Constitutional Law and Politics

by O'Brien, David M.

• ISBN13: 9780393970456
• ISBN10: 0393970450
• Edition: 3rd
• Format: Paperback
• Copyright: 1997-05-01
• Publisher: W W Norton & Co Inc

Table of Contents

ILLUSTRATIONS	xiii	(2)
PREFACE	xv	(4)
ACKNOWLEDGMENTS	xix
The United States Constitution and Amendments	3	(22)
Chapter 1. The Supreme Court, Judicial Review, and Constitutional Politics	25	(71)
HOW TO LOCATE DECISIONS OF THE SUPREME COURT	29	(1)
A. Establishing and Contesting the Power of Judicial Review	30	(41)
[Calder v. Bull]	31	(8)
CONSTITUTIONAL HISTORY: Decisions of the Supreme Court Overruled and Acts of Congress Held Unconstitutional, and State Laws and Municipal Ordinances Overturned, 1789-1996	39	(2)
James Kent's Introductory Law School Lecture in 1794	41	(3)
The Virginia and Kentucky Resolutions of 1798	44	(4)
Marbury v. Madison	48	(10)
Eakin v. Raub	58	(4)
President Jackson's Veto Message of 1832	62	(3)
President Roosevelt's Radio Broadcast, March 9, 1937	65	(6)
B. The Politics of Constitutional Interpretation	71	(25)
(1) The Text and Historical Context	77	(9)
(2) In and Beyond the Text	86	(10)
Chapter 2. Law and Politics in the Supreme Court: Jurisdiction and Decision-Making Process	96	(115)
A. Jurisdiction and Justiciable Controversies	97	(62)
FIGURE 2.1. Avenues of Appeal: The Two Main Routes to the Supreme Court.	99	(1)
[Frothingham v. Mellon]	100	(2)
FIGURE 2.2. Jurisdictional map of the U.S. courts of appeal and U.S. district courts.	102	(2)
CONSTITUTIONAL HISTORY: Major Legislation Affecting the Jurisdiction and Business of the Supreme Court	104	(2)
[Wyoming v. Oklahoma]	106	(2)
THE DEVELOPMENT OF LAW: Other Important Rulings on Standing	108	(2)
THE DEVELOPMENT OF LAW: Class Action Suits	110	(1)
INSIDE THE COURT: Standing and the Connecticut Birth Control Cases	111	(3)
[Luther v. Borden]	114	(1)
[Colegrove v. Green]	114	(1)
[Nixon v. United States]	115	(2)
INSIDE THE COURT: The Supreme Court's Reversal of Precedent in Historical Perspective	117	(4)
Flast v. Cohen	121	(9)
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc.	130	(5)
Lujan v. Defenders of Wildlife	135	(4)
Baker v. Carr	139	(14)
Goldwater v. Carter	153	(4)
IN COMPARATIVE PERSPECTIVE: The "European Model" of Constitutional Courts and Judicial Review	157	(2)
B. The Court's Docket and Screening Cases	159	(1)
CONSTITUTIONAL HISTORY: Figure 2.3. Docket and filings, 1800-1994.	160	(1)
C. The Rule of Four and Agenda Setting	160	(2)
D. Summarily Decided Cases	162	(1)
E. The Role of Oral Argument	163	(2)
F. Conference Deliberations	165	(3)
INSIDE THE COURT: On the Tentativeness of Votes and the Importance of Opinion Writing	168	(1)
G. Postconference Writing and Circulation of Opinions	168	(3)
CONSTITUTIONAL HISTORY: Figure 2.4. Opinion writing, 1937-1994.	170	(1)
H. Opinion Days and Communicating Decisions	171	(1)
I. The Impact of Supreme Court Decisions: Compliance and Implementation	172	(39)
INSIDE THE COURT: A 1989 Exchange of Memoranda on Opinion Assignments and Writing and Circulating Opinions	172	(5)
HOW TO LOCATE SUPREME COURT DECISIONS AND OTHER LAW-RELATED MATERIALS ON THE INTERNET	177	(10)
THE DEVELOPMENT OF LAW: Congress Reverses the Supreme Court--The Civil Rights Act of 1991	187	(4)
Linkletter v. Walker	191	(4)
Griffith v. Kentucky	195	(4)
Jaffree v. Board of School Commissioners of Mobile County	199	(2)
Commonwealth of Kentucky v. Jeffrey Wasson	201	(5)
THE DEVELOPMENT OF LAW: Other Recent State Supreme Court Decisions Declining to Follow the U.S. Supreme Court's Rulings	206	(5)
Chapter 3. Presidential Power, the Rule of Law, and Foreign Affairs	211	(65)
A. Office and Powers: The Two Presidencies	211	(4)
B. As Commander in Chief and in Foreign Affairs	215	(17)
CONSTITUTIONAL HISTORY: Alexander Hamilton, The Federalist, No. 70	217	(2)
United States v. Curtiss-Wright Corporation	219	(3)
Dames & Moore v. Regan	222	(6)
Sale v. Haitian Centers Council, Inc.	228	(4)
C. The Treaty-Making Power and Executive Independence	232	(14)
CONSTITUTIONAL HISTORY: Figure 3.1. Alternatives to treaties: The rise of executive agreements and arrangements	234	(1)
Missouri v. Holland	235	(2)
United States v. Pink	237	(3)
Goldwater v. Carter (reprise)	240	(1)
United States v. Alvarez-Machain	241	(3)
CONSTITUTIONAL HISTORY: The Treaty Reinterpretation Controversy	244	(2)
D. War-Making and Emergency Powers	246	(30)
CONSTITUTIONAL HISTORY: The State Department's Justification for President Johnson's War Efforts in Vietnam	250	(1)
The Prize Cases	250	(4)
Ex parte Milligan	254	(6)
Korematsu v. United States	260	(10)
War Powers Resolution	270	(6)
Chapter 4. The President as Chief Executive in Domestic Affairs	276	(126)
A. National Security and Inherent and Emergency Powers	277	(31)
[United States v. The Progressive, Inc.]	280	(1)
INSIDE THE COURT: The Argument for Inherent and Emergency Presidential Powers in "the Steel Seizure Case"	281	(1)
Youngstown Sheet & Tube Co. v. Sawyer	282	(17)
New York Times Co. v. United States	299	(9)
B. Appointment and Removal Powers	308	(52)
CONSTITUTIONAL HISTORY: Supreme Court Nominations Rejected, Postponed, or Withdrawn due to Senate Opposition	313	(1)
Myers v. United States	314	(12)
Humphrey's Executor v. United States	326	(3)
Bowsher v. Synar	329	(11)
Morrison v. Olson	340	(20)
C. Legislative Powers in the Administrative State	360	(25)
[Rust v. Sullivan]	362	(1)
Schechter Poultry Corporation v. United States	363	(7)
Industrial Union Department, AFL-CIO v. American Petroleum Institute	370	(3)
Immigration and Naturalization Service v. Chadha	373	(12)
D. Accountability and Immunities	385	(17)
CONSTITUTIONAL HISTORY: Unraveling the Watergate Affair	390	(1)
United States v. Nixon	391	(7)
Articles of Impeachment against President Richard M. Nixon Recommended by the House Judiciary Committee	398	(4)
Chapter 5. Congress: Membership, Immunities, and Investigatory Powers	402	(70)
A. Membership and Immunities	403	(32)
[U.S. Department of Commerce v. Montana]	405	(4)
Powell v. McCormack	409	(6)
U.S. Term Limits, Inc. v. Thornton	415	(8)
Gravel v. United States	423	(6)
Eastland v. United States Servicemen's Fund	429	(3)
Hutchinson v. Proxmire	432	(3)
B. Investigatory, Contempt, and Impeachment Powers	435	(37)
Watkins v. United States	439	(10)
Barenblatt v. United States	449	(7)
Gibson v. Florida Legislative Investigation Committee	456	(8)
Walter L. Nixon v. United States	464	(6)
CONSTITUTIONAL HISTORY: Impeachment Trials and Judicial Accountability	470	(2)
Chapter 6. Congress: Legislative, Taxing, and Spending Powers	472	(120)
CONSTITUTIONAL HISTORY: Formal Amendments and Methods of Amending the Constitution	474	(2)
CONSTITUTIONAL HISTORY: A Twenty-seventh Amendment after 203 years	476	(2)
A. The Classic View of Congress's Legislative Powers	478	(25)
McCulloch v. Maryland	483	(11)
Gibbons v. Ogden	494	(9)
B. From Legal Formalism to the New Deal Crisis	503	(16)
[Swift & Company v. United States]	506	(1)
[The Shreveport Rate Case]	507	(1)
[Carter v. Carter Coal Company]	508	(2)
United States v. E. C. Knight Company	510	(5)
Hammer v. Dagenhart	515	(4)
C. From the New Deal Crisis to the Administrative State	519	(57)
National Labor Relations Board v. Jones & Laughlin Steel Corporation	525	(6)
United States v. Darby Lumber Company	531	(4)
Wickard v. Filburn	535	(4)
Heart of Atlanta Motel, Inc. v. United States	539	(1)
Katzenbach v. McClung	539	(8)
United States v. Lopez	547	(14)
Seminole Tribe of Florida v. Florida	561	(12)
IN COMPARATIVE PERSPECTIVE: The European Court of Justice and the European Union	573	(3)
D. Taxing and Spending Powers	576	(16)
[Pollock v. Farmer's Loan and Trust Co.]	576	(4)
Steward Machine Co. v. Davis	580	(4)
United States v. Kahriger	584	(4)
South Dakota v. Dole	588	(4)
Chapter 7. The States and American Federalism	592	(119)
IN COMPARATIVE PERSPECTIVE: Federalism, Federations, and Confederations	599	(3)
A. States' Power over Commerce and Regulation	602	(36)
[Wyoming v. Oklahoma] (reprise)	606	(1)
THE DEVELOPMENT OF LAW: Federal Preemption of State and Local Laws	607	(2)
Cooley v. The Board of Wardens of the Port of Philadelphia	609	(5)
Southern Pacific Co. v. Arizona	614	(4)
Bibb v. Navajo Freight Lines, Inc.	618	(3)
Maine v. Taylor	621	(2)
Pennsylvania v. Nelson	623	(4)
THE DEVELOPMENT OF LAW: Other Rulings on State Regulation of Commerce in the Absence of Federal Legislation	627	(6)
THE DEVELOPMENT OF LAW: Other Rulings on State Regulatory Powers in Alleged Conflict with Federal Legislation	633	(5)
B. The Tenth Amendment and the States	638	(29)
[National League of Cities v. Usery]	638	(4)
[Gregory v. Ashcroft]	642	(3)
Garcia v. San Antonio Metropolitan Transit Authority	645	(15)
New York v. United States	660	(7)
C. Judicial Federalism	667	(30)
[Coleman v. Thompson]	669	(4)
Martin v. Hunter's Lessee	673	(5)
Cooper v. Aaron	678	(4)
Younger v. Harris	682	(5)
Stone v. Powell	687	(6)
Withrow v. Williams	693	(4)
D. State Courts and State Constitutional Law	697	(14)
Michigan v. Long	701	(5)
People v. P.J. Video, Inc.	706	(4)
Commonwealth of Kentucky v. Wasson (reprise)	710	(1)
Chapter 8. Representative Government, Voting Rights, and Electoral Politics	711	(134)
CONSTITUTIONAL HISTORY: Thomas Paine on the Right to Vote and Representative Government	713	(1)
A. Representative Government and the Franchise	714	(20)
CONSTITUTIONAL HISTORY: President Lyndon B. Johnson's Address to Congress on the Importance of Passing the Voting Rights Act of 1965, March 15, 1965	719	(2)
[Chisom v. Roemer]	721	(2)
South Carolina v. Katzenbach	723	(7)
THE DEVELOPMENT OF LAW: Other Rulings Interpreting the Voting Rights Act	730	(4)
B. Voting Rights and the Reappointment Revolution	734	(72)
THE DEVELOPMENT OF LAW: Rulings Extending the Principle of One Person, One Vote to Local Governments	737	(3)
THE DEVELOPMENT OF LAW: Judicial Standards in Reapportionment Cases	740	(2)
Gomillion v. Lightfoot	742	(2)
Baker v. Carr (reprise)	744	(1)
Wesberry v. Sanders	744	(8)
Reynolds v. Sims	752	(7)
Davis v. Bandemer	759	(13)
Shaw v. Reno	772	(6)
Miller v. Johnson	778	(9)
Bush v. Vera	787	(12)
Shaw v. Hunt	799	(6)
THE DEVELOPMENT OF LAW: Other Post-Shaw v. Reno Rulings on Racial Gerrymandering	805	(1)
C. Campaigns and Elections	806	(39)
IN COMPARATIVE PERSPECTIVE: Equal Voting Rights and the French Case of Feminine Quotas	808	(3)
[McCormick v. United States]	811	(2)
Buckley v. Valeo	813	(12)
Federal Election Commission v. National Conservative Political Action Committee (NCPAC) and Democratic Party of the United States v. National Conservative Political Action Committee (NCPAC)	825	(4)
Colorado Republican Federal Campaign Committee v. Federal Election Commission	829	(4)
THE DEVELOPMENT OF LAW: Other Rulings on Campaign Finance	833	(1)
Rutan v. Republican Party of Illinois	834	(8)
THE DEVELOPMENT OF LAW: Other Rulings on Campaigns and Elections	842	(3)
MEMBERS OF THE SUPREME COURT OF THE UNITED STATES	845	(4)
BIOGRAPHIES OF CURRENT JUSTICES	849	(6)
GLOSSARY	855	(6)
INDEX OF CASES	861	(8)
INDEX	869