American Constitutional Law, Volume II The Bill of Rights and Subsequent Amendments

PREFACE

NOTE TO THE READER

1 INTERPRETATION OF THE CONSTITUTION

Approaches to Constitutional Interpretation

The Approaches in Perspective

The Ends of the Constitution

Constitutional Means to Constitutional Ends

Notes

Selected Readings

2 CONSTITUTIONAL ADJUDICATION

The Justices of the Supreme Court

The Supreme Court in the Federal Judicial System

How Cases Get to the Supreme Court

How the Supreme Court Decides Cases

The Impact of Supreme Court Decisions

Analyzing Supreme Court Decisions

Notes

Selected Readings

3 RIGHTS UNDER THE CONSTITUTION

Rights and the Founding

The Fourteenth Amendment

Due Process and the Bill of Rights

Rights During Wartime and Other Emergencies

The Second Amendment

Notes

Selected Readings

CASES

Barron v. Baltimore (1833)

Palko v. Connecticut (1937)

Adamson v. California (1947)

Duncan v. Louisiana (1968)

Ex parte Milligan (1866)

Korematsu v. United States (1944)

Hamdi v. Rumsfeld (2004)

Boumediene v. Bush (2008)

District of Columbia v. Heller (2008)

McDonald v. Chicago (2010)

4 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSE

The Fourteenth Amendment

The Evisceration (and Possible Recent Restoration?) of the Privileges or Immunities Clause

Economic Regulation and the Rise of Substantive Due Process

The Demise of Substantive Due Process in the Economic Realm

Punitive Damages: An Exception to the Demise of Substantive Due Process in the Economic Realm?

The Emergence of Substantive Due Process in the Civil Liberties Realm

The Takings Clause

Notes

Selected Readings

CASES

The Slaughter-House Cases (1873)

Munn v. Illinois (1877)

Lochner v. New York (1905)

West Coast Hotel Company v. Parrish (1937)

Williamson v. Lee Optical Company (1955)

State Farm Mutual Automobile Insurance Company v. Campbell (2003)

United States v. Carolene Products Company (1938)

Kelo v. City of New London (2005)

Horne v. Department of Agriculture (2015)

Nollan v. California Coastal Commission (1987)

Lucas v. South Carolina Coastal Council (1992)

Koontz v. St. Johns River Water Management District (2013)

5 FREEDOM OF SPEECH, PRESS, AND ASSOCIATION

The Meaning of the First Amendment

First Amendment Standards

Political Expression

The Regulation of Speech and Association

Restraints on the Press

Libel and the Invasion of Privacy

Obscenity and Violence

Conclusions

Notes

Selected Readings

CASES

Gitlow v. New York (1925)

Schenck v. United States (1919)

Dennis v. United States (1951)

Brandenburg v. Ohio (1969)

Holder v. Humanitarian Law Project (2010)

Citizens United v. Federal Election Commission (2010)

Texas v. Johnson (1989)

R. A. V. v. City of St. Paul (1992)

McCullen v. Coakley (2014)

National Institute of Family and Life Advocates v. Becerra (2018)

Janus v. American Federation of State, County, and Municipal Employees (2018)

Minnesota Voters Alliance v. Mansky (2018)

Near v. Minnesota (1931)

New York Times Company v. United States (1971)

Branzburg v. Hayes (1972)

New York Times v. Sullivan (1964)

Indianapolis Anti-Pornography Ordinance (1984)

Brown v. Entertainment Merchants Association (2011)

6 FREEDOM OF RELIGION

Establishment of Religion

Free Exercise of Religion

Reconciling the Religion Clauses

Notes

Selected Readings

CASES

Everson v. Board of Education (1947)

School District of Abington Township v. Schempp (1963)

Lemon v. Kurtzman (1971)

Wallace v. Jaffree (1985)

Lee v. Weisman (1992)

McCreary County v. American Civil Liberties Union (2005)

Van Orden v. Perry (2005)

Rosenberger v. University of Virginia (1995)

Zelman v. Simmons-Harris (2002)

West Virginia Board of Education v. Barnette (1943)

Sherbert v. Verner (1963)

Employment Division, Department of Human Resources of Oregon v. Smith (1990)

City of Boerne v. Flores, Archbishop of San Antonio (1997)

Trinity Lutheran v. Comer (2017)

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018)

7 CRIMINAL PROCEDURE

The Ex Post Facto Clauses

Search and Seizure

Self-Incrimination and Coerced Confessions

Due Process of Law

The Right to Counsel

The Insanity Defense

The Entrapment Defense

Trial by Jury

The Right to a Speedy Trial

The Right to Confrontation

Plea Bargaining

Bail and Pretrial Detention

Cruel and Unusual Punishments

Prisoners’ Rights

Retroactive Application of Criminal Procedure Guarantees

Basic Themes in the Court’s Criminal Procedure Decisions

Notes

Selected Readings

CASES

Stogner v. California (2003)

Smith v. Doe (2003)

Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002)

Maryland v. King (2013)

Olmstead v. United States (1928)

Katz v. United States (1967)

Carpenter v. United States (2018)

Mapp v. Ohio (1961)

Miranda v. Arizona (1966)

Nix v. Williams (1984)

Connecticut Department of Public Safety v. Doe (2003)

Powell v. Alabama (1932)

Gideon v. Wainwright (1963)

Blakely v. Washington (2004)

Michigan v. Bryant (2011)

Gregg v. Georgia (1976)

Kennedy v. Louisiana (2008)

Roper v. Simmons (2005)

Miller v. Alabama (2012)

Harmelin v. Michigan (1991)

Ewing v. California (2003)

8 THE EQUAL PROTECTION CLAUSE AND RACIAL DISCRIMINATION

Race and the Founding

Racial Desegregation

Private Discrimination and the Concept of State Action

Racial Discrimination in Jury Trials

Racial Discrimination in Prisons

Proof of Discrimination: Disparate Treatment Versus Disparate Impact

Notes Selected Readings

CASES

Plessy v. Ferguson (1896)

Brown v. Board of Education (1954)

Bolling v. Sharpe (1954)

Brown v. Board of Education (1955)

Swann v. Charlotte-Mecklenburg Board of Education (1971)

United States v. Fordice (1992)

Missouri v. Jenkins (1995)

Shelley v. Kraemer (1948)

Moose Lodge No. 107 v. Irvis (1972)

Georgia v. McCollum (1992)

The Civil Rights Act of 1991 Ricci v. DeStefano (2009)

9 SUBSTANTIVE EQUAL PROTECTION

The Two-Tier Approach

The Development of an Intermediate Level of Review

Suspect Classifications

Fundamental Rights

The Future of Equal-Protection Analysis

Notes

Selected Readings

CASES

Richmond v. J. A. Croson Company (1989)

Adarand Constructors, Inc. v. Peña (1995)

Grutter v. Bollinger (2003)

Gratz v. Bollinger (2003)

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

Massachusetts Board of Retirement v. Murgia (1976)

Frontiero v. Richardson (1973)

United States v. Virginia (1996)

Rostker v. Goldberg (1981)

Shapiro v. Thompson (1969)

San Antonio Independent School District v. Rodriguez (1973)

10 VOTING AND REPRESENTATION

Equal Protection and the Right to Vote

Race and Representation: The Fifteenth Amendment and the Voting Rights Act

Notes

Selected Readings

CASES

Wesberry v. Sanders (1964)

Reynolds v. Sims (1964)

Vieth v. Jubelirer (2004)

Harper v. Virginia State Board of Elections (1966)

Crawford v. Marion County Election Board (2008)

Bush v. Gore (2000)

Katzenbach v. Morgan (1966)

Shaw v. Reno (1993)

Shelby County v. Holder (2013)

11 THE RIGHT TO PRIVACY, PERSONAL AUTONOMY, AND DIGNITY

The Constitutional Basis

What the Right to Privacy Protects

Qualifications on the Right to Privacy

Personal Autonomy and the Right to Die

Notes

Selected Readings

CASES

Troxel v. Granville (2000)

Griswold v. Connecticut (1965)

Roe v. Wade (1973)

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Gonzales v. Carhart (2007)

Lawrence v. Texas (2003)

Defense of Marriage Act of 1996 Obergefell v. Hodges (2015)

Cruzan v. Director, Missouri Department of Health (1990)

Washington v. Glucksberg (1997)

Vacco v. Quill (1997)

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

JUSTICES OF THE SUPREME COURT

GLOSSARY OF COMMON LEGAL TERMS

TABLE OF CASES

Biography

Ralph A. Rossum is Henry Salvatori Professor of American Constitutionalism at Claremont McKenna College. He earned his PhD from the University of Chicago and is the author of several books, including The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians (2011); Antonin Scalia’s Jurisprudence: Text and Tradition (2006); Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (2001); Congressional Control of the Judiciary: The Article III Option (1988); The American Founding: Politics, Statesmanship, and the Constitution (1981); Reverse Discrimination: The Constitutional Debate (1979); and The Politics of the Criminal Justice System: An Organizational Analysis (1978). He has served in the US Department of Justice as deputy director of its Bureau of Justice Statistics and as a board member of its National Institute of Corrections. He currently serves as a member of the California Advisory Committee, US Commission on Civil Rights.

G. Alan Tarr is Board of Governors Professor Emeritus and the founder and former Director of the Center for State Constitutional Studies at Rutgers University in Camden, New Jersey. He received his doctorate from the University of Chicago. Professor Tarr is the author of several books, including Judicial Process and Judicial Policymaking (6th edition, 2013), Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (2012), Understanding State Constitutions (1998), and State Supreme Courts in State and Nation (1988). He is coeditor of the three-volume State Constitutions for the Twenty-First Century (2005), Constitutional Dynamics in Federal Systems: Subnational Perspectives (2012), Constitutional Origins, Structure, and Change in Federal Countries (2005), and several other volumes. Three times the recipient of fellowships from the National Endowment for the Humanities and more recently a Fulbright Fellow, Professor Tarr has served as a consultant to the US Department of State, the American Bar Association, the National Center for State Courts, and several state governments. He has lectured on American constitutionalism and federalism throughout the United States, as well as in Africa, Asia, Europe, North America, and South America.

Vincent Phillip Muñoz is Tocqueville Associate Professor of Political Science and Director of the Program of Constitutional Studies at the University of Notre Dame. He received his BA from Claremont McKenna College, MA from Boston College, and Ph.D. from The Claremont Graduate School. Professor Muñoz is author of God and the Founders: Madison, Washington, and Jefferson (2009) and editor of Religious Liberty and the American Supreme Court: The Essential Cases and Documents (revised edition, 2015).

Praise for American Constitutional Law:

"This casebook is ideal for undergraduate classes in constitutional law. The case selection thoughtfully balances the old and new; the editing of cases is done with precision and care. The editors’ introductory essays are models of clarity, organization, and focus on the crucial problems of constitutional interpretation. The essays are attentive to doctrinal details without losing sight of the Constitution as a whole. The supporting website provides a rich source of recent and earlier decisions that provide flexibility for instructors. American Constitutional Law is, in sum, the class of its class."

G. Roger McDonald, John Jay College of Criminal Justice

"These volumes are a sound, balanced introduction into the study of Constitutional Law. The abridged cases are substantive but still accessible to the average undergraduate student and provide a solid basis for gaining a foothold in the discipline and for generating vigorous discussion and debate on the case law."

Darren Patrick Guerra, Biola University

"An excellent set of volumes for teaching constitutional law to undergraduates. The approach is both scholarly and highly accessible. It is also organized in a way that gives instructors the flexibility to formulate their own approach to teaching constitutional law."

Michael Zarkin, Westminster College

"An excellent two-volume Constitutional Law case book with sophisticated introductions."

Saul Brenner, University of North Carolina at Charlotte

"Its greatest strengths are threefold. First, the case excerpts are ideal for undergraduate students who are being exposed to the reading of case law for the first time and who are not familiar with legal nomenclature. … The second great virtue of the book is that the introductory sections of each chapter, which precede the case law, succinctly summarize the law, history, and politics related to the cases that students are about to encounter. These introductions do an excellent job setting the context for the case law. … The third great virtue of the text is that the editors do as good a job as any constitutional law text tying the case law to what the framers of the constitutional provisions at issue had to say. This allows students to understand the original meaning of the Constitution in a way they might seldom appreciate with other textbooks that disregard or object to such approaches to constitutional law."

Anthony A. Peacock, Utah State University