Expert answer:Constitutional Law – Final Assignment
Expert answer:These are the chapters you will find the answer inSegment
Nine: November 7 & 9The
Exercise of State PowerTextbook:
pp. 416-447Segment
Ten: November 14 &16 & 28The
Constitution and the Native American TribesTextbook:
pp. 448-492Segment
Eleven: November 30 & December 5 & 7The
Contract Clause & Takings ClauseTextbook:
pp. 493 – 552, 535-541I will send
a sample of the essay’s and one essay he graded me on with his feed back (
Structure_of_government )+ the BookThe total
pages would be NOT more than 2.5 for the questions, and one page for the
citations
american_constitutional_law__volume_i_the_structure_of_government_volume_1_10th.pdf
final_assignment_instructions.docx
sample_paper.docx
structure_of_government.docx
Unformatted Attachment Preview
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Westview Press was founded in 1975 in Boulder, Colorado, by notable publisher and intellectual Fred
Praeger. Westview Press continues to publish scholarly titles and high-quality undergraduate- and
graduate-level textbooks in core social science disciplines. With books developed, written, and edited
with the needs of serious nonfiction readers, professors, and students in mind, Westview Press honors
its long history of publishing books that matter.
Copyright © 2017 by Westview Press
Published by Westview Press,
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A CIP catalog record for the print version of this book is available from the Library of Congress
EBOOK ISBN: 978-0-8133-5030-1
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About the Authors
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 Understanding Clarence Thomas: The
Jurisprudence of Constitutional Restoration (2014), 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 currently serves
as a member of the California Advisory Committee, US Commission on Civil
Rights.
G. Alan Tarr is Director of the Center for State Constitutional Studies and Board
of Governors Professor of Political Science at Rutgers University, Camden. 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 co-editor of the threevolume 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.
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To the Memory of Herbert J. Storing
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Contents
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 POWER
The 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 Readings
CASES
Marbury v. Madison (1803)
Eakin v. Raub (1825)
Cooper v. Aaron (1958)
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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 Readings
CASES
McCulloch v. Maryland (1819)
United States v. Comstock (2010)
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)
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THE EXECUTIVE BRANCH
The Aims of the Framers
Grants of Power and Their Use
Implied Powers
Prerogative Powers
Notes
Selected Readings
CASES
National Labor Relations Board v. Noel Canning (2014)
Myers v. United States (1926)
Morrison v. Olson (1988)
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United States v. Nixon (1974)
Clinton v. Jones (1997)
In re Neagle (1890)
Youngstown Sheet & Tube Company v. Sawyer (1952)
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WAR AND FOREIGN AFFAIRS
The Interbranch Distribution of Power
The Foundation and Extent of the Foreign-Affairs Power
War and Individual Rights
Notes
Selected Readings
CASES
The Prize Cases (1863)
The War Powers Resolution (1973)
Authorization for Use of Military Force (2001)
United States v. Curtiss-Wright Export Corporation (1936)
Missouri v. Holland (1920)
Medellin v. Texas (2008)
Zivotofsky v. Kerry (2015)
Ex parte Milligan (1866)
Korematsu v. United States (1944)
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)
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FEDERALISM
Federalism 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 Readings
CASES
The Judiciary Act of 1789
Cohens v. Virginia (1821)
Coyle v. Smith (1911)
Baldwin v. Montana Fish and Game Commission (1978)
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Dred Scott v. Sandford (1857)
New York v. United States (1992)
Printz v. United States (1997)
Alden v. Maine (1999)
The Civil Rights Cases (1883)
Jones v. Alfred H. Mayer Company (1968)
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THE EXERCISE OF NATIONAL POWER
The Commerce Power
The Taxing Power
The Spending Power
Health Care and the Constitution
Limitations on National Power
Notes
Selected Readings
CASES
Gibbons 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)
National Federation of Independent Business v. Sebelius (2012)
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THE EXERCISE OF STATE POWER
Constitutional Principles
Preemption
Negative Implications of the Commerce Clause
State Regulation and the Modern Court
The Role of the Court
Notes
Selected Readings
CASES
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Arizona 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 AND NATIVE AMERICAN TRIBES
Native 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 Readings
CASES
Johnson 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 CLAUSE
Marshall’s Expansion of the Contract Clause
The Decline of the Contract Clause
A Continued Relevance?
Notes
Selected Readings
CASES
Fletcher v. Peck (1810)
Dartmouth College v. Woodward (1819)
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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)
Taylor v. City of Gadsden (2013)
12 ECONOMIC DUE PROCESS AND THE TAKINGS CLAUSE
The 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 Readings
CASES
The 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)
Horne v. Department of Agriculture (2015)
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 AMERICA
JUSTICES OF THE SUPREME COURT
GLOSSARY OF COMMON LEGAL TERMS
TABLE OF CASES
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Preface
merican Constitutional Law, Tenth Edition, is designed as a basic text for
courses in national powers and civil liberties. This substantially revised and
updated edition features the major constitutional controversies and cases either
not included in, or decided since the publication of, the Ninth Edition. This is
perhaps our most extensive revision of the casebook from one edition to another;
we have added sixteen new cases and deleted and moved twenty-six cases to our
new website (www.westviewconlaw.com).
Volume I now includes: National Labor Relations Board v. Noel Canning
(2014), which restricted the president’s power to make recess appointments;
Zivotofsky v. Kerry (2015), which affirmed the president’s exclusive power to
recognize foreign states; Comptroller of the Treasurer of Maryland v. Wynne
(2015), which reflected the Court’s continued embrace of the dormant commerce
clause; Adoptive Couple v. Baby Girl (2013), which revealed the Court’s
increasing willingness to depart from the standard canons of construction of federal
Indian law; Taylor v. City of Gadsden (2013), in which a federal district judge
rejected a contract clause objection to a city’s changes in the public pensions of
police and fire personnel; and Horne v. Department of Agriculture (2015) and
Koons v. St. Johns River Management District (2013)—two recent Takings Clause
cases.
Volume II now includes: McDonald v. Chicago (2010), which incorporated the
Second Amendment to apply to the states; Walker v. Texas Division, Sons of
Confederate Veterans Inc. (2015) and McCullen v. Coakley (2014), both of which
addressed free speech issues; Burwell v. Hobby Lobby Stores Inc. (2014), which
concerned the protection of religious liberty; Los Angeles v. Patel (2015),
Maryland v. King (2014), and Riley v. California (2014), all of which dealt with
Fourth Amendment questions; Shelby County v. Holder (2013), which found
Section 4 of the Voting Rights Act unconstitutional, and Obergefell v. Hodges
(2015), the Court’s landmark decision regarding same-sex marriage.
As in previous editions, our approach to these subjects is based on three major
premises. First, the study of the Constitution and constitutional law is of
fundamental importance to a full and coherent understanding of the principles,
prospects, and problems of America’s democratic republic. Cases should be
examined not merely to foster an appreciation of what court majorities have
thought of particular issues at certain points in time (although that is obviously
important), but also to gain a deeper and fuller understanding of the principles at
the very heart of the American constitutional system. To that end, this text
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emphasizes precedent-setting cases and presents comprehensive expositions of
alternative constitutional positions. Substantial excerpts from cases and other
constitutionally significant pronouncements have been included so that students can
grapple with the arguments and justifications for these alternative positions. To
ensure that the best arguments on all sides of a constitutional question are
presented, we have included extensive extracts of both concurring and dissenting
opinions.
Second, no interpretation of the Constitution can be evaluated properly without
an appreciation of what those who initially drafted and ratified the Constitution
sought to accomplish. The text incorporates documentary evidence in seeking to
identify and explain the original purposes of the Constitution and the means
provided for the achievement of those purposes. This inquiry into the Framers’
understanding of the Constitution, in turn, furnishes one of the criteria for
evaluating judicial decisions and constitutionally significant pronouncements from
the executive and legislative branches.
Third, the study of the Constitution involves much more than an examination of
its judicial interpretation. The Constitution is not merely what the Supreme Court
says it is; its words are not so many empty vessels into which justices can pour
meaning. Accordingly, this volume examines the interpretations of a variety of
sources. The original intent of the framers, the original understanding of the
ratifiers, and the original public meaning of the words and phrases of the
Constitution are important sources. Another, equally indispensable source is, of
course, the Supreme Court, whose decisions have influenced so profoundly our
understanding of the Constitution and its principles. And because other
governmental bodies have contributed significantly to the overall interpretation of
the Constitution, this text includes decisions of the lower federal courts and state
judiciaries and also extrajudicial materials of constitutional significance such as
certain congressional acts and resolutions and executive orders.
As we approach constitutional questions throughout this text, we begin by
turning to the Framers. We do so, however, not so much for specific answers as for
general guidance concerning what the Constitution was designed to accomplish.
Obviously, no interpretation can be expected to conform strictly to the expectations
of the Framers. Other legitimate approaches may also contribute to an
understanding of the Constitution, relying variously on analysis of the text itself,
judicial precedent, constitutional doctrine, logical reasoning, adaptation of
constitutional provisions to changing circumstances, and a concern for the
consequences of any particular decision. All these approaches are described in
Chapter 1.
The structure of the volumes might be seen as a reflection of James Madison’s
observation in The Federalist, No. 51, that “in framing a government which is to
be administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place; oblige it to
control itself.” Chapter 1 explores in general how the Constitution was designed to
resolve this difficulty, and Chapter 2 introduces the reader to the actual process of
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constitutional adjudication. The remainder of this two-volume work systematically
examines how the Constitution and its amendments not only grant the national and
state governments sufficient power to control the governed but also oblige these
governments to control themselves. Chapters 3 through 6 of Volume I consider the
distribution of power in the national government, specifically exploring how the
constitutional scheme of separation of powers and checks and balances both grants
and controls power. Because of the importance of the distribution of power among
the branches of the national government, we devote separate chapters to the
judiciary, Congress, the presidency, and war and foreign affairs. Chapters 7 through
11 of Volume I consider the distribution of power between the national government
and the states and between the national government and Native American tribal
governments, focusing on how the division of power among various governments
in the United States helps to advance the ends of the Constitution. Chapter 12 (also
included as Chapter 4 in Volume II) and Chapters 3 through 11 of Volume II shift to
an examination of the distribution of power between the government and the
individual. The emphasis in these chapters is not so much on institutional
contrivances that oblige the government to control itself as on the Bill of Rights and
those subsequent amendments that guarantee specific rights and liberties, an
emphasis that illuminates the way in which our most precious rights and liberties
have increasingly become dependent for their vindication not upon constitutional
structure but upon what The Federalist called mere “parchment barriers.”
With the exception of the first two chapters, each chapter opens with an
introductory essay that is then followed by cases and, where appropriate,
extrajudicial materials. Each essay ends with extensive notes that provide valuable
explanatory details and references to additional materials and a list of suggested
readings, including essays in The Federalist, additional cases, and scholarly books
and articles. Each case also has its own introductory headnote, which provides
historical perspective, indicates where the case stands in relation to current law, and
gives the final court vote. Some cases have endnotes that elaborate on the shortand long-term consequences of the decision. The text includes three appendixes:
the Constitution of the United States, a list of Supreme Court justices, and a table
of cases.
We encourage our readers to visit our newly revamped and updated website at
westviewconlaw.com for additional cases and other resources in understanding the
Supreme Court and constitutional law, including links to primary sources and
relevant blogs and websites. The additional cases, numbering more than 150 and
formatted identically to those included in the casebooks, are organized by volume
and chapter. With the exceptions of Chapters 1 and 2, each of the chapters will
have the deleted cases found in past editions, cases that we edited for the website
in the past but were never included in subsequent editions, and new cases decided
after the pu …
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