The Oxford Introductions to U.S. Law Constitutional Law

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  • Format: Paperback
  • Copyright: 2010-10-07
  • Publisher: Oxford University Press

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The Oxford Introductions to U.S. Law: Constitutional Law presents an accessible introduction to the enduring topics of American constitutional law, including judicial review, methods of interpretation, federalism, separation of powers, equal protection, and individual liberties. One of the most important functions performed by the American Constitution and the more than two centuries' worth of cases interpreting it is the allocation of decision-making. Professor Dorf and Professor Morrison frame many of these constitutional debates with this question of authority. When should courts rule that the Constitution takes some issue outside of the domain of ordinary politics? Should courts referee disputes between the branches of the federal government? Should they referee disputes between the states and the national government? Using what standards? This introduction to American constitutional law critically examines the work of the Supreme Court of the United States, which has resolved thousands of constitutional controversies based on the shortest national constitution on the planet. The authors also look beyond the Supreme Court, exploring the arguments for and against judicial review and various versions of popular constitutionalism.

Author Biography

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. A graduate of Harvard College and Harvard Law School, Professor Dorf served as law clerk to Justice Anthony M. Kennedy of the Supreme Court of the United States and to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. He has written over fifty law review articles and several books on constitutional law and related subjects. In addition, he writes a bi-weekly column for FindLaw's Writ and is founder and editor of DorfonLaw.org. Professor Dorf serves on the editorial boards of Legal Theory and Political Science Quarterly.

Trevor W. Morrison is Professor of Law at Columbia Law School. He teaches and writes in the areas of constitutional law, federal courts, and national security law. Professor Morrison was on leave from Columbia in 2009 while serving in the White House as Associate Counsel to the President. Earlier in his career he was a law clerk to Judge Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit and to Justice Ruth Bader Ginsburg of the Supreme Court of the United States. He also served for two years in the U.S. Department of Justice, first in the Office of the Solicitor General and then in the Office of Legal Counsel. And he spent a year in private practice as an associate at Wilmer, Cutler & Pickering (now WilmerHale) in Washington, DC. Professor Morrison received a B.A. in history from the University of British Columbia and a J.D. from Columbia Law School. He is a member of the American Law Institute.

Table of Contents

Who Decides?p. 1
Judicial Reviewp. 11
What Is Judicial Review and What Purpose Does It Serve?p. 12
What Does the Constitution Say about Judicial Review?p. 21
Writtennessp. 22
Supremacyp. 26
Articles III and VIp. 28
What Are the Practical Consequences of Judicial Review?p. 31
Further Readingp. 38
Constitutional Interpretationp. 41
Judicial Restraintp. 50
Natural Law and the Moral Readingp. 52
Representation Reinforcementp. 57
Originalismp. 61
Eclecticismp. 65
Further Readingp. 68
Federalismp. 69
The Benefits and Costs of Federalismp. 71
Limits of Enumerated Powersp. 78
Internal versus External Commercep. 79
Pretextp. 81
Economic Activityp. 82
"Etiquette" Limits on Federal Powerp. 84
Traditional Areas of State Sovereigntyp. 85
Commandeeringp. 86
Sovereign Immunityp. 89
Clear Statement Rulesp. 91
Federalism-Based Limits on the Statesp. 92
Further Readingp. 93
Separation of Powersp. 95
The Function of Separation of Powersp. 97
Selected Themes in Separation of Powers Doctrinep. 104
The Executivep. 104
The Legislaturep. 117
The Judiciaryp. 119
Further Readingp. 124
Equal Protectionp. 125
Slaveryp. 126
From Plessy to Brownp. 128
Anti-Subordination or Color Blindness?p. 134
Tiers of Scrutinyp. 142
Purpose and Effectp. 148
Is Equality an Empty Idea?p. 150
Further Readingp. 151
Enumerated Rights: The First Amendmentp. 153
Freedom of the Pressp. 157
Freedom of Speechp. 159
Free Exercise of Religionp. 171
No Establishment of Religionp. 178
Further Readingp. 185
Unenumerated Rightsp. 187
The Privileges or Immunities Clausep. 191
The Lochner Erap. 196
Incorporation of the Bill of Rightsp. 201
The Right of "Privacy"p. 205
Further Readingp. 215
Congressional Enforcement of Constitutional Rightsp. 217
The State Action Requirementp. 218
Defining the Rights to be Enforcedp. 222
Enforcement as Deterrence and Prevention, within Limitsp. 228
Further Readingp. 234
Beyond the Courtsp. 235
Index 241
Table of Contents provided by Ingram. All Rights Reserved.

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