Constitutional Law : Principles and Policies

by Chemerinsky

• ISBN13: 9780735557871
• ISBN10: 073555787X
• Edition: 3rd
• Format: Nonspecific Binding
• Copyright: 2006-04-01
• Publisher: Wolters Kluwer

Summary

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)

Table of Contents

Preface	xxi
Acknowledgments	xxv
Historical Background and Contemporary Themes	1	(32)
The Constitution's Functions	1	(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 America	1269	(18)
Table of Cases	1287	(38)
Index	1325