 | Summaries and Customer Reviews are supplied by Amazon.com "All readers interested in today's constitutional courts will profit from eavesdropping on this conversation."
—Judicature This collection of essays on constitutional law is designed to introduce the reader to the range of issues concerning constitutional theory that occupy the attention of constitutional scholars in the United States today. Average Customer Rating:  
Terrible Casebook
| Customer Rating: | | It's a casebook, so it's not supposed to be great reading, but this one is by far the worst casebook I've ever had. The only thing a casebook needs to do to achieve mediocrity is contain cases. This doesn't, not really. It gives you the cliff's notes of important cases. One sentence blurbs about others. And pages and pages of rambling, aimless, academic debate. It may be a good book for Con Law professors and others who have already read all of the cases discussed. For someone trying to learn con law, it is useless. It is also organized very poorly. Any class organized around this book is doomed from the start. If your professor uses this book, take another class. If you can't take another class, buy the Chemerinsky treatise and rely on that instead. Professors: DO NOT USE THIS BOOK. |
Excellent Structural Overview
| Customer Rating: | The objective of this text is to illustrate the role of the Supreme Court as one of three co-equal policy-making bodies in the U.S. government. It performs this function in an exemplary manner. The reason my professor chose the text is because of the flow and sequence of information and cases. The idea is to help students understand how the Supreme Court came to its current role in U.S. governmental structure. Specific details on cases, if students are interested in additional case text, are always available online. However, the purpose of the text never was to create a comprehensive text of casework, but rather, to create an understanding of the significant developments in the role and power of the Court. This is an excellent text.
Relevant History
The civil war began on April 12, 1861 when Confederate forces attacked a U.S. military installation at Fort Sumter in South Carolina. Lee surrendered to Grant at Appomattox Court House on April 9, 1865.
13th Amendment - abolition of slavery 1865
14th State and National citizenship 1868 (Amendment corrected the 1857 Dred Scott v Sandford case - Scott was not a citizen of Missouri within the meaning of the Constitution and not entitled to sue in its courts, p. 455)
15th Right to Vote not abridged by race 1870
19th Right to Vote not abridged by gender 1920
Preamble -
The U.S. government is a tripartite system - of three co-equal policy-making bodies. Court's power is its legitimacy; the persuasive power of logic in its arguments, stare decisis contributes to its legitimacy. We studied three cases where the Supreme Court overturned its previous decisions.
1954 Brown v. Board of Education (separate is inherently unequal) which overturned 1896 Plessy v. Ferguson (separate but equal is okay).
2004 Vieth v Jubelirer "We overrule that case (Brandemer) and decline to adjudicate these political gerrymandering claims." Davis v. Brandemer 1986, Supreme Court held that gerrymandering cases are justiciable, but could not agree on a standard to adjudicate them.
Week 1
Constitution Articles I - III, pp. xliii-1
Origins of the U.S. Constitution, pp. 8-14
1803 Marbury v. Madison, pp 29-42
Pg 35 - It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
1816 Martin v. Hunter's Lessee pp. 51-57 property Brit problem
1958 Cooper v. Aaron, pp 57-61 Arkansas failed to comply with district court order for desegregation, saying it would lead to undue violence and disorder and that those consequences justified disobedience of the decree.
The Supreme Court wrote:
Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitutional as the "Fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison "It is emphatically the province and duty of the judicial department to say what the law is. " This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensible feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution."
1819 McCullough v Maryland pp. 61-74 National Bank taxed locally.
Week 2 - Role of the Supreme Court
1869 Ex Parte McCradle, pp. 83-84 McCardle published articles in a newspaper in Mississippi; he was arrested under charges of libel, disturbing the peace; inciting insurrection, disorder, and violence. McCardle sought habeas corpus from MS federal court - Congress enacted while the case was pending, over a Presidential veto, a statute that repealed the provision of the 1867 habeas corpus act that McCardle had invoked.
"Case or Controversy" Requirement, pp. 89-105
1984 Allen V. Wright, p 92 - IRS did not deny tax exempt status to private schools that discriminated on the basis of race. Can't prove that this action impacted students in public schools.
1992 Lujan v Defenders of Wildlife p. 97- Endangered Species Act of 1973 (ESA) "Plaintiff must have suffered an "injury in fact" - could not prove that the absence of a species injured them.
An injury in fact - an invasion of a legally protected interest which is a concrete and particularized and "actual or imminent, not conjectural or hypothetical." There must be a causal relationship between the injury and the action complained of.
2004 Elk Gove Unified School District v. Newdow pp. 115-119 pledge of allegiance "under God constituted religious indoctrination in violation of the 1st Amendment - the Court of appeals agreed - The Supreme Court reversed the court of appeals, holding the Newdow lacked standing. Banning (child's mother) and Newdow disagree. Court will not intervene between them.
1962 Baker v. Carr pp. 119-124 -- apportionment - Plaintiffs claim their voting power was unconstitutionally diluted by the continued use of the 1901 apportionment. Substantial population growth and redistribution over the ensuring years meant that by 1961 districts contained dramatically different numbers of people - reversed and remanded.
Justice Brennan - "We hold that this challenge to an apportionment presents no nonjusticiable "political question." -- Extensive comments on the Guaranty Clause.
2004 Vieth v Jubelirer p 136- 144 -- Plaintiffs allege map drawn by Penn General Assembly establish dist for election of congressional pres constitutes unconstitutional gerrymandering. Davis v. Brandemer 1986, Supreme Court held that gerrymandering cases are justiciable, but could not agree on a standard to adjudicate them.
"We overrule that case (Brandemer) and decline to adjudicate these political gerrymandering claims."
2000 Bush v. Gore pp. 144-152 - voting challenge in Florida - p 145 "The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right.
The recount process ... is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.
The question before the court is not whether local entities, in the exercise of their expertise, may develop different systems for implement elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.
Questions of Timing, Ripeness and Mootness, pp. 158-159
Week 3 -- Federal ism at Work (pre-emption v concurrent state and federal jurisdiction) explicitly state in legislation that this preempts state laws or preempting the field, implicit federal control of a field of law.
1824 Gibbons v Ogden pp. 170-173 New York legislature granted Roberts Fulton and Livingston the exclusive right to operate steamboats in NY waters. Fulton and Livingston licensed Ogden to operate ferry between NY and NJ. Gibbons began operating ferries, licenses as "vessels in the coasting trade" under Congressional statute 1793. Congress has the constitutionally explicit exclusive right to regulate interstate commerce - Article 1, Section 8, "Congress shall have the power ... Para 3 "to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes."
1918 Hammer v. Dagenhart (Child Labor Case) pp.173-175 - In 1916, Congress responded to a decade-long lobbying effort by enacting the Child Labor Act - prohibiting the transport in interstate commerce of goods produced in factories employing children under the age of 14 or employing 14- to 16-year-olds more than 8 hours a day.
Justice Day says (P 174) "There is no power vested in Congress to require the States to exercise their police power so as to prevent unfair competition. The Commerce Clause was not intended to give to Congress a general authority to equalize such conditions ... if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end."
1942 Wickard v. Filburn, pp. 175-177 (Thou shalt not grow unauthorized wheat bushels) Filburn's Sec of Ag Adjustment Act quota was 222 bushels, but he grew 461. Most of his wheat, he used at home. He was penalized $117. He sued. Justice Jackson said "Home-grown wheat in this sense competes with wheat in commerce."
Evolution of Commerce Clause Doctrine, pp. 188-190, pp. 200-206, pp. 208-224
Week 4 - Federalism at Work, Continued
1981 Kassel v Consolidated Freightways Corp., pp 265-271 (the save our roads trucking law) Iowa prohibited the use of 65-foot doubles within its borders. Singles no longer than 55 feet and doubles no longer than 60 feet.
Survey says - States claims to increased safety proved statistically unsound. Justice Powell wrote, "Where, as here, the state's safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and safe interstate transportation, the state law cannot be harmonized with the Commerce Clause."
Taxation and Preemption pp. 273-277
Congressional Powers (Chapter III)
Tax and Spending Powers, pp. 279-296
1966 Katzenbach v. Morgan pp. 301-303 -- Literacy test for Puerto Ricans in New York violate the Equal Protection Clause.
1997 City of Boerne v Flores, pp. 306-310 -- Local zoning deny a church a building permit challenged under the Religious Freedom Restoration Act of 1993. Congress enacted RFRA in response to Court's decision in 1990 Dept of HR, Ore v Smith Free Exercise Clause claim brought by Native American Church members who were denied unemployment benefits because of peyote use. RFRA prohibits govt from substantially burdening a person's exercise of religion.
2001 Board of Trustees v Garrett, pp 312-318 - Title 1 of the Americans with Disabilities Act (ADA) prohibits certain employers, including State govts., from discriminating against otherwise qualified individuals with disabilities. Registered nurse Garrett required to give up high-level position while undergoing treatment for cancer. Justice Rehnquist said, "City of Boerne confirmed the long-settled principle that it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees.
Congressional enactment of the ADA represents its judgment there should be a "comprehensive national mandate for the elimination of discrimination against individuals with disabilities." In order to authorize private individuals to recover money damages against the state, there must be a pattern of discrimination by the States which violates the 14th Amendment and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here and to uphold the Act's application to the States would allow Congress to rewrite the 14th Amendment law laid down by this Court.
1920 Missouri v Holland pp. 330 - Missouri State bill to prevent game warden of the US from attempting to enforce the Migratory Bird Treaty Act of 1918 and Sec of Ag regs of the same. The ground of the bill is the statute is unconstitutional interference with the rights reserved for the States.
1992 NY v US, p 337 radioactive waste
1997 Printz v US, pp 348-351 Brady Act required Atty Gen establish national background check by Nov. 98. Could not and asked local law enforcement to do so. Court rejected the minimal and temporary burden on local law enforcement officials.
Week 5 - Separation of Powers
1952 Youngstown Sheet v Tube Co., pp. 361-369 - Pres. Truman issued order directing Secy Commerce to nationalize most of the U.S. steel mills. Justice Black said, "The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, fears of power, hopes of freedom that lay behind their choice. Such a review would but confirm our holding that this seizure cannot stand."
2004 Hamdi v Rumsfeld, pp. 383-394 - Justice O'Connor, "At this difficult time in our nation's history, we are called upon to consider the legality of the Govt's detention of a U.S. citizen on U.S. soil as an "enemy combatant." It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely test; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.
(p389) We have long since made clear that a state of war is not a black check for the President when it comes to the rights of the Nation's citizens (Youngstown Sheet v Tube). Hamdi asks us to hold that the 4th Circuit also erred by denying him immediate access to counsel upon his detention. He unquestionably has the right to access to counsel in connection with the proceedings on remand.
1974 U.S. v Nixon, p. 405 - reelection committee for Pres. Nixon broke into the Democratic National Committee HQ at Watergate Hotel on June 17, 1972. In support of his claim of privilege, Nixon argued there was a valid need to protect the confidentiality of comm. between high govt officials, and the privilege was implicit in the separation of powers. The Court recognized the legitimacy of the President's interest in confidentiality.
However this privilege applies only to his conduct of government business and not to all matters he might be involved in.
1983 INS v Chadha, p. 423-429 - Chada an East Indian born in Kenya holding a British passport was lawfully admitted to the US in 1966 and his visa expired on June 30, 1972. INS ordered him to show cause why he should not be deported. Immigration judge found he resided continuously in the U.S. for 7 years, was of good moral character and would suffer "extreme hardship" if deported. Dec. 12, 1975 Rep Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship and International Law submitted a resolution to grant LPR status to six aliens including Chadha. The House vetoed. Justice Burger said, "We hold the Congressional veto provision is unconstitutional."
1986 Bowsher v. Synar, p. 433-434 - Supreme Court in a 7-to-2 decision held the Gramm-Rudman-Hollings Act unconstitutional. The act mandated "automatic" across the board spending reductions in the federal budget under certain circumstances. Directors of OMB would estimate the amount of the federal deficit for the next fiscal year and budget reductions to meet the target. Justice Burger said, "To permit an officer controlled by the Congress to execute laws be, in essence, to permit a congressional veto.
1988 Morrison v. Olson, p. 435-442 - We hold today that these provisions of the (Ethics in Government) Act (of 1978) do not violate the Appointments Clause of the Constitution, Art. II, S. 2, cl. 2 or the limitations of Art. III.
Week 6 - Equality and the Constitution
1896 Plessy v. Ferguson, pp. 464-469 - Sued to have access to white dining car. Court finds that if the rail company offers "separate but equal" facilities, all is fine.
1954 Brown v Board of Education, pp. 471-475 - Overturns Plessy, determining that separate educational facilities are inherently unequal ... because of "those qualities which are incapable of objective measurement, but which make for greatness in a ... school."
To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. - Justice Warren.
1955 Brown v Board of Education (II), pp. 481-482 - Justice Warren continued, "The cases are remanded to the District courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially non-discriminatory basis with all deliberate speed.
1971 Dept of Ag v Moreno - not permitted to participate in food stamp program if living with unrelated individual (the shacking up ban or the anti-hippy law). Justice Brennan said, "The challenged statutory classification is clearly irrelevant (to a legitimate govt purpose).
1996 Romer v Evans, pp. 509, Colorado passes a law banning local municipal laws banning discrimination on the basis of sexual preference. Supreme Court finds the law unconstitutional.
Rational Basis Review, pp. 501-523 - must be rationally related to a legitimate government interest.
Week 7 - Equality and the Constitution (cont.)
Heighted Scrutiny, pp 523-531 (covers both intermediate scrutiny and strict scrutiny)
1880 Strauder v West Virginia, pp. 524 - Black man convicted of murder before an all white jury on which blacks were not permitted to stand. Strauder claimed his conviction by a jury chosen pursuant to this provision (no black jurors permitted) violated his 14th Amendment. Justice Strong agreed.
1944 Koremastu v U.S., p. 525 - Court supported USG decision to put Japanese-Americans in concentration camps saying the government had a compelling interest in national safety. Justice Black.
1967 Loving v Virginia - Chief Justice Warren strikes down a law intended to advance the government interest of "pure bloodlines" which forbids whites from marrying nonwhites. Warren uses rational basis theory and did not need to rise to strict scrutiny. "the statute served the legitimate state purpose of preserving the racial integrity of its citizens by preventing the corruption of the blood and the creation of a mongrel breed of citizens. Justice Warren said, "There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification."
Strict Scrutiny, pp. 542-558 - Narrowly tailored to a compelling government interest.
1987 McClesky v Kemp, pp 569-573 - African American convicted and sentenced to death argues discrimination based on the statistically disproportionate number of African Americans on death row. Court finds that disparate impact is not enough, but intend to discriminate must be proved. Since this case, many states have implemented automatic review procedures. Numerous research institutes have published repeatedly the scientific fact that there is a disparate impact in the U.S. courts and the number of Caucasians on death row have climbed proportionate to their minority counterparts even as the percentage of Caucasians has grown. Additionally, the percentage of blacks in American society is growing, while the proportion of blacks on death row has been declining. While not yet statistically appropriate, the system has been slowly correcting itself since this case, due to media coverage, pressure from NGOs and the decision of state legislatures to mandate automatic review of death row sentences.
1995 Adarand Constructors, Inc. v Pena, pp. 581-589 - Lowest bid on a government contract looses due to the idea that another contractor who subcontracted to minorities would be more likely to contribute to employment of historically poor and disadvantaged groups. Court finds the govt use of race is not sufficiently tailored to the cause. Justice O'Connor -- giving general contractors on government projects a financial incentive to hire subcontractors controlled by "socially and economically disadvantaged individuals," the govt's use of race-based presumptions in identifying such individuals violates the equal protection. We hold today that all racial classifications, imposed by whatever federal, state or local government actor must be analyzed by a reviewing court under strict scrutiny. Such classifications are constitutional only if they are narrowly tailored measures that further a compelling governmental interest. (583)
2003 Gutter v Bollinger, pp. 594-606 - Justice O'Connor, "This case requires us to decide whether the use of race as a factor in student admissions by the Univ of Michigan Law School is unlawful. Univ of Michigan claimed the benefits of considering race, among a range of other factors, gave substantial benefit to the classroom. "As the District Court emphasized, the Law School's Admissions policy promotes `cross-racial understanding,' helps to break down racial stereotypes, and enables students to better understand persons of different races. These benefits are `important and laudable,' because `classroom discussions are livelier, more spirited and simply more enlightening and interesting' when the students have the greatest possible variety of backgrounds."
To be narrowly tailored, a race-conscious admissions program cannot use a quota system - it cannot insulate each category of applicants from desired qualifications and competition of all other applicants.
Week 8 - Equality and the Constitution (cont)
Intermediate Scrutiny and Gender, pp. 622-634
1996 U.S. v Virginia, pp. 639-647 Permitted women into Virginia Military Institute for the first time in history. Justice O'Connor said Intermediate Scrutiny must have an important government interest with an "exceedingly persuasive justification" to permit segregation on the basis of gender.
The "problem" of Sexual Orientation, pp 666-689
Week 9 - Implied Fundamental Rights (required Rational Basis Review and/or Strict Scrutiny Review)
1873 The Slaughter-houses Cases, pp. 725-730 - monopoly on slaughtering ruled unconstitutional.
1968 Duncan v Louisianna, pp 739-740 - Jury trial is a fundamental right.
1905 Lochner v. New York, pp. 745-750 - Bakers have a right to contract - independence in contracting is a right.
Right to Procreate, pp. 768-771 - 1942 Skinner v Oklahoma, not authorized to sterilize 3x offending prisoners (for steeling chickens) 1927 Buck v Bell authorized sterilizing mentally ill patients, Justice said, "Three generations of imbeciles is enough."
1986 Davis v. Bandemer, pp. 798-799 gerrymandering (again!)
Access to the Judicial Process, pp. 806-808 1963 Douglas v CA - no access to counsel on appeal - unconstitutional, of course.
Travel, pp. 815-820 - 1969 Shapiro v Thomson (815) and 1999 Saenz v Roe (819) - not authorized welfare benefits for one year after arriving in a new state.
Education, pp. 830-843 - Education is not a fundamental right.
1973 San Antonio v Rodriguez, p. 830 - Disparities in school funding is a local right of states and voters. Congress will not mandate educational funding.
1982 Plyler v Doe, p. 838 - State cannot require tuition from undocumented alien children. Justice Brennan wrote, "Public education is not a "right" granted to individuals by the Constitution. But neither is it merely some governmental `benefit' indistinguishable from other forms of social welfare legislation."
Week 10 - Implied Fundamental Rights (cont)
Right of Privacy and 1965 Griswald v Connecticut, pp. 845-853 - The right use contraception.
1973 Roe v. Wade, pp. 857-863 - Abortion right
1992 Planned Parenthood v Casey, pp. 884-903 - Court determines that laws requiring women to tell parents, husbands, wait 24-hours put an undue burden on their decision-making process.
2000 Sternberg v. Carhart, pp. 904-916 - Nebraska banned D&E abortions, but did not put a limitation on the law that permitted procedures for the health and safety of the women, if, for example, continuing the pregnancy was dangerous to the woman's health/life.
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A Review
| Customer Rating: | | Book was fine, a little worse than they described but I don't mind the highlighting and writing inside so its fine. |
Awful, Horrible, Bad
| Customer Rating: | Content
The editing sucks. The notes suck. The case selection sucks.
Construction
This book shares the same physical problems that all Aspen casebooks suffer. The binding sucks. The book will not lay flat; the hump in the pages makes it hard to read, damn near impossible to underline. The paper is too thin, print shows through not only from the other side of the page, but from other pages below. The paper is an icky off white. The font is funky with awkward leading and hard to read. The margins are non-existent. Forget about writing in the book. The cover is cheaply made and wears poorly.
Compare to a University Casebook Series book which lies flatter, has wide margins, easy to read font and page layout, nice white paper, and excellent build quality.
UPDATE: By the end of the semester, no one in my class of over 60 was still reading this book. Don't waste your money buying, even if its assigned. Don't use this awful book.
Con law students, if you're assigned this awful book, here's what to do. Wikipedia has awesome summaries on con law cases, such as "Lochner v. New York" and "Roe v. Wade," and con law topics, such as "incorporation" and "substantive due process." Don't use this book. First, read wikipedia, then use what ever supplement is assigned or that you like (I liked Understanding Constitution Law from Lexis, but most students in my class liked the assigned Constitutional Law by Chemerinsky). If need be, you can look up a case on Lexis or Westlaw, and with the headnotes, jump to the relevant portion of the case. You don't need this book, and even if you buy it, after a couple of weeks you'll stop reading it.
Update II: Con Law II
Just finished Con Law II without touching this book. Didn't even bother bringing it to class. Just used Lexis during class if needed. |
buy the casenotes....
| Customer Rating: | Truly one of the worst law school books I've used so far. Everything the other (negative reviews) said was true. The author doesn't use footnotes, captions, endnotes, or offset text. No it is all just thrown together in one huge block of text on the page. The reading is nothing more than wading thru a morass of text which actually has no real bearing on the cases presented and doesn't add anything constructive to the understanding of the nuances of the case. horrible writing. Horrible editing. This book would be 1000% better if all supporting text was removed and nothing more than the bare cases were presented.
If you are a professor, don't use this book.
If you are a student, buy casenotes and only read the cases from this book. |
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