American Constitutional Law, Volume II

Ralph A. Rossum is Henry Salvatori Professor of American Constitutionalism at Claremont McKenna College. He earned his PhD from the University of Chicago and is the author of several books, including The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians (2011); Antonin Scalia’s Jurisprudence: Text and Tradition (2006); Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (2001); Congressional Control of the Judiciary: The Article III Option (1988); The American Founding: Politics, Statesmanship, and the Constitution (1981); Reverse Discrimination: The Constitutional Debate (1979); and The Politics of the Criminal Justice System: An Organizational Analysis (1978). He has served in the US Department of Justice as deputy director of its Bureau of Justice Statistics and as a board member of its National Institute of Corrections. He currently serves as a member of the California Advisory Committee, US Commission on Civil Rights.G. Alan Tarr is Board of Governors Professor Emeritus and the founder and former Director of the Center for State Constitutional Studies at Rutgers University in Camden, New Jersey. He received his doctorate from the University of Chicago. Professor Tarr is the author of several books, including Judicial Process and Judicial Policymaking (6th edition, 2013), Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (2012), Understanding State Constitutions (1998), and State Supreme Courts in State and Nation (1988). He is coeditor of the three-volume State Constitutions for the Twenty-First Century (2005), Constitutional Dynamics in Federal Systems: Subnational Perspectives (2012), Constitutional Origins, Structure, and Change in Federal Countries (2005), and several other volumes. Three times the recipient of fellowships from the National Endowment for the Humanities and more recently a Fulbright Fellow, Professor Tarr has served as a consultant to the US Department of State, the American Bar Association, the National Center for State Courts, and several state governments. He has lectured on American constitutionalism and federalism throughout the United States, as well as in Africa, Asia, Europe, North America, and South America.Vincent Phillip Muñoz is Tocqueville Associate Professor of Political Science and Director of the Program of Constitutional Studies at the University of Notre Dame. He received his BA from Claremont McKenna College, MA from Boston College, and Ph.D. from The Claremont Graduate School. Professor Muñoz is author of God and the Founders: Madison, Washington, and Jefferson (2009) and editor of Religious Liberty and the American Supreme Court: The Essential Cases and Documents (revised edition, 2015).

• PREFACE NOTE TO THE READER 1 INTERPRETATION OF THE CONSTITUTION Approaches to Constitutional Interpretation The Approaches in Perspective The Ends of the Constitution Constitutional Means to Constitutional Ends Notes Selected Readings 2 CONSTITUTIONAL ADJUDICATION The Justices of the Supreme Court The Supreme Court in the Federal Judicial System How Cases Get to the Supreme Court How the Supreme Court Decides Cases The Impact of Supreme Court Decisions Analyzing Supreme Court Decisions Notes Selected Readings 3 RIGHTS UNDER THE CONSTITUTION Rights and the Founding The Fourteenth Amendment Due Process and the Bill of Rights Rights During Wartime and Other Emergencies The Second Amendment Notes Selected Readings CASES Barron v. Baltimore (1833) Palko v. Connecticut (1937) Adamson v. California (1947) Duncan v. Louisiana (1968) Ex parte Milligan (1866) Korematsu v. United States (1944) Hamdi v. Rumsfeld (2004) Boumediene v. Bush (2008) District of Columbia v. Heller (2008) McDonald v. Chicago (2010) 4 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSE The Fourteenth Amendment The Evisceration (and Possible Recent Restoration?) of the Privileges or Immunities Clause Economic Regulation and the Rise of Substantive Due Process The Demise of Substantive Due Process in the Economic Realm Punitive Damages: An Exception to the Demise of Substantive Due Process in the Economic Realm? The Emergence of Substantive Due Process in the Civil Liberties Realm The Takings Clause Notes Selected Readings CASES The Slaughter-House Cases (1873) Munn v. Illinois (1877) Lochner v. New York (1905) West Coast Hotel Company v. Parrish (1937) Williamson v. Lee Optical Company (1955) State Farm Mutual Automobile Insurance Company v. Campbell (2003) United States v. Carolene Products Company (1938) Kelo v. City of New London (2005) Horne v. Department of Agriculture (2015) Nollan v. California Coastal Commission (1987) Lucas v. South Carolina Coastal Council (1992) Koontz v. St. Johns River Water Management District (2013) 5 FREEDOM OF SPEECH, PRESS, AND ASSOCIATION The Meaning of the First Amendment First Amendment Standards Political Expression The Regulation of Speech and Association Restraints on the Press Libel and the Invasion of Privacy Obscenity and Violence Conclusions Notes Selected Readings CASES Gitlow v. New York (1925) Schenck v. United States (1919) Dennis v. United States (1951) Brandenburg v. Ohio (1969) Holder v. Humanitarian Law Project (2010) Citizens United v. Federal Election Commission (2010) Texas v. Johnson (1989) R. A. V. v. City of St. Paul (1992) McCullen v. Coakley (2014) National Institute of Family and Life Advocates v. Becerra (2018) Janus v. American Federation of State, County, and Municipal Employees (2018) Minnesota Voters Alliance v. Mansky (2018) Near v. Minnesota (1931) New York Times Company v. United States (1971) Branzburg v. Hayes (1972) New York Times v. Sullivan (1964) Indianapolis Anti-Pornography Ordinance (1984) Brown v. Entertainment Merchants Association (2011) 6 FREEDOM OF RELIGION Establishment of Religion Free Exercise of Religion Reconciling the Religion Clauses Notes Selected Readings CASES Everson v. Board of Education (1947) School District of Abington Township v. Schempp (1963) Lemon v. Kurtzman (1971) Wallace v. Jaffree (1985) Lee v. Weisman (1992) McCreary County v. American Civil Liberties Union (2005) Van Orden v. Perry (2005) Rosenberger v. University of Virginia (1995) Zelman v. Simmons-Harris (2002) West Virginia Board of Education v. Barnette (1943) Sherbert v. Verner (1963) Employment Division, Department of Human Resources of Oregon v. Smith (1990) City of Boerne v. Flores, Archbishop of San Antonio (1997) Trinity Lutheran v. Comer (2017) Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) 7 CRIMINAL PROCEDURE The Ex Post Facto Clauses Search and Seizure Self-Incrimination and Coerced ConfessionsDue Process of Law The Right to Counsel The Insanity Defense The Entrapment Defense Trial by Jury The Right to a Speedy Trial The Right to Confrontation Plea Bargaining Bail and Pretrial Detention Cruel and Unusual Punishments Prisoners’ Rights Retroactive Application of Criminal Procedure Guarantees Basic Themes in the Court’s Criminal Procedure Decisions Notes Selected Readings CASES Stogner v. California (2003) Smith v. Doe (2003) Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002) Maryland v. King (2013) Olmstead v. United States (1928) Katz v. United States (1967) Carpenter v. United States (2018) Mapp v. Ohio (1961) Miranda v. Arizona (1966) Nix v. Williams (1984) Connecticut Department of Public Safety v. Doe (2003) Powell v. Alabama (1932) Gideon v. Wainwright (1963) Blakely v. Washington (2004) Michigan v. Bryant (2011) Gregg v. Georgia (1976) Kennedy v. Louisiana (2008) Roper v. Simmons (2005) Miller v. Alabama (2012) Harmelin v. Michigan (1991) Ewing v. California (2003) 8 THE EQUAL PROTECTION CLAUSE AND RACIAL DISCRIMINATION Race and the Founding Racial Desegregation Private Discrimination and the Concept of State Action Racial Discrimination in Jury Trials Racial Discrimination in Prisons Proof of Discrimination: Disparate Treatment Versus Disparate Impact Notes Selected Readings CASES Plessy v. Ferguson (1896) Brown v. Board of Education (1954) Bolling v. Sharpe (1954) Brown v. Board of Education (1955) Swann v. Charlotte-Mecklenburg Board of Education (1971) United States v. Fordice (1992) Missouri v. Jenkins (1995) Shelley v. Kraemer (1948) Moose Lodge No. 107 v. Irvis (1972) Georgia v. McCollum (1992) The Civil Rights Act of 1991 Ricci v. DeStefano (2009) 9 SUBSTANTIVE EQUAL PROTECTION The Two-Tier Approach The Development of an Intermediate Level of Review Suspect Classifications Fundamental Rights The Future of Equal-Protection Analysis Notes Selected Readings CASES Richmond v. J. A. Croson Company (1989) Adarand Constructors, Inc. v. Peña (1995) Grutter v. Bollinger (2003) Gratz v. Bollinger (2003) Parents Involved in Community Schools v. Seattle School District No. 1 (2007) Massachusetts Board of Retirement v. Murgia (1976) Frontiero v. Richardson (1973) United States v. Virginia (1996) Rostker v. Goldberg (1981) Shapiro v. Thompson (1969) San Antonio Independent School District v. Rodriguez (1973) 10 VOTING AND REPRESENTATION Equal Protection and the Right to Vote Race and Representation: The Fifteenth Amendment and the Voting Rights Act Notes Selected Readings CASES Wesberry v. Sanders (1964) Reynolds v. Sims (1964) Vieth v. Jubelirer (2004) Harper v. Virginia State Board of Elections (1966) Crawford v. Marion County Election Board (2008) Bush v. Gore (2000) Katzenbach v. Morgan (1966) Shaw v. Reno (1993) Shelby County v. Holder (2013) 11 THE RIGHT TO PRIVACY, PERSONAL AUTONOMY, AND DIGNITY The Constitutional Basis What the Right to Privacy Protects Qualifications on the Right to Privacy Personal Autonomy and the Right to Die Notes Selected Readings CASES Troxel v. Granville (2000) Griswold v. Connecticut (1965) Roe v. Wade (1973) Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) Gonzales v. Carhart (2007) Lawrence v. Texas (2003) Defense of Marriage Act of 1996 Obergefell v. Hodges (2015) Cruzan v. Director, Missouri Department of Health (1990) Washington v. Glucksberg (1997) Vacco v. Quill (1997) THE CONSTITUTION OF THE UNITED STATES OF AMERICA JUSTICES OF THE SUPREME COURT GLOSSARY OF COMMON LEGAL TERMS TABLE OF CASES

Praise for American Constitutional Law:"This casebook is ideal for undergraduate classes in constitutional law. The case selection thoughtfully balances the old and new; the editing of cases is done with precision and care. The editors’ introductory essays are models of clarity, organization, and focus on the crucial problems of constitutional interpretation. The essays are attentive to doctrinal details without losing sight of the Constitution as a whole. The supporting website provides a rich source of recent and earlier decisions that provide flexibility for instructors. American Constitutional Law is, in sum, the class of its class." G. Roger McDonald, John Jay College of Criminal Justice"These volumes are a sound, balanced introduction into the study of Constitutional Law. The abridged cases are substantive but still accessible to the average undergraduate student and provide a solid basis for gaining a foothold in the discipline and for generating vigorous discussion and debate on the case law."Darren Patrick Guerra, Biola University"An excellent set of volumes for teaching constitutional law to undergraduates. The approach is both scholarly and highly accessible. It is also organized in a way that gives instructors the flexibility to formulate their own approach to teaching constitutional law." Michael Zarkin, Westminster College"An excellent two-volume Constitutional Law case book with sophisticated introductions."Saul Brenner, University of North Carolina at Charlotte"Its greatest strengths are threefold. First, the case excerpts are ideal for undergraduate students who are being exposed to the reading of case law for the first time and who are not familiar with legal nomenclature. … The second great virtue of the book is that the introductory sections of each chapter, which precede the case law, succinctly summarize the law, history, and politics related to the cases that students are about to encounter. These introductions do an excellent job setting the context for the case law. … The third great virtue of the text is that the editors do as good a job as any constitutional law text tying the case law to what the framers of the constitutional provisions at issue had to say. This allows students to understand the original meaning of the Constitution in a way they might seldom appreciate with other textbooks that disregard or object to such approaches to constitutional law."Anthony A. Peacock, Utah State University