American Constitutional Law

by Kaplin, William A.

• ISBN13: 9780890890844
• ISBN10: 0890890846
• Format: Paperback
• Copyright: 2004-09-02
• Publisher: Carolina Academic Press

Author Biography

William A. Kaplin is Professor of Law at The Catholic University of America in Washington, D.C.

Table of Contents

Preface	xv
The Content of This Book	xv
Premises and Goals of This Book	xv
Use of This Book by Law Students, Graduate Students, and Independent Learners	xviii
Tips on Using This Book	xix
Acknowledgments	xxi
General Introduction	3	(4)
Getting Oriented to Constitutional Law: Introductory Perspectives and Suggestions	7	(16)
The Purposes and Functions of Constitutional Law	7	(3)
The Relationship Between the U.S. Constitution and U.S. Constitutional Law	7	(3)
The Role of the Courts in Developing Constitutional Law	10	(1)
Initial Perspectives on Constitutional Law: Prescriptions for Study and Practice	10	(7)
Constitutional Law Research: Finding Judicial Opinions and Related Resources	17	(2)
Selected Supplementary Resources to Enrich the Study and Practice of Constitutional Law	19	(4)
The Constitution of the United States of America	23	(34)
The Concept of a Constitution	23	(9)
Constitutions in General	23	(4)
The American Constitutions, State and Federal	27	(2)
The U.S. Constitution	29	(3)
The Constitutional System of Government: In the Words of the Great Justices	32	(6)
The Distinction Between Constitutional Powers and Constitutional Rights	38	(3)
Exercise No. 1: Who Is Empowered and Who is Limited by the Constitution?	41	(3)
Interpreting the Constitution: In the Words of the Great Justices	44	(3)
A First Look at the Process of Constitutional Interpretation	47	(5)
Overview	47	(1)
Sources of Constitutional Interpretation	47	(1)
Approaches to Constitutional Interpretation	48	(1)
The Starting Point: The Textual Approach	49	(3)
Exercise No. 2: Textual Interpretation of the Constitution	52	(5)
Judicial Opinions on Constitutional Law Issues	57	(26)
The Judicial Opinion As a Legal Document	57	(1)
The Difference Between Explaining Constitutional Law Decisions (``Explanation'') and Justifying Constitutional Law Decisions (``Justification'')	58	(3)
A Practical Method for Reading and Analyzing Constitutional Law Opinions	61	(2)
Exercise No. 3: Analyzing a U.S. Supreme Court Case: New York Times v. United States (the Tension Between Free Press and National Security)	63	(16)
Exercise No. 4: Analyzing A U.S. Supreme Court Case: Brown v. Board of Education (Desegregating the Public Schools)	79	(4)
The Context for Considering Constitutional Power Questions	83	(24)
An Overview of Federal Constitutional Powers	83	(5)
The Powers of the Three Branches	83	(1)
Federal Constitutional Powers Compared With State Constitutional Powers	84	(3)
Federal Constitutional Restrictions on the Structure of State Government	87	(1)
Introduction to Federalism and Separation of Powers	88	(4)
Interpreting the Power Clauses	92	(6)
Overview	92	(1)
The Historical Approach to Interpretation	92	(5)
The Structural Approach to Interpretation	97	(1)
Historical Timeline for the Development of Federal Constitutional Powers	98	(9)
Judicial Power and Judicial Review	107	(30)
Conceptual Overview of Judicial Power	107	(2)
Exercise No. 5: Judicial Review and Judicial Supremacy (The Government's Use of Thermal Imaging Equipment for Surveillance Purposes)	109	(6)
Who Interprets the Constitution?	115	(2)
Jurisdiction and ``Justiciability'' in Federal Courts	117	(8)
Overview	117	(2)
The Advisory Opinion Doctrine	119	(1)
The Standing Doctrine	119	(2)
The Mootness Doctrine	121	(1)
The Ripeness Doctrine	122	(1)
The Political Question Doctrine	123	(1)
The Abstention Doctrines	124	(1)
Immunities from Suit	125	(4)
The Continuing Controversy Over Judicial Supremacy	129	(5)
Overview	129	(1)
The Counter-Majoritarian Difficulty and Its Manifestations	129	(1)
Political Control of the Federal Courts	130	(1)
Justiciability	131	(1)
Immunities from Suit	132	(1)
Modes of Constitutional Interpretation	133	(1)
Standards of Judicial Review	133	(1)
Study Suggestions	134	(3)
Congressional Powers and Federalism	137	(38)
The American Concept of Federalism	137	(7)
An Introduction to Congressional Powers	144	(9)
Congress' Powers in General	144	(2)
Exclusive Powers vs. Concurrent Powers	146	(1)
Implied Powers	147	(2)
Judicial Limits vs. Political Limits on Congress' Powers	149	(1)
The Role of the Tenth Amendment	150	(3)
The Commerce Power	153	(9)
A Historical and Conceptual Overview	153	(4)
The New Era of Commerce Clause Cases	157	(1)
State Autonomy and the Commerce Power: An Overview	158	(1)
State Autonomy from General Congressional Regulation	159	(2)
State Autonomy from Congressional Regulations Uniquely Applicable to the States	161	(1)
The Taxing and Spending Powers: A Conceptual Overview	162	(3)
The Enforcement Powers: A Conceptual Overview	165	(1)
Foreign Relations Powers	166	(2)
State Government Autonomy or Immunity from Congressional Legislation	168	(3)
Overview	168	(1)
State Sovereign Immunity from Suits to Enforce Congressional Legislation	169	(2)
Exercise No. 6: The Fair Labor Standards Act, State Autonomy, and State Immunity	171	(2)
Study Suggestions	173	(2)
Federalistic Limits on the Exercise of State Power	175	(20)
A Conceptual Overview	175	(2)
Negative Implication Cases: the Dormant Commerce Clause	177	(5)
Overview	177	(1)
Discriminatory State Laws	178	(1)
Neutral State Laws	179	(2)
The Market Participant Exception	181	(1)
Preemption and Consent	182	(5)
Congressional Authority to Preempt or Consent	182	(1)
Preemption	183	(2)
Congressional Consent	185	(2)
Intergovernmental Immunities	187	(3)
State Immunities	187	(1)
Federal Immunities	188	(2)
The Interstate Privileges and Immunities Clause (Article IV)	190	(2)
Comparison With Fourteenth Amendment Privileges and Immunities	190	(1)
Protection of Interstate (Personal) Mobility	191	(1)
Analysis of Privileges and Immunities Issues	191	(1)
Study Suggestions	192	(3)
Executive Powers and the Separation of Powers	195	(24)
The American Separation-of-Powers Concept	195	(8)
A Comparison of Presidential Powers and Congressional Powers	203	(2)
A Conceptual Overview of Presidential Powers	205	(5)
The Grants of Express Powers	205	(2)
Presidential Implied Powers	207	(1)
Delegations of Authority From Congress	208	(1)
The Possibility of Inherent Powers	209	(1)
Domestic Affairs Powers Versus Foreign Affairs Powers	209	(1)
Executive Branch Clashes with Congress	210	(6)
The Youngstown Case and Variations on Analysis	210	(2)
Federal Administrative Agencies	212	(4)
Executive Branch Clashes with the Courts	216	(2)
Study Suggestions	218	(1)
The Context for Considering Constitutional Rights Questions	219	(42)
An Overview of Federal Constitutional Rights	219	(7)
In General	219	(1)
The Cruel and Unusual Punishment Clause	220	(1)
The Fourth Amendment	221	(1)
The Second Amendment	221	(2)
Economic Rights (the Takings Clause and the Contract Clause)	223	(1)
The Thirteenth and Fifteenth Amendments	224	(1)
Privileges and Immunities Clauses	225	(1)
Interpreting the Individual Rights Clauses	226	(7)
Interpretive Approaches	226	(1)
The Values Approach	227	(1)
What Kind of Values Count?	228	(1)
Where May an Interpreter Search for Values?	229	(4)
Exercise No. 7: Interpreting the Equal Protection Clause: Brown v. Board of Education (Racial Segregation in Public Schools)	233	(12)
The State Action Doctrine	245	(8)
Origins of the State Action Doctrine	245	(1)
Purpose and Role of the State Action Doctrine	246	(3)
Techniques for Analyzing State Action Problems	249	(4)
Historical Timeline for the Development of Federal Constitutional Rights	253	(8)
Equal Protection and Privileges or Immunities	261	(38)
Introduction to the Fourteenth Amendment	261	(2)
A Conceptual Overview of Privileges or Immunities	263	(1)
A Conceptual Overview of Equal Protection	264	(7)
Basic Equal Protection Theory	264	(1)
Differential Treatment of Similarly Situated Classes	265	(2)
Tiers of Review and Levels of Scrutiny	267	(1)
``Suspectness'' and Heightened Scrutiny	268	(2)
Standards of Review and Means/Ends Analysis	270	(1)
Equal Protection and Heightened Scrutiny	271	(23)
Historical Overview	271	(2)
Race Discrimination: The Paradigm Suspect Classification	273	(2)
Other Classifications Meriting Heightened Scrutiny	275	(3)
Gender Discrimination and Intermediate Scrutiny	278	(2)
Sexual Orientation Discrimination and Rational-Basis-With-Bite Scrutiny	280	(2)
The Problem of Discriminatory Intent	282	(4)
Affirmative Action Programs	286	(5)
Strict Scrutiny for Classifications Infringing Fundamental Interests	291	(3)
A Comparison of Equal Protection and Due Process	294	(2)
Study Suggestions for Equal Protection	296	(3)
Due Process	299	(42)
The Content of the Due Process Clauses	299	(3)
The Various Types of Due Process	299	(1)
The ``Incorporated'' Content of Fourteenth Amendment Due Process	300	(2)
The Distinction Between Substantive Due Process and Procedural Due Process	302	(2)
Substantive Due Process: A Conceptual Overview	304	(18)
The Two Eras of Substantive Due Process	304	(3)
The Newer Era Cases: Contraception and Abortion	307	(4)
The Newer-Era Cases: Other Rights to Privacy	311	(2)
Fundamental Rights Analysis: An Introduction	313	(2)
Fundamental ``Rights'' vs. Fundamental ``Liberty Interests'' vs. Fundamental ``Values''	315	(3)
Levels of Generality (or Abstraction) in Fundamental Rights Analysis	318	(2)
Standards of Review for Substantive Due Process	320	(2)
Procedural Due Process: A Conceptual Overview	322	(9)
The Contours of Modern Procedural Due Process	322	(3)
Identifying ``Liberty'' and ``Property'' Interests	325	(2)
The ``Process'' That is ``Due''	327	(3)
The Vagueness Doctrine	330	(1)
Exercise No. 8: Differentiating Substantive Due Process, Procedural Due Process, and Equal Protection Claims (Skinner v. Oklahoma)	331	(7)
Study Suggestions	338	(3)
Freedom of Expression	341	(46)
Introduction to the First Amendment	341	(1)
A Conceptual Overview of Freedom of Expression	342	(7)
Predominant Themes	342	(3)
The Distinction Between Free Speech and Free Press	345	(1)
The Mass Media and Free Press	346	(3)
Analytical Techniques for Resolving Free Expression Problems	349	(9)
Overview	349	(1)
Non-Speech Techniques	350	(1)
Communicative Value	350	(3)
Communicative Capacity	353	(1)
Procedural Techniques	354	(1)
Overbreadth	354	(1)
Vagueness	355	(1)
Prior Restraints	356	(2)
Substantive Techniques	358	(1)
Content-Based Restrictions on Expression	358	(12)
Subversive Speech: Advocacy of Unlawful Action	358	(3)
Defamation	361	(2)
Strict Scrutiny Review	363	(2)
Viewpoint Discrimination and ``Strictest'' Scrutiny	365	(2)
Lesser Scrutiny Standards: Commercial Speech and Sexually Explicit Speech	367	(1)
Commercial Speech	368	(1)
Sexually Explicit Speech	369	(1)
Content-Neutral Restrictions on Speech	370	(6)
Overview	370	(4)
The Two Types of Standards for Content-Neutral Restrictions	374	(2)
The Varied Roles of Government Vis-a-Vis Free Expression	376	(5)
The Roles and Their Significance	376	(1)
Government as Speaker	376	(1)
Government as Subsidizer of Speech	377	(1)
Government as Employer	378	(1)
Government As Landowner: The Special Problem of the ``Public Forum''	379	(2)
Freedom of Association	381	(4)
Study Suggestions	385	(2)
Freedom of Religion	387	(24)
Protecting Freedom of Religion: An Overview	387	(2)
The Establishment Clause: A Conceptual Overview	389	(12)
In General	389	(2)
Religious Exercises, Symbols, and Displays	391	(1)
Government Aid for Private Religious Organizations or Activities	392	(3)
The Establishment Clause ``Tests''	395	(1)
The Lemon Test	395	(1)
The Endorsement Test	396	(1)
The Coercion Test	397	(1)
The Denominational Preference Test	397	(1)
The Original History Test	398	(1)
Ceremonial Deism	398	(2)
Applications of the Tests	400	(1)
The Free Exercise Clause: A Conceptual Overview	401	(4)
Identifying Burdens On Religious Belief or Practice	401	(1)
The Problem of Religiously Neutral Laws that Burden Religion	402	(2)
Basic Free Exercise Analysis	404	(1)
The Tension Between the Establishment and Free Exercise Clauses	405	(2)
Exercise No. 9: Differentiating Free Speech, Non-Establishment, and Free Exercise (Student Prayer Activities on Public School Grounds)	407	(2)
Study Suggestions	409	(2)
Alternative Sources of Individual Rights	411	(20)
An Overview of Other Rights That Supplement Federal Constitutional Rights	411	(2)
Federal Statutory Rights and Congress' Powers to Create Them	413	(2)
Overview	413	(1)
Federal Individual Rights Statutes	413	(1)
Congressional Powers to Create Individual Rights and Remedies: In General	414	(1)
Congress' Enforcement Powers	415	(4)
Enforcing Federal Individual Rights Statutes Against the States: The Sovereign Immunity Problem	419	(2)
State Constitutional Rights	421	(6)
Exercise No. 10: Alternative Sources of Law Applicable to National Origin Discrimination (The Exclusion of an Iraqi Guest from a Private Club)	427	(3)
Study Suggestions	430	(1)
Concluding Perspectives: The Integration of Constitutional Law	431	(20)
Introduction	431	(1)
The Litigation Process for Constitutional Issues	432	(3)
Constitutional Analysis and Its Components	435	(8)
Overview	435	(1)
The Use of Precedents (Component I)	436	(1)
The Use of Facts (Component II)	437	(1)
The Use of the Approaches to Interpretation (Component III)	438	(1)
The Use of Institutional and Legal Policy Considerations (Component IV)	438	(4)
Assembling the Components	442	(1)
The Process of Constitutional Interpretation: A Final Look	443	(5)
A Critique of the Four Approaches to Interpretation	443	(2)
Interrelating the Four Approaches to Interpretation	445	(1)
The Exercise of Judgment	446	(2)
The Integration of Constitutional Law	448	(3)
Appendix A Constitution of the United States of America	451	(16)
Appendix B Study and Learning Suggestions for Students in Constitutional Law Courses	467	(4)
Table of Cases	471	(10)
Table of Authorities	481	(8)
Subject Matter Index	489

Excerpts

"American Constitutional Law: An Overview, Analysis, and Integration is a clear and comprehensive presentation of the U.S. Constitution and U.S. constitutional law that is accessible to law students and lawyers as well as to graduate students and professionals in other disciplines that intersect with constitutional law. While developing and synthesizing the major doctrinal areas of constitutional law, William A. Kaplin elucidates the basic concepts, classical foundations, and first principles; the processes for interpreting the Constitution; and the analytical methodologies for applying individual clauses and cases to new situations. He also provides extensive background drawn from history, political science, and jurisprudence. In addition, the book contains substantial study guidance for students in law school courses and law-related graduate school courses, and for independent learners."--BOOK JACKET.