Table Of Content97047_FM_pi-x pp2.qxd 2/2/07 3:29 PM Page i
A
MERICAN
C
ONSTITUTIONAL
L
AW
V I
OLUME
FOURTH EDITION
S P R
OURCES OF OWER AND ESTRAINT
O H. S , J .
TIS TEPHENS R
University of Tennessee, Knoxville
J M. S II
OHN CHEB
University of Tennessee, Knoxville
Australia • Brazil • Canada • Mexico • Singapore • Spain
United Kingdom •United States
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American Constitutional Law Volume I: Sources of Power and Restraint,Fourth Edition
Otis H. Stephens, Jr., and John M. Scheb II
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A A
BOUT THE UTHORS
Otis H. Stephens, Jr., is Alumni Distinguished Service Professor of
Political Science and Resident Scholar of Constitutional Law in the College
of Law at the University of Tennessee. He holds a Ph.D. in political science
from Johns Hopkins University and a J.D. from the University of Tennessee.
Professor Stephens is the author of The Supreme Court and Confessions of
Guilt (1973); he is coauthor, with Gregory J. Rathjen, of The Supreme Court and
the Allocation of Constitutional Power,with Richard A. Glenn, of Unreasonable
Searches and Seizures: Rights and Liberties under the Law (2006), and with
John M. Scheb II, of American Constitutional Law: Essays and Cases (1988).
He has contributed chapters to Comparative Human Rights (1976), The
Reagan Administration and Human Rights (1985), and American National
Security and Civil Liberties in an Era of Terrorism (2004). He has also authored
or coauthored a number of articles in professional journals, including the
Georgetown Law Journal, the Journal of Public Law, the Tennessee Law Review,
the Widener Journal of Public Law, the Southeastern Political Review, and the
Criminal Law Bulletin. Professor Stephens is also co-editor, along with John
M. Scheb II and Kara E. Stooksbury, of An Encyclopedia of American Civil
Rights and Liberties(2006). Professor Stephens teaches courses in constitu-
tional law, Supreme Court decision making, law and public policy, and ju-
risprudence in the UT College of Law. Dr. Stephens is also a member of the
Tennessee Bar.
John M. Scheb IIis Professor of Political Science and Chair of the Legal
Studies Program at the University of Tennessee, where he teaches graduate
and undergraduate courses in American government, constitutional law,
civil rights and liberties, administrative law, criminal law and procedure,
the judicial process, and law in American society. Professor Scheb received
his Ph.D. from the University of Florida in 1982. He has authored or coau-
thored numerous articles in professional journals, including the Journal of
Politics, American Politics Quarterly, Political Research Quarterly, Law and Policy,
Judicature, State and Local Government Review, Social Science Quarterly, Political
Behavior, Southeastern Political Review, and the Tennessee Law Review. Professor
Scheb has also coauthored six other textbooks: American Constitutional Law:
iii
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iv ABOUT THE AUTHORS
Essays and Cases (1988), with Otis H. Stephens, Jr.; An Introduction to the
American Legal System (2002), with Judge John M. Scheb; Government and
Politics in Tennessee (2002), with William Lyons and Billy Stair; Criminal Law
and Procedure, 5th edition (2005), with Judge John M. Scheb; Law and the
Administrative Process(2005), also with Judge John M. Scheb; and American
Government: Politics and Political Culture, 4th edition (2006), with William
Lyons. Most recently Professor Scheb co-edited, along with Otis H.
Stephens, Jr., and Kara E. Stooksbury, An Encyclopedia of American Civil
Rights and Liberties(2006).
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C
ONTENTS
Preface vii Conclusion 115
Key Terms 115
Introduction 1
For Further Reading 116
What Is Constitutional Law? 2 U.S. Term Limits, Inc. v. Thornton(1995) 116
The Adoption and Ratification M’Culloch v. Maryland(1819) 119
of the Constitution 2 Watkins v. United States(1957) 123
The Underlying Principles of the Constitution 8 Barenblatt v. United States(1959) 126
The Enduring Constitution 11 Gibbons v. Ogden(1824) 128
Key Terms 14 Hammer v. Dagenhart(1918) 131
For Further Reading 14 Carter v. Carter Coal Company(1936) 133
National Labor Relations Board v. Jones &
Chapter 1 The Supreme Court in the
Laughlin Steel Corporation(1937) 135
Constitutional System 18
Wickard v. Filburn(1942) 139
Introduction 19
Heart of Atlanta Motel v. United States(1964) 142
The Courts: Crucibles of Constitutional Law 19
Katzenbach v. McClung(1964) 144
Crossing the Threshold: Access to Judicial
United States v. Lopez(1995) 145
Review 24
Gonzales v. Raich(2005) 148
The Supreme Court’s Decision Making Process 30
United States v. Butler(1936) 153
The Development of Judicial Review 35
Steward Machine Company v. Davis(1937) 157
The Art of Constitutional Interpretation 47
South Dakota v. Dole(1987) 159
Judicial Activism and Restraint 49
South Carolina v. Katzenbach(1966) 162
External Constraints on Judicial Power 55
City of Boerne v. Flores(1997) 164
Explaining the Court’s Behavior 63
Conclusion 65
Chapter 3 Constitutional Underpinnings
Key Terms 67
of the Presidency 169
For Further Reading 67
Introduction 170
A Note on Briefing Cases 68
Structural Aspects of the Presidency 170
Marbury v. Madison(1803) 69
Theories of Presidential Power 175
Eakin v. Raub (Gibson, J., dissenting) (1825) 71
The Veto Power 178
Scott v. Sandford (1857) 73
Appointment and Removal Powers 180
Ex parte McCardle (1869) 76
The Power to Grant Pardons 183
Cooper v. Aaron (1958) 78
Executive Privilege 184
Baker v. Carr (1962) 80
Presidential Immunity 186
Rasul v. Bush(2004) 82
Foreign Policy and International Relations 187
Chapter 2 Congress and the Development War Powers 191
of National Power 85 Conclusion 199
Introduction 86 Key Terms 200
Structural Aspects of Congress 86 For Further Reading 200
Constitutional Sources of Congressional Power 89 Youngstown Sheet & Tube Company v.
The Power to Investigate 93 Sawyer (1952) 201
Regulation of Interstate Commerce 96 United States v. Nixon (1974) 206
Taxing and Spending Powers 107 Clinton v. Jones (1997) 208
Congressional Enforcement of Civil United States v. Curtiss-Wright
Rights and Liberties 112 Export Corporation (1936) 213
v
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vi CONTENTS
Dames & Moore v. Regan (1981) 216 Chapter 5 The Dynamics of the
The Prize Cases (1863) 219 Federal System 295
Korematsu v. United States (1944) 221 Introduction 296
Hamdan v. Rumsfeld (2006) 225 Development of the Federal System 296
United States v. United States Nation-Centered Federalism 301
District Court(1972) 229 The Resurgence of States’ Rights 304
The Commerce Clause and State
Regulatory Authority 308
Chapter 4 The Constitution and the Modern
State Taxing Power 316
Administrative State 234
Interstate Relations 321
Introduction 235
Conclusion 326
The Delegation of Legislative Power 236
Key Terms 327
Additional Separation of Powers Concerns 243
For Further Reading 327
Congressional Control of Administrative
Chisholm v. Georgia (1793) 328
Actions 244
United States v. Darby (1941) 330
Presidential Control of the Bureaucracy 247
National League of Cities v. Usery (1976) 333
Judicial Oversight over the
Garcia v. San Antonio Metropolitan
Administrative State 250
Transit Authority (1985) 335
Agency Actions and Individual Rights 254
Printz v. United States (1997) 339
Conclusion 257
Alden v. Maine (1999) 345
Key Terms 257
Tennessee v. Lane(2004) 352
For Further Reading 257
Cooley v. Board of Port Wardens (1852) 357
J. W. Hampton & Company v. United
Oregon Waste Systems v. Department of
States(1928) 258
Environmental Quality (1994) 359
Schechter Poultry Corporation v. United
States (1935) 259
Appendix A The Constitution of the
Mistretta v. United States (1989) 263
United States of America A–1
Whitman v. American Trucking
Associations(2001) 266 Appendix B Chronology of Justices of the
Gonzales v. Oregon(2006) 268 United States Supreme Court B–1
Immigration and Naturalization Service v.
Appendix C Supreme Court Justices by
Chadha(1983) 273
Appointing President, State Appointed
Wiener v. United States(1958) 279
From, and Political Party C–1
Vermont Yankee Nuclear Power Corp. v. Natural
Resources Defense Council (1978) 281 Appendix D Glossary D–1
Goldberg v. Kelly (1970) 282
Mathews v. Eldridge (1976) 285 Appendix E Internet Resources E–1
Dow Chemical Company v. United States (1986) 288
Table of Cases T–1
Treasury Employees v. Von Raab(1989) 291
Index I–1
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P
REFACE
American constitutional law, to paraphrase Accordingly, its political decisions are rendered in
Charles Evans Hughes, is what the Supreme legal terms. Because it is both a legal and a political
Court says it is. But of course it is much more institution, a complete understanding of the Court
than that. Constitutional law is constantly in- requires some knowledge of both law and politics.
formed by numerous actors’ understandings of the While political discourse is familiar to most col-
meaning of the United States Constitution. Lawyers, lege students, the legal world can seem rather be-
judges, politicians, academicians, and, of course, cit- wildering. Terms such as habeas corpus, ex parte,
izens all contribute to the dialogue that produces subpoena duces tecum,and certiorarileave the im-
constitutional law. Consequently, the Constitution pression that one must master an entirely new
remains a vital part of American public life, contin- language just to know what is going on, much less
uously woven into the fabric of our history, poli- achieve a sophisticated understanding. Although
tics, and culture. Our goal in writing this textbook we do not believe that a complete mastery of legal
is to illustrate this premise in the context of the terminology is necessary to glean the political from
most salient and important provisions of the the legal, we recognize that understanding the
Constitution. work of the Supreme Court is a complex task. We
Volumes I and II of American Constitutional Law have tried to minimize this complexity by deleting
contain thirteen chapters covering the entire as much technical terminology as possible from
range of topics in constitutional law. Each of the the judicial opinions excerpted in this book with-
chapters includes an introductory essay providing out damaging the integrity of those opinions.
the legal, historical, political, and cultural context Nevertheless, despite our attempts at editing out
of Supreme Court jurisprudence in a particular distracting citations, technical terms, and mere
area of constitutional interpretation. Each intro- verbiage, the task of understanding Supreme Court
ductory essay is followed by a set of edited decisions remains formidable. It is one that re-
Supreme Court decisions focusing on salient con- quires concentration, patience, and above all the
stitutional issues. In selecting and editing these determination to grasp what may at times seem
cases, we have emphasized recent trends in major hopelessly abstruse. We firmly believe that all
areas of constitutional interpretation. At the same students of American politics and law, indeed all
time, we have included many landmark decisions, citizens,should make the effort.
some of which retain importance as precedents In preparing the fourth edition, we have en-
while others illustrate the transient nature of con- deavored to incorporate the important develop-
stitutional interpretation. ments that have taken place during the five years
Although the Supreme Court plays a very im- since the third edition was completed. Most sig-
portant role in American politics, its function is nificant among these were: 1) the passing of the
limited to deciding cases that pose legal questions. Rehnquist Court and the dawn of the Roberts
vii
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viii PREFACE
Court; and 2) a series of Supreme Court decisions Adam Ruf, Caitlin Shockey, and Nicholas
stemming from the ongoing war on terrorism. Of Zolkowski, all third-year law students.
course, during the past five years the Court has We wish to express our gratitude to the edito-
rendered numerous consequential decisions across rial team at Wadsworth, in particular, Michael
the entire range of constitutional law. We have at- Rosenberg and Rebecca Green, for their support
tempted to acknowledge all, or nearly all, of them and encouragement. We would also like to express
in our introductory essays and to incorporate sev- our appreciation to the many scholars who re-
eral of them into our set of edited cases. We have viewed this edition and its predecessors, a list of
also restored a number of significant older cases whom appears on the following page. Their com-
that were not included in the second or third edi- ments, criticisms, and suggestions were extremely
tions. Thus, this edition is not only much more helpful.
current, but much more comprehensive as well. Finally, we wish to acknowledge the support
In completing this new edition, we have bene- provided by our wives, Mary Stephens and
fitted from the encouragement and advice of our Sherilyn Scheb. This book is dedicated to them.
colleagues and students in the Department of Although many people contributed to the devel-
Political Science and the College of Law at the opment and production of this book, we, as al-
University of Tennessee. In particular, we wish to ways, assume full responsibility for any errors that
thank Dr. Thomas Y. Davies, Alumni Distinguished may appear herein.
Service Professor of Law, for sharing his insights on
several important questions of constitutional his-
tory. Rachel Pearsall, a Ph.D. student in political
science, has provided able assistance at important Otis H. Stephens, Jr.
stages of work on this edition; as have Aaron John M. Scheb II
Belville and Charles Patrick, 2006 graduates of our Knoxville, Tennessee
College of Law; and research assistants Eric Lutton, August 1, 2006
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R A
EVIEWERS AND FFILIATIONS
The authors and publisher wish to thank the following individuals who
reviewed the manuscript of this or the previous editions:
Henry Abraham Kent A. Kirwan
University of Virginia University of Nebraska–Omaha
Alex Aichinger Mark Landis
Northwestern State University Hofstra University
of Louisiana
Timothy O. Lenz
Ralph Baker Florida Atlantic University
Ball State University
Sarah H. Ludwig
Paul R. Benson Mary Baldwin College
The Citadel
Connie Mauney
Walter A.Boroweic Emporia State University
SUNY College at Brockport
William P. McLauchlan
Robert Bradley Purdue University
Illinois State University
R. Christopher Perry
Saul Brenner Indiana State University
University of North
E.C. Price
Carolina–Charlotte
California State
Robert V. Burns University–Northridge
South Dakota State University
Donald I. Ranish
Angelo J. Corpora Antelope Valley College
Palomas College
Wilfred E. Rumble
Larry Elowitz Vassar College
Georgia College
Elliot E. Slotnick
Philip Fishman Ohio State University
Augsburg College
Mark Stevens
Marilyn Glater North Carolina Wesleyan College
Tufts University
John R. Vile
Middle Tennessee State University
William Haltom
University of Puget Sound
Diane E. Wall
Mississippi State University
Sharon Jennings
New Mexico State Mark David Welton
University–Grants Campus United States Military Academy
William E. Kelly John Winkle
Auburn University University of Mississippi
ix
