The Oxford Introductions to U.S. Law Constitutional Law

by Dorf, Michael C.; Morrison, Trevor W.

• ISBN13: 9780195370034
• ISBN10: 0195370031
• Format: Paperback
• Copyright: 2010-10-07
• Publisher: Oxford University Press

Summary

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 Review	p. 11
What Is Judicial Review and What Purpose Does It Serve?	p. 12
What Does the Constitution Say about Judicial Review?	p. 21
Writtenness	p. 22
Supremacy	p. 26
Articles III and VI	p. 28
What Are the Practical Consequences of Judicial Review?	p. 31
Further Reading	p. 38
Constitutional Interpretation	p. 41
Judicial Restraint	p. 50
Natural Law and the Moral Reading	p. 52
Representation Reinforcement	p. 57
Originalism	p. 61
Eclecticism	p. 65
Further Reading	p. 68
Federalism	p. 69
The Benefits and Costs of Federalism	p. 71
Limits of Enumerated Powers	p. 78
Internal versus External Commerce	p. 79
Pretext	p. 81
Economic Activity	p. 82
"Etiquette" Limits on Federal Power	p. 84
Traditional Areas of State Sovereignty	p. 85
Commandeering	p. 86
Sovereign Immunity	p. 89
Clear Statement Rules	p. 91
Federalism-Based Limits on the States	p. 92
Further Reading	p. 93
Separation of Powers	p. 95
The Function of Separation of Powers	p. 97
Selected Themes in Separation of Powers Doctrine	p. 104
The Executive	p. 104
The Legislature	p. 117
The Judiciary	p. 119
Further Reading	p. 124
Equal Protection	p. 125
Slavery	p. 126
From Plessy to Brown	p. 128
Anti-Subordination or Color Blindness?	p. 134
Tiers of Scrutiny	p. 142
Purpose and Effect	p. 148
Is Equality an Empty Idea?	p. 150
Further Reading	p. 151
Enumerated Rights: The First Amendment	p. 153
Freedom of the Press	p. 157
Freedom of Speech	p. 159
Free Exercise of Religion	p. 171
No Establishment of Religion	p. 178
Further Reading	p. 185
Unenumerated Rights	p. 187
The Privileges or Immunities Clause	p. 191
The Lochner Era	p. 196
Incorporation of the Bill of Rights	p. 201
The Right of "Privacy"	p. 205
Further Reading	p. 215
Congressional Enforcement of Constitutional Rights	p. 217
The State Action Requirement	p. 218
Defining the Rights to be Enforced	p. 222
Enforcement as Deterrence and Prevention, within Limits	p. 228
Further Reading	p. 234
Beyond the Courts	p. 235
Index 241
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