Contents
Acknowledgments xi
Introduction 1
1. Some Foundational Ideas 3
A Functional Definition of Law 3
The Special Nature of Constitutional Law 4
Sometimes 9-0, Sometimes 5-4 6
2. The Constitution and Its Amendments: An Overview 10
Framing, Debating, and Ratifying the Constitution 10
The Constitution: How Successful? How Democratic? 19
The Basic Structure 24
Proposing and Ratifying the Bill of Rights 26
A Brief Summary of the Bill of Rights 29
The Ninth and Tenth Amendments 31
The Other Seventeen Amendments 34
The Eleventh Amendment and Sovereign Immunity 35
The Thirteenth and Fifteenth Amendments 39
3. The Fourteenth Amendment 42
The Text 42
Proposal and Ratification 43
The Privileges and Immunities Clause 45
The Equal Protection Clause 47
Procedural Due Process 51
Substantive Due Process: The Incorporation Debate 53
The Meaning of Liberty in the Due Process Clause 55
Substantive Due Process and Federalism 60
Enforcing the Fourteenth Amendment 62
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4. The Supreme Court in the Constitutional Structure 64
Debating the Judiciary at the Constitutional Convention 64
Article III: Defining the National Judicial Power 66
Political Controls on the “Independent” Judiciary 71
Marbury v. Madison and the Start of Judicial Review 75
Martin v. Hunter’s Lessee and the Supremacy Clause 77
From Judicial Review to Judicial Supremacy 79
The Isolated Branch 84
Choosing Supreme Court Justices 85
Should Supreme Court Justices Have Life Tenure? 88
How the Court and Congress Talk to Each Other 89
5. What the Court Does: The Stuff of Judicial Review 92
Overseeing the Constitutional Structure 92
Protecting Individual Rights 107
Regulating the Democratic Process 119
The Court’s Place in Our National Life 121
6. The Federal Judicial System 127
Federal Jurisdiction 127
The Federal Judicial Structure 129
The Role of the Lower Courts in Constitutional Law 131
7. Life on the Court 134
The Work Environment 134
Ethical Standards for Supreme Court Justices 137
The Effect of Personality 139
8. The Litigation Process: From Complaint to
Supreme Court Opinion 144
How Cases Begin 144
Deciding What Cases to Hear 147
Hearing the Case and Reaching a Decision 151
Nine Separate Law Firms? Not Always 160
The Different Meanings of Victory 163
Contents
Contents
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9. The Toolbox for Judicial Decision Making 166
Some Opening Thoughts 166
Justice Brandeis and the Problem of Objectivity 168
The Impact of Life Experiences 170
The Building Blocks of Constitutional Meaning 172
The Role of Precedent 180
The Unwritten Constitution 187
10. Crafting a Constitution 189
Nine Perspectives 189
Analyzing the Debate 193
Originalism and the Moral Reading 199
11. The Court in Action: Contemporary Constitutional Controversies 203
The Establishment Clause and the Ten Commandments 203
The Equal Protection Clause and Affirmative Action 210
Campaign Finance Reform and Free Speech 216
Abortion and the Constitution 223
One Person–One Vote 228
Does the Government Have a Duty to Protect Us from Each Other? 236
Conclusion 242
Appendix 1: Major 5–4 Constitutional Law Decisions, 1869–1999 249
Appendix 2: Major 5–4 Constitutional Law Decisions, 2000–2011 254
Notes 265
Suggestions for Further Reading 285
Index 291