Constitutional Law: Principles And Policies

Front Matter
	Editorial Advisors
	Title Page
	Copyright Page
	About Wolters Kluwer Legal & Regulatory U.S.
	Dedication
	Summary of Contents
	Contents
	Preface
	Acknowledgments
Chapter 1: Historical Background and Contemporary Themes
	§1.1 The Constitution’s Functions
	§1.2 Why a Constitution?
	§1.3 A Brief History of the Creation and Ratification of the Constitution and Its Amendments
	§1.4 How Should the Constitution Be Interpreted?
	§1.5 Who Should Be the Authoritative Interpreter of the Constitution?
Chapter 2: The Federal Judicial Power
	§2.1 Introduction
	§2.2 The Authority for Judicial Review
		§2.2.1 Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential Actions
		§2.2.2 The Authority for Judicial Review of State and Local Actions
	§2.3 Introduction to the Justiciability Doctrines
	§2.4 The Prohibition Against Advisory Opinions
	§2.5 Standing
		§2.5.1 Introduction
		§2.5.2 Injury
		§2.5.3 Causation and Redressability
		§2.5.4 The Limitation on Third-Party Standing
		§2.5.5 The Prohibition Against Generalized Grievances
		§2.5.6 The Requirement That the Plaintiff Be Within the Zone of Interests Protected by the Statute
	§2.6 Ripeness
		§2.6.1 Introduction
		§2.6.2 Criteria for Determining Ripeness: The Hardship to Denying Review
		§2.6.3 Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review
	§2.7 Mootness
		§2.7.1 Description of the Mootness Doctrine
		§2.7.2 Exceptions to the Mootness Doctrine: Collateral Consequences
		§2.7.3 Exceptions to the Mootness Doctrine: Wrongs Capable of Repetition Yet Evading Review
		§2.7.4 Exceptions to the Mootness Doctrine: Voluntary Cessation
		§2.7.5 Exceptions to the Mootness Doctrine: Class Actions
	§2.8 The Political Question Doctrine
		§2.8.1 What Is the Political Question Doctrine?
		§2.8.2 Should There Be a Political Question Doctrine?
		§2.8.3 The “Republican Form of Government” Clause and Judicial Review of the Electoral Process
		§2.8.4 Foreign Policy
		§2.8.5 Congressional Self-Governance
		§2.8.6 The Process for Ratifying Constitutional Amendments
		§2.8.7 Excessive Interference with Coordinate Branches of Government
		§2.8.8 Impeachment and Removal from Office: Nixon v. United States
	§2.9 Congressional Control of Federal Court Jurisdiction
		§2.9.1 Introduction
		§2.9.2 Congressional Control of Supreme Court Jurisdiction
		§2.9.3 Congressional Control of Lower Federal Court Jurisdiction
	§2.10 Sovereign Immunity as a Limit on the Federal Judicial Power
		§2.10.1 History of the Ratification of the Eleventh Amendment
		§2.10.2 What Does the Eleventh Amendment Mean?
		§2.10.3 The Application of the Eleventh Amendment: What’s Barred and What’s Allowed
		§2.10.4 Ways Around the Eleventh Amendment: Suits Against State Officers
		§2.10.5 Ways Around the Eleventh Amendment: Waiver
		§2.10.6 Ways Around the Eleventh Amendment: Suits Pursuant to Federal Laws
Chapter 3: The Federal Legislative Power
	§3.1 The Doctrine of Limited Federal Legislative Authority
	§3.2 McCulloch v. Maryland and the Scope of Congressional Powers
	§3.3 The Necessary and Proper Clause
	§3.4 The Commerce Power
		§3.4.1 Introduction to the Commerce Power
		§3.4.2 Gibbons v. Ogden and the Definition of the Commerce Power
		§3.4.3 The Commerce Clause Before 1937
		§3.4.4 The Commerce Clause from 1937 to 1995
		§3.4.5 The Commerce Clause After United States v. Lopez
	§3.5 The Taxing and Spending Power
		§3.5.1 The Scope of the Taxing and Spending Power
		§3.5.2 The Taxing Power
		§3.5.3 The Spending Power
	§3.6 Other Congressional Powers Under Article I and Article IV
		§3.6.1 Foreign Policy
		§3.6.2 Domestic Affairs
	§3.7 Congress’s Powers Under the Reconstruction-Era Amendments
		§3.7.1 May Congress Regulate Private Conduct?
		§3.7.2 What Is the Scope of Congress’s Power?
	§3.8 Congress’s Power to Authorize Suits Against State Governments
	§3.9 Congress’s Power to Investigate
	§3.10 The Tenth Amendment and Federalism as a Limit on Congressional Authority
	§3.11 Delegation of Legislative Power and the Problems of the Administrative State
		§3.11.1 The Nondelegation Doctrine and Its Demise
		§3.11.2 The Legislative Veto
		§3.11.3 Delegation of Executive Power to Congress and Its Officials
Chapter 4: The Federal Executive Power
	§4.1 Express and Inherent Presidential Powers
	§4.2 Appointment and Removal Power
		§4.2.1 The Appointment Power
		§4.2.2 The Removal Power
	§4.3 Executive Privilege
	§4.4 Presidential Immunity to Criminal and Civil Suits
	§4.5 Pardon Power
	§4.6 Foreign Policy
		§4.6.1 Are Foreign Policy and Domestic Affairs Different?
		§4.6.2 Treaties and Executive Agreements
		§4.6.3 War Powers
		§4.6.4 Presidential Power and the War on Terrorism
		§4.6.5 Presidential Power and Immigration
	§4.7 Impeachment and Removal from Office
Chapter 5: Limits on State Regulatory and Taxing Power
	§5.1 Introduction
	§5.2 Preemption of State and Local Laws
		§5.2.1 Introduction
		§5.2.2 Express Preemption of State Laws
		§5.2.3 “Field Preemption”
		§5.2.4 Conflicts Between State and Federal Laws
		§5.2.5 State Laws That Impede Achievement of Federal Objectives
		§5.2.6 Preemption of State Taxation or Regulation of the Federal Government
	§5.3 The Dormant Commerce Clause
		§5.3.1 What Is the Dormant Commerce Clause?
		§5.3.2 Should There Be a Dormant Commerce Clause?
		§5.3.3 An Overview of the Dormant Commerce Clause
		§5.3.4 The Central Question: Is the State Discriminating Against Out-of-Staters?
		§5.3.5 The Analysis When a State Is Not Discriminating
		§5.3.6 The Analysis When a State Is Discriminating
		§5.3.7 Exceptions
	§5.4 State Taxation of Interstate Commerce
		§5.4.1 The Test Used to Evaluate State Taxes of Interstate Commerce
		§5.4.2 The Requirement for a Substantial Nexus to the Taxing State
		§5.4.3 The Requirement for Fair Apportionment
		§5.4.4 The Prohibition of Discrimination Against Out-of-Staters
		§5.4.5 The Requirement for Fair Relationship to Services Provided by the State
	§5.5 The Privileges and Immunities Clause of Article IV, §2
		§5.5.1 Introduction
		§5.5.2 What Are the “Privileges and Immunities” of Citizenship?
		§5.5.3 What Is Sufficient Justification for Discrimination?
Chapter 6: The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
	§6.1 Introduction
	§6.2 Textual Provisions, Apart from the Bill of Rights, Protecting Individual Rights
		§6.2.1 A Review of the Textual Provisions Protecting Rights
		§6.2.2 The Prohibition of Bills of Attainder
		§6.2.3 The Prohibition Against Ex Post Facto Laws
	§6.3 The Application of the Bill of Rights to the States
		§6.3.1 The Rejection of Application Before the Civil War
		§6.3.2 A False Start: The Privileges or Immunities Clause and the Slaughter-House Cases
		§6.3.3 The Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment
	§6.4 The Application of Civil Rights and Civil Liberties to Private Conduct: The State Action Doctrine
		§6.4.1 The Requirement for State Action
		§6.4.2 Why Have a State Action Requirement?
		§6.4.3 Is It the Government?
		§6.4.4 The Exceptions to the State Action Doctrine
	§6.5 The Levels of Scrutiny
Chapter 7: Procedural Due Process
	§7.1 The Distinction Between Procedural and Substantive Due Process
	§7.2 What Is a “Deprivation”?
	§7.3 Is It a Deprivation of “Life, Liberty, or Property”?
		§7.3.1 The “Rights-Privileges” Distinction and Its Demise
		§7.3.2 Deprivations of “Property”
		§7.3.3 Deprivations of “Liberty”
		§7.3.4 Deprivations of “Life”
	§7.4 What Procedures Are Required?
		§7.4.1 When Is Procedural Due Process Required?
		§7.4.2 What Is the Test for Determining What Process Is Due?
		§7.4.3 The Mathews v. Eldridge Test Applied
Chapter 8: Economic Liberties
	§8.1 Introduction
	§8.2 Economic Substantive Due Process
		§8.2.1 Economic Substantive Due Process During the Nineteenth Century
		§8.2.2 Economic Substantive Due Process During the Lochner Era
		§8.2.3 Economic Substantive Due Process Since 1937
	§8.3 The Contracts Clause
		§8.3.1 Introduction
		§8.3.2 The Contracts Clause Before 1934
		§8.3.3 The Contracts Clause Since 1934
	§8.4 The Takings Clause
		§8.4.1 Introduction
		§8.4.2 What Is a “Taking”?
		§8.4.3 What Is “Property”?
		§8.4.4 What Is a Taking for “Public Use”?
		§8.4.5 What Is the Requirement for “Just Compensation”?
Chapter 9: Equal Protection
	§9.1 Introduction
		§9.1.1 Constitutional Provisions Concerning Equal Protection
		§9.1.2 A Framework for Equal Protection Analysis
	§9.2 The Rational Basis Test
		§9.2.1 Introduction
		§9.2.2 The Requirement for a “Legitimate Purpose”
		§9.2.3 The Requirement for a “Reasonable Relationship”
	§9.3 Classifications Based on Race and National Origin
		§9.3.1 Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments
		§9.3.2 Strict Scrutiny for Discrimination Based on Race and National Origin
		§9.3.3 Proving the Existence of a Race or National Origin Classification
		§9.3.4 Remedies: The Problem of School Segregation
		§9.3.5 Racial Classifications Benefiting Minorities
	§9.4 Gender Classifications
		§9.4.1 The Level of Scrutiny
		§9.4.2 Proving the Existence of a Gender Classification
		§9.4.3 Gender Classifications Benefiting Women
	§9.5 Alienage Classifications
		§9.5.1 Introduction
		§9.5.2 Strict Scrutiny as the General Rule
		§9.5.3 Alienage Classifications Related to Self-Government and the Democratic Process
		§9.5.4 Congressionally Approved Discrimination
		§9.5.5 Undocumented Aliens and Equal Protection
	§9.6 Discrimination Against Nonmarital Children
	§9.7 Other Types of Discrimination: Rational Basis Review
		§9.7.1 Age Classifications
		§9.7.2 Discrimination Based on Disability
		§9.7.3 Wealth Discrimination
		§9.7.4 Discrimination Based on Sexual Orientation
Chapter 10: Fundamental Rights
	§10.1 Introduction
		§10.1.1 Constitutional Bases for Fundamental Rights
		§10.1.2 Framework for Analyzing Fundamental Rights
	§10.2 Constitutional Protection for Family Autonomy
		§10.2.1 The Right to Marry
		§10.2.2 The Right to Custody of One’s Children
		§10.2.3 The Right to Keep the Family Together
		§10.2.4 The Right to Control Upbringing of Children
	§10.3 Constitutional Protection for Reproductive Autonomy
	§10.3.1 The Right to Procreate
		§10.3.2 The Right to Purchase and Use Contraceptives
		§10.3.3 The Right to Abortion
	§10.4 Constitutional Protection for Sexual Activity and Sexual Orientation
	§10.5 Constitutional Protection for Medical Care Decisions
	§10.6 Constitutional Protection for Control over Information
	§10.7 Constitutional Protection for Travel
		§10.7.1 The Recognition of the Right to Travel as a Fundamental Right
		§10.7.2 What Constitutes an Infringement of the Right to Travel?
		§10.7.3 Restrictions on Foreign Travel
	§10.8 Constitutional Protection for Voting
		§10.8.1 The Right to Vote as a Fundamental Right
		§10.8.2 Restrictions on the Ability to Vote
		§10.8.3 Dilution of the Right to Vote
		§10.8.4 Inequalities in Counting Votes Within a State
		§10.8.5 Racial Discrimination in Voting Rights
		§10.8.6 Restrictions on Parties and Candidates
	§10.9 Constitutional Protection for Access to Courts
	§10.10 The Second Amendment Right to Bear Arms
	§10.11 Constitutional Protection for a Right to Education
Chapter 11: First Amendment: Expression
	§11.1 Introduction
		§11.1.1 Historical Background
		§11.1.2 Why Should Freedom of Speech Be a Fundamental Right?
		§11.1.3 The Issues in Free Expression Analysis
	§11.2 Free Speech Methodology
		§11.2.1 The Distinction Between Content-Based and Content-Neutral Laws
		§11.2.2 Vagueness and Overbreadth
		§11.2.3 Prior Restraints
		§11.2.4 What Is an Infringement of Freedom of Speech?
		§11.2.5 Government Speech
	§11.3 Types of Unprotected and Less Protected Speech
		§11.3.1 Introduction
		§11.3.2 Incitement of Illegal Activity
		§11.3.3 Fighting Words, the Hostile Audience, and the Problem of Racist Speech
		§11.3.4 Sexually Oriented Speech
		§11.3.5 Reputation, Privacy, Publicity, and the First Amendment: Torts and the First Amendment
		§11.3.6 Symbolic Speech: Conduct That Communicates
		§11.3.7 Commercial Speech
		§11.3.8 Speech of Government Employees
		§11.3.9 Attorneys’ Speech
		§11.3.10 Labor Picketing and Protests
	§11.4 What Places Are Available for Speech?
		§11.4.1 Introduction
		§11.4.2 Government Properties and Speech
		§11.4.3 Private Property and Speech
		§11.4.4 Speech in Authoritarian Environments: Military, Prisons, and Schools
	§11.5 Freedom of Association
		§11.5.1 Introduction
		§11.5.2 Laws Prohibiting or Punishing Membership
		§11.5.3 Laws Requiring Disclosure of Membership
		§11.5.4 Laws Prohibiting Discrimination
	§11.6 Freedom of the Press
		§11.6.1 Introduction
		§11.6.2 Freedom of the Press as a Shield to Protect the Press from the Government
		§11.6.3 Freedom of the Press as a Sword to Gain Access to Government Places and Papers
Chapter 12: First Amendment: Religion
	§12.1 Introduction
		§12.1.1 Constitutional Provisions Concerning Religion and the Tension Between Them
		§12.1.2 What Is Religion?
	§12.2 The Establishment Clause
		§12.2.1 Competing Theories of the Establishment Clause
		§12.2.2 Government Discrimination Among Religions
		§12.2.3 The Lemon Test for the Establishment Clause
		§12.2.4 Religious Speech and the First Amendment
		§12.2.5 When Can Religion Become a Part of Government Activities?
		§12.2.6 When Can Government Give Aid to Religion?
	§12.3 The Free Exercise Clause
		§12.3.1 Introduction
		§12.3.2 Challenges to Laws Regulating or Burdening Religious Conduct
		§12.3.3 Government Involvement in Religious Disputes
Appendix: The Constitution of the United States of America
Table of Cases
Index