Constitutional Law

US Constitutional Law

The Migration of Constitutional Ideas by Sujit Choudhry (Cambridge University Press) The migration of constitutional ideas across jurisdictions is rapidly emerging as one of the central features of contemporary constitutional practice. The increasing use of comparative jurisprudence in interpreting constitutions is one example of this. In this book, leading figures in the study of comparative constitutionalism and comparative constitutional politics from North America, Europe and Australia discuss the dynamic processes whereby constitutional systems influence each other. They explore basic methodological questions which have thus far received little attention, and examine the complex relationship between national and supranational constitutionalism - an issue of considerable contemporary interest in Europe. The migration of constitutional ideas is discussed from a variety of methodological perspectives - comparative law, comparative politics, and cultural studies of law - and contributors draw on case-studies from a wide variety of jurisdictions: Australia, Hungary, India, South Africa, the United Kingdom, the United States, and Canada.

Reviewed by Carlo Guarnieri, Professor of Political Science, University of Bologna. Email: guarnica [at] spbo.unibo.it in LPBR Revew Essays. All previously published reviews may be obtained at the Law & Politics Book Review web site: http://www.bsos.umd.edu/gvpt/lpbr

The migration of constitutional ideas across judicial systems has become one of the central features of contemporary constitutional practice. Two recent U.S. Supreme Court cases * LAWRENCE v. TEXAS (2003) and ROPER v. SIMMONS (2005), in which the Court majority quoted foreign sources in justifying its decision * have underlined the growing significance of the phenomenon. Aptly named, THE MIGRATION OF CONSTITUTIONAL IDEAS moves from the premise that there is a remarkable absence of serious reflection on this development: constitutional law seems out of step from a highly significant constitutional practice. Therefore, it presents a set of papers devoted to an analysis of the subject, originally prepared for a conference held at the University of Toronto in October 2004.

The general approach of the papers tries to move away from general theories of constitutional interpretation. As the editor * Sujit Choudhry * points out in his introductory essay, the book presents a bottom-up effort to analyze the reasons offered by courts and other legal actors for the recourse to comparative materials and to weave those justifications into coherent accounts. The final aim is to build constitutional theories in order to explain and, above all, justify interpretive practices.

As Choudhry notes, migration seems to be a better metaphor to describe what is really going on in the constitutional landscape of many countries. In fact, legal transplants * a term often used by constitutional scholars * could only occur if the rule and its context could be transferred between legal systems without any alteration, a very unlikely prospect, since a legal rule is likely to be understood in a different way by the “host” culture, becoming in fact a different rule. As pointed out also by Kim Lane Scheppele in her contribution, another popular metaphor * that of constitutional borrowing * has its limits. Unlike what happens in reality, borrowing denotes ownership on the part of the lender and therefore the fact that ideas should be returned to the original jurisdiction, although it is not always clear in what ways this can be done. Moreover, “borrowed” ideas should be used without significant modification or adaptation. In fact, the migration of constitutional ideas encompasses a much broader range of relationships between the recipient jurisdiction and constitutional ideas: as pointed out by Neil Walker, migration “presumes nothing about the attitudes of the givers or the recipient, or about the properties or fate of the legal objects transferred” (p.320).

The volume is divided into four parts. In the first, some basic methodological [*505] aspects of comparative analysis are addressed. Ran Hirschl, arguing from a comparative politics perspective, underlines the lack of reliable explanations of constitutional migrations: “we still know precious little about the actual extent of this phenomenon, let alone why, when, and how such migration has been occurring or is likely to occur” (p.64). In fact, legal studies of comparative constitutionalism tend to lack sufficient methodological rigour, since they do not follow the principles * already recognized by contemporary social science * of controlled comparison, accurate research design and good case selection. Therefore, they have not been able to produce convincing explanations of constitutional migrations. On the other hand, comparative political scientists, working with more methodologically conscious approaches, have been able to explain to a large extent the related phenomenon of the recent spread of written constitutions and bills of rights.

Hirschl’s paper is the only real contribution from a social science perspective. All the remaining authors tend to argue mainly from a legal point of view, their principal goal being to justify or criticize the practice on the basis of some legal principle. Thus, Mark Tushnet reflects on the ways comparative constitutional law can improve the ability to make better domestic constitutional law, a goal he thinks can and should be achieved. As for the other contributions, a first theme centres on whether constitutional migrations have facilitated the emergence of a common constitutional model, with Lorraine Weinrib arguing for the emergence of a “post-war juridical paradigm” of rights protection * to whom the United States are in part foreign * and Jeffery Goldsworty, Michel Rosenfeld and Andràs Sajò suggesting that significant variations between countries continue to exist and that convergence should not be always considered a positive fact. On the other hand, writing from the privileged point of view of a mixed legal system like Canada, Jean-François Gaudreault-Desbiens asserts that the post-Second World War constitutional model has led to a sort of migration of interpretive methodology from the civil law to the common law. As for the question if and to what extent these developments have * or not * involved the USA, Lorraine Weinrib and Brenda Cossman give partially different answers.

Another part of the volume is devoted to the influence of international and transnational * e.g. European Union * law on national jurisdictions. Mayo Moran and Mattias Kumm assess the legitimacy of importing constitutional ideas from international law from within the standpoint of domestic constitutional law. Moran, on the basis of British, Canadian and South African cases, finds that the values of international and comparative law influence domestic constitutional law and, in turn, the values of constitutional law influence domestic private law. Kumm, in his analysis of the jurisprudence of the European Court of Justice and of the European Court of Human Rights, arrives at similar conclusions on the influence of constitutional ideas from international law and presents “a framework for thinking about the moral concerns that [*506] any set of doctrines governing the interface between national and international law ought to take into account and reflect” (p.261). David Schneidermann and Neil Walker ask whether the conceptual lens of domestic constitutionalism has migrated and should migrate to the international level in order to become a standard for transnational governance and give partially different answers: on the whole positive by Schneidermann, while Walker points out the complexities involved in the EU case.

Finally, a set of papers tries to assess the most recent cases of migration of constitutional ideas, those in the wake of 9/11. Here, the comparative conversation between different judicial and legal systems seems strong, but the judgments on their merits are diverse. Scheppele points out that migration is not always a good thing, as it has been the case with anti-constitutional ideas inserted in the legislation on emergency powers enacted as a consequence of UN Security Council resolutions against terrorism. Similarly, Oren Gross underlines the risk that anti-constitutional ideas migrate from the periphery to the centre, as in the case of emergency regimes applied in colonies * as in Algeria by France * or in dependent territories, as in Northern Ireland by Britain. On the other hand, in his analysis of the drafting of anti-terrorism legislation in Australia, Canada, Hong Kong, Indonesia, South Africa, United Kingdom and United States, Kent Roach points out the filtering effect played by national jurisdictions against the migration of anti-constitutional ideas.

Migration of legal ideas is by no means a new phenomenon. The entire history of private law has been characterized by migrations. Also public law is not foreign to similar developments, as shown by the influence exerted on many countries of continental Europe and Latin America by Napoleonic reforms of the organization of criminal procedure (Merryman 1985) or by the recent spread in many civil countries of more or less accusatorial, American-style codes of criminal procedure (Langer 2004). As for constitutional law, the influence of some constitutions * like the constitutions of the United States, of Federal Germany or of the French Fifth Republic * on constitution-drafting is well-known.

What is really new today is the accelerated rate according to which legal and constitutional ideas migrate from one judicial system to another. Above all, the most significant development is the crucial role played by judges in the process of migration. As many of the contributions in the book underline, in most cases judges are those actually giving effect to the influence of migrating constitutional ideas. One of the results of this trend is that judicial creativity and power come out magnified, making even more acute the “democratic deficit” of the judiciary. Moreover, the expanded role of foreign jurisprudence does further the decline of the sovereignty of the State, a basic principle of the modern, “Westphalian” State, triggering an adverse reaction in those political contexts in which the principle still enjoys rather strong support (as in the United States, for example). [*507]

The book provides a careful and well-diversified analysis of all these developments. However, as underlined by Hirschl, convincing explanations are lacking. Almost all the contributors devote their analyses to the evolution of jurisprudence and legislation, but do not deal with the problem of the actual reasons behind the increasing significance of constitutional migration. A partial exception is Jeffery Goldsworty. Noting that the increasing support for a stronger role of the judicial branch is related to “the contemporary loss of faith in the old democratic ideal of government by ordinary people” (p.121), he looks for an explanation and suggests it lies in the fact that, at least in some countries, “a substantial number of influential members of the highly educated, professional, upper-middle class have lost faith in the ability of their fellow citizens to form opinions about important matters of public policy in a sufficiently intelligent, well-informed, dispassionated, impartial, and carefully reasoned manner” (p.122). In this situation, strengthening judicial power means shifting power to people who are often representative members of that very class. It is interesting to note that this suggestion can be easily made compatible with the broader analysis put forward by Hirschl on the role played in supporting the expansion of judicial power by “hegemonic groups,” fearful of losing their grip on political power (Hirschl 2004). In fact, when considering constitutional developments, we should always take into account the interests involved in the process and, in this case, their capacity of developing good relationships with the legal professions * and the judiciary * and of introducing institutional changes conducive to stronger judicial power. Obviously, the picture is extremely complex and should be adjusted to the different characters of the legal and political systems, deserving a long term research strategy and collaboration between legal scholars and political scientists. This is the main reason why the b ook, although presenting mainly a legal point of view, is an important contribution to this effort.

REFERENCES:

Hirschl, Ran. 2004. Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Cambridge: Harvard University Press. (In countries and supranational entities around the globe, constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries. The constitutionalization of rights and the establishment of judicial review are widely believed to have benevolent and progressive origins, and significant redistributive, power-diffusing consequences. Ran Hirschl challenges this conventional wisdom.

Drawing upon a comprehensive comparative inquiry into the political origins and legal consequences of the recent constitutional revolutions in Canada, Israel, New Zealand, and South Africa, Hirschl shows that the trend toward constitutionalization is hardly driven by politicians' genuine commitment to democracy, social justice, or universal rights. Rather, it is best understood as the product of a strategic interplay among hegemonic yet threatened political elites, influential economic stakeholders, and judicial leaders. This self-interested coalition of legal innovators determines the timing, extent, and nature of constitutional reforms.

Hirschl demonstrates that whereas judicial empowerment through constitutionalization has a limited impact on advancing progressive notions of distributive justice, it has a transformative effect on political discourse. The global trend toward juristocracy, Hirschl argues, is part of a broader process whereby political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policymaking from the vicissitudes of democratic politics.)

Langer, Màximo. 2004. “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure”, 45 HARVARD INTERNATIONAL LAW JOURNAL 1-64.

Merryman, John Henry. 1985. The Civil Law Tradition. Stanford: Stanford University Press. (2nd edition). (3rd ed.: Designed for the general reader and students of law, this is a concise history and analysis of the civil law tradition, which is dominant in most of Europe, all of Latin America, and many parts of Asia, Africa, and the Middle East. This new edition deals with recent significant events—such as the fall of the Soviet empire and the resulting precipitous decline of the socialist legal tradition—and their significance for the civil law tradition. The book also incorporates the findings of recent important literature on the legal cultures of civil law countries.)

CASE REFERENCES:

LAWRENCE v. TEXAS, 539 US 558 (2003).

ROPER v. SIMMONS, 543 US 551 (2005).

*************************************************

LPBR Revew Essays

Readers may redistribute these articles to other individuals for noncommercial use, provided that the text and this notice remain intact and unaltered in any way. No LPBR article may be resold, reprinted, or redistributed for compensation of any kind without prior permission from the author. If you have any questions about permissions, please contact Wayne McIntosh, Editor, THE LAW AND POLITICS BOOK REVIEW, Department of Government & Politics, University of Maryland, College Park, MD 20742, or by phone at 301.405.4156 or by fax at 301.314.9690.

All previously published reviews may be obtained at the Law & Politics Book Review web site: http://www.bsos.umd.edu/gvpt/lpbr

Individual Rights and Liberties Under the U.S. Constitution: The Case Law of the U.S. Supreme Court by Ioannis, G. Dimitrakopoulos (Martinus Nijhoff Publishers - Brill Academic) This is a treatise on individual rights and liberties, under the U.S. Constitution, as interpreted by the federal Supreme Court. It contains references to more than 2,500 opinions of the Court, and covers, in a comprehensive way, ten major decisional areas:

general issues of constitutional rights (e.g., rightholders, state action, affirmative obligations of government, substantive due process, waiver of rights);
procedural rights (including fundamental rights in criminal procedure);
personal inviolability and liberty;
substantive guarantees against criminal or civil penalties;
personal or family privacy and autonomy;
searches and seizures;
freedoms of conscience, thought, belief, and religion (including the Establishment Clause);
freedoms of speech, press, assembly, and association;
substantive protection of property rights and economic interests;
equal protection.

It also includes an introductory chapter on the Supreme Court, its organization, jurisdiction, and procedures and the exercise of judicial review. The cut-off date is January 1, 2006.

The book has been based on an exhaustive research of the relevant materials, conducted mostly through computer databases. In the interest of accuracy, the text stays close to, and often reproduces, the actual language of the Court's opinions. In many cases, the presentation and analysis are based on the Court's own analysis and understanding of its prior decisions.

Ioannis G. Dimitrakopoulos was born in 1971 in Athens, Greece. In 1993, he received his Law degree (with Honors) from Athens Law School. In 1994, he obtained his Masters degree, in the field of Internal Public Law, from the University PantheonAssas (Paris II). In 1998, he graduated at the top of his class from the National School for the Judiciary and was appointed Junior Judge to the Council of State, the Supreme Administrative Court of Greece, which deals mainly with cases involving questions of constitutional, administrative, or European Community law.

During the academic year 2003-2004, he was a Senior Visiting Fellow in the University of California, Berkeley (Earl Warren Legal Institute). In 2005, he was promoted to Associate Judge of the Council of State. He is currently detached to the European Union, serving as a Principal Legal Adviser of the European Ombudsman. His previous publications include the following books (in Greek): Case Law of the Court of Justice of the European Communities and Essential Community Legislation Concerning Environment and European Community Law on Public Procurement.

The volume is encyclopedic and well organized and reasoned throughout. I include the contents to give you a comprehensive idea of its scope. Anyone interested in Constitutional law and human rights will find this an good place for initial consultation.

CHAPTER 1: THE U.S. SUPREME COURT—AN OVERVIEW
A. The Court as an Institution
B. The Court's Jurisdiction
1. In General
2. The "Case or Controversy" Requirement
a. Introduction
b. Advisory Opinions—Administrative Duties—Rulemaking
c. Ripeness
d. Standing
i. Constitutional Requirements
ii. Non-Constitutional Prudential Considerations
iii. Particular Questions of Standing
e. Mootness
f. Final Judgments—Reopening of Cases
3. Adequate State Grounds
4. The Abstention Doctrine
5. The "Not Pressed or Passed Upon Below" Rule
6. Political Questions
7. The "Act of State" Doctrine
C. Judicial Review
1. Generally
2. Standards of Review in Constitutional Rights Cases
3. Facial Challenges
4. Avoidance of Constitutional Questions
D. Effects of the Court's Decisions
1. Judicial Supremacy
2. Declaration of Unconstitutionality
3. Power of Precedent
4. Retroactivity
E. How the Court Adjudicates Cases
CHAPTER 2: GENERAL ISSUES OF CONSTITUTIONAL RIGHTS
A. Rightholders
1. Fetus
2. Private Associations and Corporations
3. Governmental Bodies
B. Persons Bound by Constitutional Rights—The Concept of "State Action"
1. Public Authorities and Agents
2. Private Persons
a. General Principles
b. Particular Applications
C. Territorial Application of the Constitutional Provisions About Individual Rights
D. Constitutional Rights in Wartime or in Case of Insurrection
E. Retroactive Lawmaking
F. Affirmative Obligations of Government
G. Waiver of Constitutional Rights
1. In General
2. Waiver of a Constitutional Right as a Condition for Receiving Discretionary Government Benefits—Doctrine of Unconstitutional Conditions
H. Substantive Due Process
I. Constitutional Rights of Particular Categories of Persons
1. Aliens
2. Prisoners
3. Minors
4. Public Employees—Military Personnel
J. Liability for Constitutional Violations
K. The Enforcement Clause of the Fourteenth Amendment
CHAPTER 3: PROCEDURAL RIGHTS
A. Procedural Due Process
1. Introduction—Substantive v. Procedural Due Process
2. General Principles
a. Deprivation of Protected "Liberty" or "Property" Interests
b. Procedural Requirements
i. Introduction—The Mathews Balancing Test
ii. Notice
iii. Hearing
iv. Right to (Retained or Appointed) Counsel
v. Standard of Proof
vi. Legislative Presumptions
vii. Impartial Decisionmaker
3. Particular Applications
a. Takings of Property
b. Pre Judgment Attachments—Civil Forfeitures
c. Damage to a Person's Reputation
d. Deprivation of Public or Private Employment—Exclusion from a Professional Activity e. Suspension of a Driver's License
f. Suspension or Dismissal of Students from Public Schools
g. Termination of Welfare or Disability Benefits
h. Right to Notice and Hearing in the Civil Trial Context
i. Prisoners' Liberty Interests
B. Right of Access to Courts
1. In General
2. Indigents' Access to Judicial Processes
a. Generally
b. In Criminal Cases
c. In Civil Cases
C. Jury Trial in Civil Cases
D. The Fifth Amendment's Privilege Against Compulsory Self-Incrimination
1. General Considerations
2. Suspects' Self-Incriminating Statements During Custodial Interrogation
a. Historical Background
b. The Miranda Warnings
c. What Constitutes "Custodial Interrogation"
d. Procedure to Be Followed When a Suspect Invokes His Miranda Rights
e. The Exclusionary Rule
E. Other Basic Procedural Guarantees in the Criminal Context
1. Right to Fair Notice of the Charges and the Grand Jury Clause
2. The Sixth Amendment's Right to Counsel
a. In General
b. The Right to Counsel of One's Choice
c. Right to Effective Assistance of Counsel
d. The Defendant's Right to Self-Representation
3. Safeguards Regarding Show-Ups, Line-Ups, and Other Pre-Trial Identification Procedures
4. The Excessive Bail Clause
5. Standard and Burden of Proof
6. The Right to Present Evidence
a. Generally
b. Discovery and Disclosure
c. The Confrontation Clause
7. Public Trial
8. The Right to Jury Trial
a. General Considerations
b. Jury Selection
9. Freedom from Physical Restraints Visible to the Jury
10. The Right to a Speedy Trial
11. Appeals and Post-Conviction Review
a. The Defendant's Right to Appeal
b. The "Harmless Error" Rule
CHAPTER 4: DIGNITY AND WORTH OF THE INDIVIDUAL—PERSONAL INVIOLABILITY AND LIBERTY
A. Dignity and Worth of the Individual
B. Personal Inviolability and Liberty
1. Compulsory Labor and Service
2. The Right to Travel
a. The Right to Travel and Settle in the United States Residency Requirements
b. The Right to International Travel
3. The Right to Bodily Integrity
a. Generally
b. Corporal Punishment in Public Schools
c. The Right to Refuse Medical Treatment, Vaccination, and the Administration of Drugs
4. Termination of Life-Sustaining Medical Treatment—Assisted Suicide . .
5. Deprivation of Personal Liberty Without Prior Criminal Conviction .
a. In General
b. Involuntary Commitment to a Mental Institution
i. Generally
ii. Civil Commitment of Minors
iii. Conditions of Confinement
c. Detention of Aliens Who Are Deportable or Whose Deportability or Admissibility Is Under Review
d. Detention of "Enemy Combatants"
e. Deprivation of Personal Liberty During Criminal Proceedings
i. In General
ii. Pre-Trial Detention of Criminally Accused Persons
6. The Right to Keep and Bear Arms
CHAPTER 5: SUBSTANTIVE GUARANTEES AGAINST CRIMINAL
OR CIVIL PENALTIES
A. The Distinction Between Criminal Punishments and Civil Sanctions or Restraints
1. In General
2. Forfeitures and Fines
3. Contempt Sanctions
4. Involuntary Civil Commitment of Sexually Dangerous Persons and Other Civil Measures Against Such Individuals
5. Other Cases
B. The Bill of Attainder Clause
C. Non-Retroactivity
1. In the Criminal Context
a. The Ex Post Facto Clauses
b. Retroactive Judicial Decisionmaking
2. In the Civil Context
D. Definiteness and the "Fair Warning" Doctrine
1. In the Criminal Context
a. In General
b. The "Void for Vagueness" Doctrine
i. Generally
ii. Vagrancy Laws
iii. Restrictions on Expression—Generally
iv. Breach of the Peace—"Fighting" Words
v. Protection of Public Morals—Obscenity Laws
vi. Prohibition of Assemblies
vii. Anti-Communist Criminal Legislation—Loyalty Oaths ..
viii. Contempt of a Congressional Investigatory Committee.
ix. Abortion Laws
x. Economic Regulation
xi. Military Rules
2. In the Civil Context
E. Other Due Process Restrictions
1. In the Criminal Context
a. Entrapment
b. Arbitrary Penalties
c. Mandatory Non-Capital Sentences
d. Conditions of Imprisonment
2. In the Civil or Quasi-Criminal Context
a. In General
b. Excessive Punitive Damages
F. The Cruel and Unusual Punishments Clause
1. In General
2. Kind or Method of Punishment
a. The Death Penalty
b. Deprivation of Citizenship
c. Prison Deprivations
i. Generally
ii. Conditions of Imprisonment—Medical Care of Prisoners
iii. Use of Excessive Force Against Inmates
3. Proportionality of Sentences—Mandatory Life Imprisonment
4. Punishable Conduct
G. The Excessive Fines Clause
H. The Double Jeopardy Clause
1. In General
2. Attachment and Termination of Jeopardy
3. The "Dual Sovereignty" Doctrine
4. Same Offense
5. The Collateral Estoppel Component
6. Sentencing
CHAPTER 6: PERSONAL OR FAMILY PRIVACY AND AUTONOMY
A. In General
B. Protection of Personal Data and Communications
C. Freedom to Marry
D. Sexual Freedom
E. Parental Rights
1. Generally
2. Education of Children
3. Rights of Unwed Fathers
4. Rights of Foster Parents
5. Visitation Rights of Third Persons
6. Termination of Parental Rights
F. Living Arrangements
G. Procreation
H. Contraception
I. Abortion
1. Generally
2. Fetal Viability
3. Informed Consent of the Pregnant Woman
4. Consent of Notification of the Spouse
5. Consent or Notification of the Parents of a Pregnant Unmarried Minor
6. Methods of Abortion
7. Persons Performing Abortions
8. Facilities in Which Abortions May Be Performed...
9. Abortion Funding—Allocation of Public Resources.
CHAPTER 7: SEARCHES AND SEIZURES
A. Introduction
B. Scope of the Fourth Amendment
1. Government Conduct
2. What Constitutes "Search" or "Seizure"
a. Generally
i. Search
ii. Seizure
iii. Abandment
b. Particular Types of Searches and Seizures
i. Particular Places, Effects, or Papers
ii. Particular Acts or Methods
3. Who May Invoke the Fourth Amendment Safeguards
C. Legality of Searches and Seizures
1. General Requirements
a. Warrant
i. In General
ii. Particularity
iii. Issuing Officials
b. Probable Cause—Reasonable Suspicion
i. Generally
ii. Informant's Tip
c. Reasonableness
2. Particular Types of Searches and Seizures
a. Particular Places, Effects, or Persons
i. Private Dwellings
ii. Commercial Premises—Offices
iii. Fire-Damaged Premises
iv. Murder Scenes
v. Public Places
vi. Border Searches
vii. Automobiles--Motorists
viii. Vessels
ix. Seizure of Materials Presumptively Protected by the First Amendment
x. Searches and Seizures in the Public School Context
xi. Patients at Public Hospitals
xii. Pre-Trial Detainees
xiii. Probationers
b. Particular Acts, Methods, or Forms
i. Arrests
ii. Investigatory Stops and Frisks
iii. Fingerprinting
iv. Hot Pursuit
v. Search Incident to Lawful Arrest
vi. The "Plain View" Doctrine
vii. Technological Surveillance
viii. Drug and Alcohol Testing
ix. Administrative Inspections
x. Caseworkers' Home Visits
xi. Inventory Searches
xii. Consent Searches
3. Effecting a Search or Seizure
a. Executing a Warrant
b. Traffic Stops
c. Use of Excessive Force
d. High-Speed Automobile Chases—Roadblocks
e. Compelled Surgical Intrusion
f. Entry—The "Knock and Announce" Requirement
g. Presence of Third Parties—Media Ride-Alongs
h. Reasonable Mistakes
D. Remedies for Fourth Amendment Violations
1. The Exclusionary Rule
2. Bivens Actions
CHAPTER 8: FREEDOMS OF CONSCIENCE, THOUGHT, AND BELIEF—RELIGIOUS FREEDOM
A. Freedoms of Conscience, Thought, and Belief
1. In General
2. Compelled Expression of Objectionable Ideas
3. Compulsory Disclosure of Beliefs
4. Freedom of Thought in Schools
5. Exclusion from a Profession or Public Employment on the Basis of Political Beliefs or Association
6. Oaths of Office
7. Conscientious Objection to Military Service or Instruction
8. Beliefs of the Defendant in the Sentencing Context
B. Freedom of Religion
1. The Free Exercise Clause
a. In General
b. Ecclesiastical Administration
c. Internal Government Affairs
d. Polygamy
e. Religious Upbringing of Children
f. Sunday Closing Laws
g. Denial of Government Benefits Because of Conduct Mandated by Religious Belief
h. Exclusion of the Pursuit of a Devotional Theology Degree from a Scholarship Aid Program
i. Taxation
j. Military Regulations
k. Prison Regulations
2. The Establishment Clause
a. In General
b. Relation Between the Two Religious Clauses
c. Applicable Standards of Review
d. Aid to Religion and Religious Institutions
i. In General
ii. Aid to Religious Schools or to Their Students
iii. Funding for Services Relating to Pregnancy and Parenthood
e. Taxation—Tax Exemptions or Deductions
f. Government Sponsorship of Religion
i. In the Public School Context
ii. Display of Religious Symbols by the Government—Religious Speech on Public Property
g. Permissible Forms of "Ceremonial Deism" (Legislative Prayers National Motto—Pledge of Allegiance)
h. Delegation of Governmental Authority
i. Exemption from Military Service
j. Labor Legislation
k. Church Property Disputes
CHAPTER 9: FREEDOMS OF SPEECH, PRESS, ASSEMBLY, AND ASSOCIATION
PART I: FREEDOM OF SPEECH AND OF THE PRESS
A. Introduction
B. Prior Restraints
1. In General
2. Licensing
3. Injunctions
C. Vagueness and Overbreadth
D. The Distinction Between Content-Based and Content-Neutral Regulation of Speech
1. General Considerations
2. Particular Categories of Content-Based Regulations
a. Advocacy of the Use of Force or of Law Violation
i. The World War I Cases
ii. State Sedition Laws—Anti-Communist Legislation
iii. The Modern "Incitement" Test
b. Injury to Reputation or Privacy
i. Defamation
ii. Information Privacy
c. Unwelcome and Offensive Speech
i. In General
ii. Breach of Peace—"Fighting" Words
iii. Hostile Audiences
iv. Captive Audiences
v. Threats of Violence—Hate Speech
d. Sexually Explicit Expression
i. Obscenity
ii. Child Pornography
iii. Pornography and Sexism
iv. Public Nudity Bans
v. Zoning Legislation Dealing with Adult Entertainment Uses
vi. Sexually Explicit Expression on Communications Media
e. Commercial Speech
i. Generally
ii. Specific Types of Advertising
iii. Trade Names
f. Campaign-Related Speech—Lobbying
E. Speech in the Public Sector
1. Speech of Government Employees or Contractors
a. In General
b. Military Personnel
c. Disclosure of Confidential Information
2. Legislators' Speech
3. Speech in Public Schools
4. Speech Rights in the Prison Context
5. Government Funding of Speech—Tax Exemptions or Deductions .
E The Right Not to Speak
1. Generally
2. Anonymous Speech—Compelled Disclosure of the Speaker's Identity.
3. Compelled Contributions to Objectionable Speech
4. Compelled Access for the Speech of Others
G. Freedom of the Press
1. General Principles
2. Newsgathering
a. In General
b. Justice and the Press
i. Access to Judicial Proceedings and Records Free Press and Fair Trial
ii. Sanctions for Out-of-Court Publications that Comment upon a Pending Case
iii. Judicial Disciplinary Proceedings
c. Access to Prisons
3. Taxation of the Press
4. Government-Enforced Access to the Press
5. Governmental Demand of Information from the Press
6. The Electronic Media
a. Radio—Television
b. Cable TV
c. Internet
PART II: FREE SPEECH PLUS CONDUCT
A. In General
B. Time, Place, or Manner Restrictions
C. Expressive Activity on Property Owned or Controlled by the Government (The "Public Forum" Doctrine)
1. Types of Fora—Standards of Review
2. Permit Requirement
3. Particular Applications
a. Court Grounds and Adjacent Sidewalks
b. "No-Campaign Zone" Around Polling Places
c. Military Bases—Streets and Sidewalks Located Within Military Reservations
d. Prisons
e. Public Libraries
f. Airport Terminals
g. Property Owned or Controlled by the U.S. Postal Service
i. Mail Boxes—Mail Regulations
ii. Postal Sidewalks
h. School Newspaper—School Facilities
i. School's Internal Mail System
j. School Administration Meetings
k. Charity Drive in the Federal Workplace
1. Public Fairgrounds
m. Advertising Space
i. Advertising on City Buses
ii. Advertising on Utility Poles
n. Government Funding of Expressive Activities
o. Broadcasting Stations
p. Camping in Parks
q. Anti-Noise Regulations
r: Religious Speech on Public Property
D. Particular Types of Expressive Conduct
1. Assembly
2. Picketing
a. In General
b. Residences or Dwellings
c. Schools
d. Courthouses
e. Embassies
f. Abortion Clinics—Health Care Facilities
g. Business Places—Labor Picketing
3. Leafletting
4. Financial Solicitation
5. Door-to-Door Canvassing, Pamphleteering, and Soliciting
6. Display of Signs
7. Symbolic Conduct
a. In General
b. Contemptuous Treatment of the American Flag
8. Access to Private Property for Speech Activities
PART III: FREEDOM OF EXPRESSIVE ASSOCIATION
A. General Considerations
B. Guilt or Liability by Association
C. Associational Privacy
D. Restrictions on Particular Associational Activities
1. Boycott
2. Litigation
3. In the Prison Context
E. The Right Not to Associate
1. Generally
2. Compelled Membership
3. Compulsory Fees
a. Compelled Contributions to Trade Unions
i. In General
ii. Procedural Safeguards
iii. Appropriate Remedies
b. Compulsory Dues to State Bars
F. Freedom of Political Association
1. General Considerations
2. Organization and Internal Affairs of Political Parties Selection of Party Nominees
3. Ballot Access
4. Freedom of Political Association of Public Employees
5. Campaign Finance
a. Contributions or Expenditures Limitations
i. In General
ii. Contribution Restrictions
iii. Expenditure Restrictions
iv. Party Contributions and Expenditures
v. Corporate Financing
vi. Contributions by Minors
vii. Referenda
b. Record-Keeping and Disclosure Requirements
c. Government Funding
CHAPTER 10: SUBSTANTIVE PROTECTION OF PROPERTY RIGHTS AND ECONOMIC INTERESTS
A. The Takings Clause
1. Introduction
2. The "Public Use" Requirement
3. What Constitutes "Property"
4. What Amounts to a "Taking" of Property
a. Formal Condemnation
b. Physical Intrusions and Regulatory Restrictions
i. General Considerations
ii. Physical Takings
iii. Regulatory Takings
c. Destruction of Property in Emergency Situations
d. Government Liability for Property Damage Caused by Others
e. Forfeiture of Property Used Illegally
f. Abandoned Property
5. Just Compensation—Remedial Questions
6. Standing—Recipient of the Compensation
B. Other Limits on Economic Regulations
1. In General—Substantive Economic Due Process
2. Restrictions on Professional Freedom
3. Restrictions on Freedom of Contract
a. Generally
b. Impairment of Contracts
i. Federal Legislation and Due Process
ii. State Legislation and the Contract Clause
4. Utility Regulation
5. Governmental Price Control
6. Liability Limitation
7. Retroactive Economic Legislation
a. In General
b. Retroactive Taxation
c. Imposition of Retroactive Liability
8. Limitations on Fiscal Powers
9. The Commerce Clause
a. Federal Commerce Power
b. Restrictions on State Regulatory Powers
10. The Bankruptcy Clause
11. The Patent and Copyright Clause
CHAPTER 11: EQUAL PROTECTION
A. General Principles
B. Classifications Based on Race or Ethnic Ancestry
1. Historical Development
a. The Fourteenth Amendment and the "Separate but Equal" Doctrine
b. The Fifth Amendment and And-Japanese Measures During World War II
2. Applicable Standard of Review
3. Racial Information
4. Differential Treatment of Indian Tribes
5. Affirmative Action—Benign or Remedial Racial Discrimination
6. De Jure/ De Facto Racial Discrimination
a. Generally
b. Selective Prosecution
c. Jury Selection
d. Capital Sentencing
e. In the School Context
7. Remedying Segregation
a. Public Schools and Universities
b. Desegregation and Private Schools that Discriminate Racially
c. Public Parks and Other Recreational Facilities
d. Prisons
e. Housing
8. Repeal of Remedies and Restructuring of the Political Process ..
C. Gender Classifications
1. In General—Standard of Review
2. Particular Applications
a. Family Law
i. Distinctions Between Unwed Mothers and Fathers
ii. Management of Joint Property of Spouses
iii. Child Support
b. Pregnancy Classifications
c. Welfare Benefits
d. Higher Education
e. Athletic Programs
f. Prohibition of Liquor Sales
g. Statutory Rape
h. Employment as a Prison Guard
i. In the Military Context
j. Jury Selection
3. Benign or Compensatory Gender Discrimination
4. De Jure/ De Facto Gender Discrimination
D. Classifications Based on Illegitimacy
E. Alienage Classifications
1. Federal Regulation
2. State Legislation
a. The Supremacy Clause
b. The Equal Protection Clause
i. Generally—Standard of Review
ii. Economic Benefits
iii. Occupational Activity—The "Public Function" Exception
iv. Illegal Aliens
F. Age Classifications
G. Classifications Based on Mental Retardation
H. Classifications Based on Sexual Orientation
I. Electoral Franchise
1. The Right to Vote
a. In General—Standard of Review
b. Voter Residency and Registration Requirements
c. Poll Taxes—Property Qualifications
d. Literacy Tests
e. The Fifteenth Amendment
f. Absentee Voting
g. Disenfranchisement of Convicted Felons
2. Candidacy Qualifications
3. The "One-Person, One-Vote" Principle—Apportionment.
a. Congressional Elections
b. State Elections
c. Judicial Redistricting
4. Racial Gerrymandering
5. Political Gerrymandering
6. Equality in the Counting and Recounting of Votes
J. Economic and Social Legislation
1. In General
2. Protection of Legitimate Expectations
3. Regulation of Economic Activities
4. State Taxation
5. Welfare Benefits
6. Wealth Discrimination
7. Education
K. Government Employment
L. Remedial Issues
M. State Laws Against Private Discrimination
The Constitution of the United States
Table of Cases
Subject Matter Index

Headline 3

insert content here

Wordtrade.com
Law & Policy

Review Essays of Academic, Professional & Technical Books in the Humanities & Sciences

US Constitutional Law

Headline 3

Wordtrade.com Law & Policy

Review Essays of Academic, Professional & Technical Books in the Humanities & Sciences

US Constitutional Law

Headline 3

Wordtrade.com
Law & Policy