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Constitutional Law : Principles and Policies

ISBN: 9780735557871 | 073555787X
Edition: 3rd
Format: Nonspecific Binding
Publisher: ASPEN
Pub. Date: 4/1/2006

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SummaryTable of Contents
CONSTITUTIONAL LAW: Principles and Policies continues to serve as an incomparably clear introduction to both doctrine and policy in its Third Edition.This highly successful student treatise offers distinct advantages:thorough treatment of all areas of constitutional law covered in both beginning and advanced coursesdirect, unambiguous identification of the issuestakes a neutral approach that examines all sides of constitutional law debatespresents both the doctrines and the underlying policy issues of the law, unlike many other texts which emphasize one or the otherflexible organization allows the chapters to be used in any orderFor the Third Edition, the author:updates the entire text, with new material introduced throughoutpays special attention to developments between editions, particularly in regard to presidential power in the war on terrorism, the many decisions concerning state sovereign immunity, the controversial rulings concerning the takings clause, the important decisions concerning affirmative action by colleges and universities, and significant developments concerning the Establishment Clause (such as the approval of vouchers and the Ten Commandments decisions)covers the most recent and significant cases, among them Hamdi v. Rumsfeld (executive power to detain enemy combatants), Nevada Department of Human Resources v. Hibbs and Tennessee v. Lane (sovereign immunity), Gonzales v. Raich (Congress's ability to prohibit possession and cultivation of marijuana for medicinal purposes), City of New London, Connecticut v. Kelo (takings clause), Grutter v. Bollinger and Gratz v. Bollinger (equal protection), Lawrence v. Texas (sexual privacy), and Zelman v. Simmons-Harris (vouchers)
Prefacexxi
Acknowledgmentsxxv
Historical Background and Contemporary Themes
1(32)
The Constitution's Functions
... MORE1(5)
Why a Constitution?
6(3)
A Brief History of the Creation and Ratification of the Constitution and Its Amendments
9(6)
How Should the Constitution Be Interpreted?
15(13)
Who Should Be the Authoritative Interpreter of the Constitution?
28(5)
The Federal Judicial Power
33(200)
Introduction
34(5)
The Authority for Judicial Review
39(10)
Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential Actions
39(8)
The Authority for Judicial Review of State and Local Actions
47(2)
Introduction to the Justiciability Doctrines
49(4)
The Prohibition Against Advisory Opinions
53(7)
Standing
60(43)
Introduction
60(4)
Injury
64(11)
Causation and Redressability
75(7)
The Limitation on Third-Party Standing
82(8)
The Prohibition Against Generalized Grievances
90(8)
The Requirement That the Plaintiff Be Within the Zone of Interests Protected by the Statute
98(5)
Ripeness
103(10)
Introduction
103(2)
Criteria for Determining Ripeness: The Hardship to Denying Review
105(6)
Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review
111(2)
Mootness
113(16)
Description of the Mootness Doctrine
113(3)
Exceptions to the Mootness Doctrine: Collateral Consequences
116(2)
Exceptions to the Mootness Doctrine: Wrongs Capable of Repetition Yet Evading Review
118(4)
Exceptions to the Mootness Doctrine: Voluntary Cessation
122(4)
Exceptions to the Mootness Doctrine: Class Actions
126(3)
The Political Question Doctrine
129(20)
What Is the Political Question Doctrine?
129(3)
Should There Be a Political Question Doctrine?
132(2)
The ``Republican Form of Government'' Clause and Judicial Review of the Electoral Process
134(6)
Foreign Policy
140(3)
Congressional Self-Governance
143(2)
The Process for Ratifying Constitutional Amendments
145(2)
Excessive Interference With Coordinate Branches of Government
147(1)
Impeachment and Removal from Office: Nixon v. United States
148(1)
Congressional Control of Federal Court Jurisdiction
149(31)
Introduction
149(5)
Congressional Control of Supreme Court Jurisdiction
154(12)
Congressional Control of Lower Federal Court Jurisdiction
166(14)
Sovereign Immunity as a Limit on the Federal Judicial Power
180(53)
History of the Ratification of the Eleventh Amendment
182(5)
What Does the Eleventh Amendment Mean? Competing Theories
187(6)
The Application of the Eleventh Amendment: What's Barred and What's Allowed
193(7)
Ways Around the Eleventh Amendment: Suits Against State Officers
200(18)
Ways Around the Eleventh Amendment: Waiver
218(5)
Ways Around the Eleventh Amendment: Suits Pursuant to Federal Laws
223(10)
The Federal Legislative Power
233(104)
The Doctrine of Limited Federal Legislative Authority
234(2)
McCulloch v. Maryland and the Scope of Congressional Powers
236(6)
The Commerce Power
242(31)
Introduction to the Commerce Power
242(1)
Gibbons v. Ogden and the Definition of the Commerce Power
243(3)
The Commerce Clause Before 1937
246(8)
The Commerce Clause From 1937 to 1995
254(10)
The Commerce Clause After United States v. Lopez
264(9)
The Taxing and Spending Power
273(8)
The Scope of the Taxing and Spending Power
273(2)
The Taxing Power
275(3)
The Spending Power
278(3)
Other Congressional Powers Under Article I and Article IV
281(7)
Foreign Policy
281(5)
Domestic Affairs
286(2)
Congress's Powers Under the Reconstruction Era Amendments
288(13)
May Congress Regulate Private Conduct?
288(5)
What Is the Scope of Congress's Power?
293(8)
Congress's Power to Authorize Suits Against State Governments
301(9)
Congress's Power to Investigate
310(2)
The Tenth Amendment and Federalism as a Limit on Congressional Authority
312(15)
Delegation of Legislative Power and the Problems of the Administrative State
327(10)
The Nondelegation Doctrine and Its Demise
327(4)
The Legislative Veto
331(3)
Delegation of Executive Power to Congress and Its Officials
334(3)
The Federal Executive Power
337(52)
Express and Inherent Presidential Powers
337(8)
Appointment and Removal Power
345(9)
The Appointment Power
346(3)
The Removal Power
349(5)
Executive Privilege
354(6)
Presidential Immunity to Criminal and Civil Suits
360(3)
Pardon Power
363(3)
Foreign Policy
366(17)
Are Foreign Policy and Domestic Affairs Different?
366(2)
Treaties and Executive Agreements
368(5)
War Powers
373(3)
Presidential Power and the War on Terrorism
376(7)
Impeachment and Removal From Office
383(6)
Limits on State Regulatory and Taxing Power
389(86)
Introduction
390(2)
Preemption of State and Local Laws
392(27)
Introduction
392(4)
Express Preemption of State Laws
396(5)
``Field Preemption''
401(8)
Conflicts Between State and Federal Laws
409(3)
State Laws That Impede Achievement of Federal Objectives
412(4)
Preemption of State Taxation or Regulation of the Federal Government
416(3)
The Dormant Commerce Clause
419(35)
What Is the Dormant Commerce Clause?
419(2)
Should There Be a Dormant Commerce Clause?
421(3)
An Overview of the Dormant Commerce Clause
424(6)
The Central Question: Is the State Discriminating Against Out-of-Staters?
430(7)
The Analysis When a State Is Not Discriminating
437(6)
The Analysis When a State Is Discriminating
443(6)
Exceptions
449(5)
State Taxation of Interstate Commerce
454(12)
The Test Used to Evaluate State Taxes of Interstate Commerce
454(3)
The Requirement for a Substantial Nexus to the Taxing State
457(1)
The Requirement for Fair Apportionment
458(3)
The Prohibition of Discrimination Against Out-of-Staters
461(3)
The Requirement for Fair Relationship to Services Provided by the State
464(2)
The Privileges and Immunities Clause of Article IV, §2
466(9)
Introduction
466(3)
What Are the ``Privileges and Immunities'' of Citizenship?
469(4)
What Is Sufficient Justification for Discrimination?
473(2)
The Structure of the Constitution's Protection of Civil Rights and Civil Liberties
475(70)
Introduction
475(2)
Textual Provisions, Apart From the Bill of Rights, Protecting Individual Rights
477(14)
A Review of the Textual Provisions Protecting Rights
477(2)
The Prohibition of Bills of Attainder
479(5)
The Prohibition Against Ex Post Facto Laws
484(7)
The Application of the Bill of Rights to the States
491(16)
The Rejection of Application Before the Civil War
491(1)
A False Start: The Privileges or Immunities Clause and the Slaughter-House Cases
492(7)
The Incorporation of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment
499(8)
The Application of Civil Rights and Civil Liberties to Private Conduct: The State Action Doctrine
507(32)
The Requirement for State Action
507(3)
Why Have a State Action Requirement?
510(3)
Is It the Government?
513(4)
The Exceptions to the State Action Doctrine
517(22)
The Levels of Scrutiny
539(6)
Procedural Due Process
545(60)
The Distinction Between Procedural and Substantive Due Process
545(4)
What Is a ``Deprivation''?
549(8)
Is It a Deprivation of ``Life, Liberty, or Property''?
557(22)
The ``Rights-Privileges'' Distinction and Its Demise
557(2)
Deprivations of ``Property''
559(6)
Deprivations of ``Liberty''
565(13)
Deprivations of ``Life''
578(1)
What Procedures Are Required?
579(26)
When Is Procedural Due Process Required?
579(1)
What Is the Test for Determining What Process Is Due?
580(3)
The Mathews v. Eldridge Test Applied
583(22)
Economic Liberties
605(62)
Introduction
605(3)
Economic Substantive Due Process
608(21)
Economic Substantive Due Process During the Nineteenth Century
608(6)
Economic Substantive Due Process During the Lochner Era
614(7)
Economic Substantive Due Process Since 1937
621(8)
The Contracts Clause
629(10)
Introduction
629(2)
The Contracts Clause Before 1934
631(3)
The Contracts Clause Since 1934
634(5)
The Takings Clause
639(28)
Introduction
639(2)
What Is a ``Taking''?
641(17)
What Is ``Property''?
658(4)
What Is a Taking for ``Public Use''?
662(2)
What Is the Requirement for ``Just Compensation''?
664(3)
Equal Protection
667(124)
Introduction
668(9)
Constitutional Provisions Concerning Equal Protection
668(1)
A Framework for Equal Protection Analysis
669(8)
The Rational Basis Test
677(13)
Introduction
677(3)
The Requirement for a ``Legitimate Purpose''
680(5)
The Requirement for a ``Reasonable Relationship''
685(5)
Classifications Based on Race and National Origin
690(59)
Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments
690(4)
Strict Scrutiny for Discrimination Based on Race and National Origin
694(2)
Proving the Existence of a Race or National Origin Classification
696(25)
Remedies: The Problem of School Segregation
721(11)
Racial Classifications Benefiting Minorities
732(17)
Gender Classifications
749(17)
The Level of Scrutiny
749(8)
Proving the Existence of a Gender Classification
757(3)
Gender Classifications Benefiting Women
760(6)
Alienage Classifications
766(11)
Introduction
766(2)
Strict Scrutiny as the General Rule
768(4)
Alienage Classifications Related to Self-Government and the Democratic Process
772(2)
Congressionally Approved Discrimination
774(1)
Undocumented Aliens and Equal Protection
775(2)
Discrimination Against Nonmarital Children
777(5)
Other Types of Discrimination: Rational Basis Review
782(9)
Age Classifications
782(2)
Discrimination Based on Disability
784(1)
Wealth Discrimination
785(2)
Discrimination Based on Sexual Orientation
787(4)
Fundamental Rights Under Due Process and Equal Protection
791(130)
Introduction
792(6)
Constitutional Bases for Fundamental Rights
792(2)
Framework for Analyzing Fundamental Rights
794(4)
Constitutional Protection for Family Autonomy
798(15)
The Right to Marry
798(4)
The Right to Custody of One's Children
802(4)
The Right to Keep the Family Together
806(3)
The Right to Control Upbringing of Children
809(4)
Constitutional Protection for Reproductive Autonomy
813(31)
The Right to Procreate
813(2)
The Right to Purchase and Use Contraceptives
815(4)
The Right to Abortion
819(25)
Constitutional Protection for Sexual Activity and Sexual Orientation
844(3)
Constitutional Protection for Medical Care Decisions
847(8)
Constitutional Protection for Control Over Information
855(2)
Constitutional Protection for Travel
857(14)
The Recognition of the Right to Travel as a Fundamental Right
857(4)
What Constitutes an Infriengement of the Right to Travel?
861(7)
Restrictions on Foreign Travel
868(3)
Constitutional Protection for Voting
871(36)
The Right to Vote as a Fundamental Right
871(2)
Restrictions on the Ability to Vote
873(9)
Dilution of the Right to Vote
882(8)
Inequalities in Counting Votes Within a State
890(7)
Racial Discrimination in Voting Rights
897(4)
Restrictions on Parties and Candidates
901(6)
Constitutional Protection for Access to Courts
907(10)
Constitutional Protection for a Right to Education
917(4)
First Amendment: Expression
921(260)
Introduction
922(10)
Historical Background
922(2)
Why Should Freedom of Speech Be a Fundamental Right?
924(7)
The Issues in Free Expression Analysis
931(1)
Free Speech Methodology
932(54)
The Distinction Between Content-Based and Content-Neutral Laws
932(9)
Vagueness and Overbreadth
941(8)
Prior Restraints
949(20)
What Is an Infringement of Freedom of Speech?
969(17)
Types of Unprotected and Less Protected Speech
986(137)
Introduction
986(1)
Incitement of Illegal Activity
987(14)
Fighting Words, the Hostile Audience, and the Problem of Racist Speech
1001(15)
Sexually Oriented Speech
1016(28)
Reputation, Privacy, Publicity, and the First Amendment: Torts and the First Amendment
1044(19)
Symbolic Speech: Conduct That Communicates
1063(21)
Commercial Speech
1084(25)
Speech of Government Employees
1109(9)
Attorneys' Speech
1118(4)
Labor Picketing and Protests
1122(1)
What Places Are Available for Speech?
1123(31)
Introduction
1123(1)
Government Properties and Speech
1124(20)
Private Property and Speech
1144(2)
Speech in Authoritarian Environments: Military, Prisons, and Schools
1146(8)
Freedom of Association
1154(10)
Introduction
1154(2)
Laws Prohibiting or Punishing Membership
1156(2)
Laws Requiring Disclosure of Membership
1158(2)
Laws Prohibiting Discrimination
1160(4)
Freedom of the Press
1164(17)
Introduction
1164(1)
Freedom of the Press as a Shield to Protect the Press From the Government
1165(11)
Freedom of the Press as a Sword to Gain Access to Government Places and Papers
1176(5)
First Amendment: Religion
1181(88)
Introduction
1181(11)
Constitutional Provisions Concerning Religion and the Tension Between Them
1181(6)
What Is Religion?
1187(5)
The Establishment Clause
1192(54)
Competing Theories of the Establishment Clause
1192(7)
Government Discrimination Among Religions
1199(3)
The Lemon Test for the Establishment Clause
1202(4)
Religious Speech and the First Amendment
1206(9)
When Can Religion Become a Part of Government Activities?
1215(12)
When Can Government Give Aid to Religion?
1227(19)
The Free Exercise Clause
1246(23)
Introduction
1246(4)
Challenges to Laws Regulating or Burdening Religious Conduct
1250(15)
Government Involvement in Religious Disputes
1265(4)
Appendix The Constitution of the United States of America1269(18)
Table of Cases1287(38)
Index1325

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