. United States
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Chapter 2 The Role (and Regulation) of the Courts 108 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.
- constitutional questions in cases properly before them. In contrast, the grant of diversity jurisdiction is based on the identity of the parties, rather than the basis of the legal claim. It would seem odd to say that a case “arises” under the Constitution if the court is not allowed to consider any constitutional issues. But Marshall’s point did not get him all the way to where he wanted to go because it does not follow that federal courts can examine constitutional questions, especially judicial review of acts of Congress and the President. There is a very strong historical and functional argument for vertical judicial review—that is, for federal court review of state legislatures, state executive officials, and state courts. Vertical judicial review is necessary both to ensure the of federal law, which the Supremacy Clause of Article VI mandates, and to ensure ...federal law, which is highly valuable even if not constitutionally mandatory. Yet, there would be no federal...
- and , it was in the political interest of Congress and the President to support the Court’s assertions of authority to ensure the supremacy of the federal government and federal law over the states. An example is in 1816, in which the Supreme Court asserted the power of judicial review to invalidate state laws on federal constitutional grounds and asserted the power to review state court decisions interpreting federal law. in the interpretation of the Constitution and federal law. Back in 1787, an Anti-Federalist writing under the pseudonym Brutus had predicted that the Supreme Court would not be a neutral umpire between the federal government and the states; rather, it would use judicial review to increase the power of the federal government at the expense of the states.
- Any process for installing judges faces a tradeoff between securing judicial independence on one hand and ensuring the democratic accountability of judges on the other hand. Different systems address this tradeoff differently. In many states, judges are elected and/or re-elected, which reflects a concern to prioritize accountability over independence. In a number of constitutional democracies around the world, judges on constitutional courts are appointed for a limited term of, say, twelve to eighteen years, which can be thought of as seeking a middle ground between independence and accountability. And as we have already seen, federal judges in the United States enjoy life tenure, which arguably places greater emphasis on independence over accountability.
- The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
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Chapter 9 Economic Regulation and Constitutional Rights 95 results (showing 5 best matches)
- Daniel A. Farber, Murr v. Wisconsin and the Future of Takings Law, 2017 Sup. Ct. Rev. 115
- 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.
- upheld a Utah statute limiting miners and smelter workers to eight-hour days. Over the dissent of Justices David Brewer and Rufus Peckham, the Court upheld the regulation as a valid health and safety measure for those working in such hazardous jobs. Between 1898 and 1905, the U.S. Supreme Court upheld a series of state laws limiting freedom of contract, sometimes relying upon an idea suggested in —that placing an employer and employee on a more equal footing was itself a sufficient state interest to justify labor regulation.
- 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 general requirements for continuing in college, subject only to the rational basis test. So, we must look to
- In the late Nineteenth Century, the Court turned in another doctrinal direction, following the lead of some state courts. These state courts were interpreting the Due Process Clause of the Fourteenth Amendment to protect the liberty of private contracting and the sanctity of private property. Some of the state court judges who viewed the Due Process Clause in economic terms—Judges David Brewer from Kansas and Rufus Peckham from New York—were later appointed to the U.S. Supreme Court. In the 1890s, they transformed American constitutional law under cover of the Due Process Clause. The primary innovation of the state cases in the 1880s and of the Supreme Court decisions in the 1890s was their recognition of a “liberty of contract” right in the Due Process Clause. This line of cases is exemplified by . We discuss this decision and some related rulings below.
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Chapter 12 Fundamental Rights Protected Under Equal Protection 127 results (showing 5 best matches)
- One final point about this line of cases is worth noting. A distinction is often drawn between negative rights to be left alone by the state and positive rights to state assistance. The First Amendment, for example, establishes a negative right protecting speakers from government sanctions, but not a positive right of would-be speakers to government support so that they may speak more effectively. In the United States, federal constitutional rights are almost always of the negative type. But in many states and other countries, constitutions also protect positive rights, such as the right to a clean environment or a basic education, which imposes a constitutional obligation on the government to keep the environment clean and educate its residents. These rights require affirmative actions by the government to vindicate the right.
- 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.
- The right to travel between states is so elementary that it almost needs no justification. Nevertheless, given that the Constitution does not provide an explicit textual basis for this right, it is worth considering why it has constitutional status. We see this right as grounded both in individual rights (the freedom to move) and in federalism. In federalism terms, just as trade barriers between states would be damaging and a cause of friction between states, so too would be barriers to free movement. (In purely economic terms, the right to travel ensures a national labor market just as the dormant commerce clause ensures a national market for goods and services.) The right to travel avoids problems for the states that could be caused when states impose barriers to entry, even if similar problems may be caused when other states—through neglect of vulnerable members of their population—provide incentives to exit.
- indicated by some of the language quoted above, Justice Powell’s opinion did leave some wiggle room for a future case dealing with a more sharply defined and disenfranchised group and a more absolute deprivation of educational rights. involved a Texas law that denied state funding to children who were not lawfully admitted to the United States and that authorized local school districts to exclude them from school entirely.
- The right to travel may play an increased role in the years ahead. As the next chapter discusses, the Court ended constitutional protection for the abortion right in 2022, in In the wake of the Court’s decision, conservative states have increasingly passed significant restrictions on abortion access; liberal states have increasingly moved to protect such access; and pregnant women have increasingly traveled from conservative states to liberal ones to obtain abortions. Not since before the Civil War have the states been so divided over a moral question that involves the movement of individuals across state lines. In such an environment, one can imagine a cycle of state legislative responses and counter-responses, including attempts by states to impede travel for abortion beyond their borders and attempts by other states to thwart such regulation. In such a political ...the right to travel—for example, whether it includes protection from criminal punishment for out-of-state...
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Chapter 6 Taxing and Spending Powers 86 results (showing 5 best matches)
- Decades later, in 1817, then-President Madison vetoed on constitutional grounds Representative John C. Calhoun’s Bonus Bill, which would have funded internal improvements, including roads and canals. Calhoun (at that time a nationalist, though later a states’ rights extremist) thought that it would “promote the general welfare” of the nation “to perfect the communication from Maine to Louisiana,” to achieve “the connexion of the Lakes with the Hudson river,” “to connect all the great commercial points on the Atlantic . . . with the Western States,” and “to perfect the intercourse between the West and New Orleans.” Madison conceded the policy virtues of the proposal but vetoed it because he was “constrained, by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States.” ...reasoned, “that the power proposed to be exercised by the bill is among the enumerated powers; or that it falls, by any just interpretation, within the power to make laws...
- We turn now from the Commerce Clause to another constitutional “hook” that Congress may use to pass legislation. It is found in the first clause of Article I, Section 8, and it provides in relevant part that “Congress shall have Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States.” This provision is called the Taxing Clause, the Taxing and Spending Clause, or the General Welfare Clause. Recall from Chapter 4 that under the Articles of Confederation, the federal government had no power to tax individuals directly and little money to spend because the states routinely failed to pay their fair share of contributions to the national treasury, opting instead to free ride off the contributions of sister states. Also recall that, to solve what was probably the most significant collective action failure during the 1780s—the problem of financing the national government—the Constitution empowers Congress to assess,...
- United States v. Constantine
- The Supreme Court did not weigh in on this longstanding political debate over the purposes for which Congress may tax and spend until 1936. In
- 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 five percent of federal highway funds to any state that declined to establish this 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 potentially 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.
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Index 240 results (showing 5 best matches)
SUMMARY OF CONTENTS 24 results (showing 5 best matches)
Table of Contents 58 results (showing 5 best matches)
Editorial Board 7 results (showing 5 best matches)
- Bonnie and Richard Reiss Professor of Constitutional Law
- William B. Graham Distinguished Service Professor of Law andFormer Dean of the Law School
- Dean and the Sol & Lillian Goldman Professor of Law
- Agnes Williams Sesquicentennial Professor of LawAssociate Dean for Strategy, and Professor of Management
- Charles J. Ogletree Jr. Professor of LawHarvard Law School
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Table of Cases 67 results (showing 5 best matches)
- Publication Date: February 27th, 2024
- ISBN: 9798887866468
- 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. This second edition documents the profound changes in judge-made constitutional law that have occurred in the five years since the first edition was published.
“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
