American Constitutional Law, Volume I

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 recently served 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).

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

• 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 THE JUDICIAL POWERThe Power of Judicial Review Externally Imposed Restraints on Judicial Review Court-Imposed Restraints on Judicial Review The Expanding Role of the Courts The Courts, Judicial Review, and the Problem of Legitimacy Notes Selected Reading CASESMarbury v. Madison (1803) Eakin v. Raub (1825) Cooper v. Aaron (1958) Plaut v. Spendthrift Farm, Inc. (1995) Ex parte McCardle (1869) Lujan v. Defenders of Wildlife (1992) Hein v. Freedom from Religion Foundation (2007) Luther v. Borden (1849) Baker v. Carr (1962) Nixon v. United States (1993) DeShaney v. Winnebago County Department of Social Services (1989) 4 THE LEGISLATIVE BRANCH The Scope of Congressional Power Powers That Facilitate Legislative Activity Nonlegislative Powers Safeguarding Legislative Power Conclusions Notes Selected Reading CASESMcCulloch v. Maryland (1819) Powell v. McCormack (1969) U.S. Term Limits, Inc. v. Thornton (1995) Gravel v. United States (1972) McGrain v. Daugherty (1927) Watkins v. United States (1957) Schechter Poultry Corporation v. United States (1935) Mistretta v. United States (1989) Immigration and Naturalization Service v. Chadha (1983) 5 THE EXECUTIVE BRANCHThe Aims of the Framers Grants of Power and Their Use Implied Powers Prerogative Powers Notes Selected Reading CASESNational Labor Relations Board v. Noel Canning ( 2014) Myers v. United States (1926) Morrison v. Olson (1988) United States v. Nixon (1974) Clinton v. Jones (1997) In re Neagle (1890) Youngstown Sheet & Tube Company v. Sawyer (1952) 6 WAR AND FOREIGN AFFAIRSThe Interbranch Distribution of Power The Foundation and Extent of the Foreign Affairs Power War and Individual Rights Notes Selected Reading CASESThe Prize Cases (1863) The War Powers Resolution (1973) Authorization for the Use of Force (2001) United States v. Curtiss-Wright Export Corporation (1936) Missouri v. Holland (1920) Medellin v. Texas (2008) Zivotofsky v. Kerry (2014) Ex parte Milligan (1866) Korematsu v. United States (1944) Trump v. Hawaii (2018) Ex parte Quirin (1942) Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (2001) Hamdi v. Rumsfeld (2004) Boumediene v. Bush (2008) 7 FEDERALISMFederalism and the Founding Federalism and the First Congress Federalism and the Marshall Court Federalism and Its Protection by Subsequent Courts The Post–Civil War Amendments and the Shifting of the Federal Balance Notes Selected Reading CASESThe Judiciary Act of 1789 Cohens v. Virginia (1821) Coyle v. Smith (1911) Baldwin v. Montana Fish and Game Commission (1978) Dred Scott v. Sandford (1857) Printz v. United States (1997) Murphy v. National Intercollegiate Athletic Association (2018) Alden v. Maine (1999) The Civil Rights Cases (1883) Jones v. Alfred H. Mayer Company (1968) 8 THE EXERCISE OF NATIONAL POWERThe Commerce Power The Taxing Power The Spending Power Limitations on National Power Notes Selected Reading CASESGibbons v. Ogden (1824) United States v. E. C. Knight Company (1895) Hammer v. Dagenhart (1918) National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) Wickard v. Filburn (1942) Heart of Atlanta Motel v. United States (1964) Garcia v. San Antonio Metropolitan Transit Authority (1985) United States v. Lopez (1995) Gonzales v. Raich (2005) United States v. Butler (1936) United States v. Kahriger (1953) South Dakota v. Dole (1987) 9 THE EXERCISE OF STATE POWERConstitutional Principles Preemption Negative Implications of the Commerce Clause State Regulation and the Modern Court The Role of the Court Notes Selected Reading CASESArizona v. United States (2012) Cooley v. Board of Wardens (1852) Southern Pacific Company v. Arizona (1945) Granholm v. Heald (2005) Comptroller of the Treasury of Maryland v. Wynne (2015) 10 THE CONSTITUTION OF NATIVE AMERICAN TRIBESNative American Tribes and the New Republic Tribal Sovereignty and the Marshall Trilogy Tribal Self-Determination Tribal Authority over Disposition of Lands Tribal Authority to Institute a Government Tribal Authority to Enter into Treaties Tribes and Their Relation to the States Tribal Authority to Administer Justice Tribal Authority to Engage in “Indian Gaming” The Continued Viability of the Canons of Construction of Federal Indian Law Notes Selected Reading CASESJohnson v. McIntosh (1823) Cherokee Nation v. Georgia (1831) Worcester v. Georgia (1832) United States v. Kagama (1886) Lone Wolf v. Hitchcock (1903) Public Law 280 (1953) United States v. Lara (2004) California v. Cabazon Band of Mission Indians (1987) Adoptive Couple v. Baby Girl (2013) 11 THE CONTRACT CLAUSEMarshall’s Expansion of the Contract Clause The Decline of the Contract Clause A Continued Relevance? Notes Selected Reading CASESFletcher v. Peck (1810) Dartmouth College v. Woodward (1819) Charles River Bridge Company v. Warren Bridge Company (1837) Home Building and Loan Association v. Blaisdell (1934) United States Trust Company v. New Jersey (1977) Sveen v. Melin (2018) 12 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSEThe 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 Reading CASESThe 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) Nollan v. California Coastal Commission (1987) Lucas v. South Carolina Coastal Council (1992) Koontz v. St. Johns River Water Management District (2013) THE CONSTITUTION OF THE UNITED STATES OF AMERICAJUSTICES OF THE SUPREME COURT GLOSSARY OF COMMON LEGAL TERMS TABLE OF CASES