The Dynamic Constitution An Introduction to American Constitutional Law and Practice, 2nd Edition

Author: Richard H. Fallon, Jr
Publisher: Cambridge University Press
ISBN: 9781107642577
Published In: April 2013
Format: Paperback , 428 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, Second Edition, combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics.

• Provides an engaging, sophisticated introduction to American Constitutional Law, suitable for lawyers and non-lawyers alike

• Describes in detail how the Supreme Court addresses particular topical issues, including freedom of speech, equal protection, the death penalty, privacy and sexual autonomy

• Puts Supreme Court decision-making in historical and political context and explains how cultural, political and economic currents help drive the evolution of Constitutional law • Provides a framework within which to think about currently debated constitutional case issues and about the role of the Supreme Court in resolving them

Preface to the Second Edition	xi
Preface to the First Edition	xv
Prologue: The Affordable Care Act and Other Vignettes	xix
Introduction: The Dynamic Constitution	1
History	2
Original Constitutional Design	5
The Constitution as Higher Law: Foundations of Judicial Review	10
A Marbury v. Madison: An Enduring Symbol of Judicial Power	12
Politics and Judicial Review	17
A Preliminary Perspective on How the Supreme Court Interprets the Constitution	19
A Brief History of Judicial Review	24
The Supreme Court Today	33
An Outline of What Is to Come	37
Part I: Individual Rights under the Constitution
1. Freedom of Speech	41
The Foundations of Modern Doctrine	42
Proximate Origins of Modern Doctrine	44
Expressive Conduct	54
Shocking and Offensive Speech	58
Remaining Unprotected Categories, Including Obscenity	59
Commercial Speech	63
Campaign Finance and Political Advertising	66
The Broadcast Media	71
Freedom to Associate and Not to Associate	73
Concluding Note	76
2. Freedom of Religion	77
Introduction to the Establishment Clause	79
Religion in the Public Schools	82
Governmental Aid to Religious Institutions	85
Symbolic Support for Religion	89
The Free Exercise Clause	92
Voluntary Governmental Accommodations of Religion	97
Tensions between the Free Exercise and Establishment Clauses	98
3. Protection of Economic Liberties	101
Early History	105
The Fourteenth Amendment	108
Substantive Due Process	111
Modern Contracts Clause Doctrine	118
The Takings Clause	119
Concluding Thoughts	123
4. Fundamental Rights “Enumerated” in the Bill of Rights	125
Incorporation of the Bill of Rights against the States	127
Enumerated Rights to Fair Procedures in Criminal Cases	130
Time, Elections, and Change	134
The Law on the Books versus the Law in Practice	135
The Eighth Amendment Prohibition against Cruel and Unusual Punishment	138
The Second Amendment and the “Right to Keep and Bear Arms”	143
5. Equal Protection of the Laws	149
Equal Protection and the Constitution	152
Rational Basis Review	156
Race and the Constitution: Invidious Discrimination	159
What Did Brown Accomplish?	168
Race and the Constitution: Disparate Impact	169
Affirmative Action	171
Gender and the Constitution	179
Discrimination against Gays and Lesbians	184
Conclusion	188
6. “Unenumerated” Fundamental Rights	191
The Idea of Fundamental Rights	193
Voting Rights: A Conceptual Introduction	195
Voting Rights: The “One-Person, One-Vote” Cases	196
Beyond One Person, One Vote	198
Majority-Minority Districting	201
Equality in the Counting of Votes	203
Sexual Privacy or Autonomy	207
Roe v. Wade and Abortion Rights	209
Gay Rights	214
Rights Involving Death and Dying	219
Fundamental Rights Involving the Family	221
Conclusion	223
Part II: The Constitutional Separation of Powers
7. The Powers of Congress	227
Elements of the “Original Understanding”	230
Doctrinal and Conceptual History	234
Crisis and Revision	236
A Course Correction of Uncertain Scope	238
The Necessary and Proper Clause	242
The Spending Power	243
Congressional Regulation of State and Local Governments	245
Coercion through Spending	248
Concluding Thoughts	251
8. Executive Power	253
The Youngstown Case	256
Foreign Affairs	260
Delegated Power in Domestic Affairs	263
Legislative Vetoes and Line-Item Vetoes	266
Appointments and Removals	270
9. Judicial Power	275
The Character of Judicial Power	278
Limits on Judicial Power	283
Anxieties about Judicial Power	289
Part III: Further Issues of Constitutional Structure and Individual Rights
10. Structural Limits on State Power and Resulting Individual Rights	301
How Federal Power and Federal Law Can Restrict State Power	302
The Privileges and Immunities Clause	304
The “Dormant” Commerce Clause	308
The States as “Market Participants”	312
Conclusion	314
11. The Constitution in War and Emergency	315
The Power to Initiate War	320
Federal Powers during Wartime	323
War and Individual Rights	324
The Constitution and the “War on Terror”	328
Conclusion	333
12. The Reach of the Constitution and Congress's Enforcement Power	335
State Action Doctrine	336
The Paucity of “Positive” Fundamental Rights	339
Congressional Power to “Enforce” the Reconstruction Amendments	345
13. Conclusion	353
Appendix: The Constitution of the United States	363