Constitutional Law: Principles and Policies (Aspen Student Treatise)

1249 Pages·010.91 MB·English

by  Erwin Chemerinsky

Constitutional Constitutional Law
Principles and Policies
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EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.
Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky
Professor of Law
Stanford Law School
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CONSTITUTIONAL LAW
Principles and Policies
Fifth Edition

ERWIN CHEMERINSKY
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine School of Law

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Copyright © 2015 Erwin Chemerinsky.
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Library of Congress Cataloging-in-Publication Data
Chemerinsky, Erwin, author.
Constitutional law: principles and policies / Erwin Chemerinsky, Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law University of California, Irvine School of Law.—Fifth Edition.
pages cm.—(Aspen Student treatise series)
eISBN: 978-1-4548-6092-1
1. Constitutional law—United States. I. Title.
KF4550.C429 2015
342.73—dc23
2015008314
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For my grandson —
Andrew Charles Chemerinsky
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Summary of Contents
Contents
Preface
Acknowledgments

CHAPTER 1 Historical Background and Contemporary Themes
CHAPTER 2 The Federal Judicial Power
CHAPTER 3 The Federal Legislative Power
CHAPTER 4 The Federal Executive Power
CHAPTER 5 Limits on State Regulatory and Taxing Power
CHAPTER 6 The Structure of the Constitution's Protection of Civil Rights and Civil Liberties
CHAPTER 7 Procedural Due Process
CHAPTER 8 Economic Liberties
CHAPTER 9 Equal Protection
CHAPTER 10 Fundamental Rights
CHAPTER 11 First Amendment: Expression
CHAPTER 12 First Amendment: Religion
Appendix The Constitution of the United States of America
Table of Cases
Index
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Contents

Preface
Acknowledgments

CHAPTER 1
Historical Background and Contemporary Themes

§1.1 The Constitution's Functions
§1.2 Why a Constitution?
§1.3 A Brief History of the Creation and Ratification of the Constitution and Its Amendments
§1.4 How Should the Constitution Be Interpreted?
§1.5 Who Should Be the Authoritative Interpreter of the Constitution?

CHAPTER 2
The Federal Judicial Power

§2.1 Introduction
§2.2 The Authority for Judicial Review
§2.2.1 Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential
Actions
§2.2.2 The Authority for Judicial Review of State and Local Actions
§2.3 Introduction to the Justiciability Doctrines
§2.4 The Prohibition Against Advisory Opinions
§2.5 Standing
§2.5.1 Introduction
§2.5.2 Injury
§2.5.3 Causation and Redressability
§2.5.4 The Limitation on Third-Party Standing
§2.5.5 The Prohibition Against Generalized Grievances
§2.5.6 The Requirement That the Plaintiff Be Within the Zone of Interests Protected by the Statute
§2.6 Ripeness
§2.6.1 Introduction
§2.6.2 Criteria for Determining Ripeness: The Hardship to Denying Review
§2.6.3 Criteria for Determining Ripeness: The Fitness of the Issues and Record for Judicial Review
§2.7 Mootness
§2.7.1 Description of the Mootness Doctrine
§2.7.2 Exceptions to the Mootness Doctrine: Collateral Consequences
§2.7.3 Exceptions to the Mootness Doctrine: Wrongs Capable of Repetition Yet Evading Review
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§2.7.4 Exceptions to the Mootness Doctrine: Voluntary Cessation
§2.7.5 Exceptions to the Mootness Doctrine: Class Actions
§2.8 The Political Question Doctrine
§2.8.1 What Is the Political Question Doctrine?
§2.8.2 Should There Be a Political Question Doctrine?
§2.8.3 The “Republican Form of Government” Clause and Judicial Review of the Electoral Process
§2.8.4 Foreign Policy
§2.8.5 Congressional Self-Governance
§2.8.6 The Process for Ratifying Constitutional Amendments
§2.8.7 Excessive Interference with Coordinate Branches of Government
§2.8.8 Impeachment and Removal from Office: Nixon v. United States
§2.9 Congressional Control of Federal Court Jurisdiction
§2.9.1 Introduction
§2.9.2 Congressional Control of Supreme Court Jurisdiction
§2.9.3 Congressional Control of Lower Federal Court Jurisdiction
§2.10 Sovereign Immunity as a Limit on the Federal Judicial Power
§2.10.1 History of the Ratification of the Eleventh Amendment
§2.10.2 What Does the Eleventh Amendment Mean?
§2.10.3 The Application of the Eleventh Amendment: What's Barred and What's Allowed
§2.10.4 Ways Around the Eleventh Amendment: Suits Against State Officers
§2.10.5 Ways Around the Eleventh Amendment: Waiver
§2.10.6 Ways Around the Eleventh Amendment: Suits Pursuant to Federal Laws

CHAPTER 3
The Federal Legislative Power

§3.1 The Doctrine of Limited Federal Legislative Authority
§3.2 McCulloch v. Maryland and the Scope of Congressional Powers
§3.3 The Necessary and Proper Clause
§3.4 The Commerce Power
§3.4.1 Introduction to the Commerce Power
§3.4.2 Gibbons v. Ogden and the Definition of the Commerce Power
§3.4.3 The Commerce Clause Before
§3.4.4 The Commerce Clause from 1937 to
§3.4.5 The Commerce Clause After United States v. Lopez
§3.5 The Taxing and Spending Power
§3.5.1 The Scope of the Taxing and Spending Power
§3.5.2 The Taxing Power
§3.5.3 The Spending Power
§3.6 Other Congressional Powers Under Article I and Article IV
§3.6.1 Foreign Policy
§3.6.2 Domestic Affairs
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