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Oxford Law Citator
Contents
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Preliminary Material
Contents
Contributors
Main Text
Ch.1 Introduction: The Handbook of the United States Constitution
Bibliography
Part I History
Ch.2 The Constitution from 1620 to the Early Republic
I Ideas and Experiences that Shaped the Constitution
II The Diverse Colonies
III From Colonies to States
IV The Confederation and the Critical Period
V The Politics of the Constitutional Convention
VI The Design of the U.S. Constitution
1 Congress
2 The Executive
3 The Judiciary
4 Dual National and State Sovereignty
5 Slavery
6 Federalism and the Division of Other Government Powers
7 Rights
8 Constitutional Amendments and the Ratification Process
9 The Finished Constitution
VII Ratification
VIII The Bill of Rights
IX The Constitution in the Early Republic
1 Political Parties
2 Slavery
3 Congressional Development
4 President and Executive Branch
5 The Judiciary
X The Enduring Constitution
Bibliography
Ch.3 Constitutional Developments from Jackson through Reconstruction
I Constitutional Politics and Constitutional Law
II Constitutional Issues in the Jacksonian Era
1 The Constitutional Politics of State Rights
2 “King Andrew” and the Increased Power of the President
3 Equal Rights and Democracy
4 The Supreme Court and Constitutional Issues in the Jacksonian Era
5 The Constitutional Issues of Slavery
6 The Slavery Issue in the Courts
III Constitutional Issues During the Civil War
1 Secession
2 Lincoln, Civil Liberties, and Emancipation
3 The Accretion of Federal Power
4 Constitutional Politics in Wartime
5 The Courts and the Civil War
IV The Constitutional Issues of Reconstruction
1 Restoring the Southern States to Normal Relations in the Union
2 Impeachment
3 The Elections of 1868, the Fifteenth Amendment, and Woman Suffrage
4 Southern Instability and Federal Protection of Rights
5 The Supreme Court and Reconstruction
Bibliography
Ch.4 The Gilded Age through the Progressive Era
I Reorienting Constitutional Government
1 From Neutral to Purposive Government
2 From Republic to a “New Democracy”
3 New Policies, the New State, and the “Living” Constitution
4 A New State: Continuity or Break?
II The Tranformation of Constitutional Structures
1 The Expansion of Federal Judicial Power
2 Executive Power and Administration
3 Courts versus the People: Judicial Review as a Problem and the Birth of (Contemporary) Constitutional Theory
4 The Relation of National Government to the States (Federalism)
III Constructing Modern Citizenship: Civil Rights and Civil Liberties
1 Inclusion and Exclusion: Constitutional Equality
2 The New Civil Libertarian Freedom
IV Conclusion
Bibliography
Ch.5 From the New Deal through the Reagan Revolution
I The New Deal
1 Court-Packing
2 The New Deal Revolution
II War
1 Flag Salute
2 Japanese-American Internment
3 Nazi Saboteurs
4 Cold War
III Civil Rights
1 Voting and Housing
2 Higher Education
3 Brown
4 Massive Resistance
IV The 1960s
1 Civil Rights
2 Reapportionment
3 The Bill of Rights and Criminal Procedure
4 Religion
5 Freedom of Expression
V Nixon’s Court
1 Continuing Liberal
2 Turning Conservative
VI A Republican Court
1 Capital Punishment
2 Religion
3 Discrimination
4 Affirmative Action
5 Privacy
6 Robert Bork and the Reagan Revolution
VII Conclusion
Bibliography
Ch.6 The Reagan Revolution to the Present
I Fending off Expansions of Liberal Activism
II Cutting Back on Existing Liberal Activism
III Calls for New or Revitalized Conservative Activism
Bibliography
Part II Political Science
Ch.7 Constitutions as Basic Structure
I Introduction
II Structure, Substance, and Confederation
III Bottom-Up Forces: The Dynamics of Participation
IV Judicial Review
V Conclusion
Bibliography
Ch.8 The Constitutional Politics of Congress
I Congress and the Constitution
Lawmaking.
Legislation Enacted in Response to Judicial Decisions.
Confirmation of Judges and Justices.
Court Curbing and Constitutional Amendments.
Political Questions and Other Matters Not Subject to Meaningful Judicial Review.
Congress in Court.
Summary.
II Constitutional Interpretation in Congress: Changes over Time
The Early Republic.
The Modern Congress.
III Assessing Congress’s Capacity to Interpret the Constitution
Impediments to Constitutional Interpretation.
Party Polarization and Constitutional Interpretation.
IV Conclusion
Bibliography
Ch.9 The Constitutional Politics of the Executive Branch
I Representation
II Formal and Informal Powers
III Unilateralism and Extraordinary Powers
IV Extraordinary Powers
V War
Bibliography
Ch.10 The Constitutional Politics of the Judiciary
I The Constitutional Politics of Judicial Structure
II The Constitutional Politics of Judicial Personnel
III The Constitutional Politics of Judicial Power
IV Constituting Judicial Politics
Bibliography
Ch.11 The Uneasy Place of Parties in the Constitutional Order
I The Unified People and the Constitution
II The Divided People and the Constitution
III Constitutional Anti-Partisanship
IV Parties and the Separation of Powers
V The Promise of Party Government
VI Constitutional Law: Shaping Parties
VII Unconstitutional Parties
VIII Conclusion
Bibliography
Ch.12 Social Movements and the Constitution
I Social Movements, Interest Groups, and Political Parties
II Mechanisms of Influence
1 Direct Effects: Of Constitutional Amendments and Political Structure
2 Political Parties
(1) The labor movement, the New Deal, and the Democratic Party.
(2) The civil rights movement and the Democratic Party.
(3) The “Christian Right” and the Republican Party.
3 Social Movements, the Court, Litigation Campaigns, and Political Parties
4 Culture
III The Normative Dimension
IV Conclusion
Bibliography
Ch.13 The Administrative State: Law, Democracy, and Knowledge
I Law
II Democracy
1 Principal-Agent Theories
Positive principal-agent models.
The place of the positive principal-agent metaphor in politics.
Normative theorizing.
2 Representative Bureaucracy
III Knowledge
IV Conclusion
Bibliography
Ch.14 The Resilience of the American Federal System
Preliminary Material
I Centralization and Decentralization in the American Federal System
1 The Centralization Claim
2 Federal Goals and the Importance of Boundaries
3 Protecting the Boundaries
II The Benefits of Fluctuation
1 Problems
(a) Opportunism
(b) Imperfect Safeguards
(c) Dynamic Environment
2 Properties of Resilient Systems
3 The System of Safeguards
(a) Imperfect Safeguards and Compliance
(b) Imperfect Safeguards and Adaptation
III Discussion
Bibliography
Ch.15 Empire
I Introduction
II Sovereignty and the Territories
III Internal Empire
IV American Indians
V Extraterritoriality
VI Conclusion
Bibliography
Ch.16 The Evolution of America’s Fiscal Constitution
I Founding Fathers Evoke British Constitutional Rights and Inherit Wartime Debt
II Fiscal Issues Shape a New Constitution and Traditional Limits on Debt
III Gallatin Refines the Traditional Fiscal Constitution
IV Presidents Expand Budgetary Influence
V Central Banking and Implied Powers
VI The Civil War Gives Rise to New Monetary and Tax Policies
VII Congress Obscures its Authorizations of Debt
VII Noncontributory Social Insurance Challenges Congressional Control of Spending
VIII The Traditional Fiscal Constitution Collapses
IX The Problem With Limiting Debt by Constitutional Amendment
Bibliography
Part III Law
Ch.17 The Executive Power
I Understanding Executive Power: Methodological Considerations
II The Central Problem and the Supreme Court’s Perspective
III Shining the Lamp of Experience on War Powers and Foreign Affairs
IV The Outer Limits of Executive Power: Non-Enforcement, Emergencies, and “Prerogative Power”
1 Non-enforcement of the Law
2 Emergencies and Prerogative Power
V Conclusion
Bibliography
Ch.18 Enforcing the Fifteenth Amendment
Introduction
I Reconstruction and its Aftermath, 1870-1890
II Dormancy: Non-enforcement of the Fifteenth Amendment, 1890-1965
III Determined Enforcement, 1965-1986
IV Stasis and Skepticism, 1986-2005
V Reauthorization and the Roberts Court
Conclusion
Bibliography
Ch.19 The Power of Judicial Review
I What is Judicial Review?
II Is Judicial Review Necessary to Constitutionalism?
III How Should Judicial Review be Exercised?
IV How is Judicial Review Exercised?
V Does Judicial Review Matter?
VI Conclusion
Bibliography
Ch.20 Delegation, Accommodation, and the Permeability of Constitutional and Ordinary Law
I Introduction
II Delegation and its Aftermath
III Accommodation and Methodological Inconsistency
III The Court’s Critics
IV The Permeability of Constitutional and Ordinary Law
Bibliography
Ch.21 Federalism
I Introduction
II Federalism’s Tensions
1 Constitutional Design and Political Necessity
2 The Nature of the Union
3 Federalism’s Values
4 Law, Politics, and the Court
5 Structure and Balance
III The “Compound Republic” and “Dual” Federalism
1 Dual Federalism
2 Federal Extent and National Operation
3 The Federal Judiciary and Its Jurisdiction
4 The Heyday of Dual Federalism
IV Rights and Federal Structure
1 Citizenship and Rights
2 The Civil War Amendments
3 The Rights Revolution
4 Change, Continuity, and Tensions
V The New Deal Revolution and “Cooperative Federalism”
1 New Deal Federalism
2 Judicial Translation
3 Unresolved Tensions
VI Conclusion
Bibliography
Part IV Rights
Ch.22 Equality
I Equality in Early American History and The Emergence of Class Legislation as a Framework
II The Post-Bellum Upheaval and Settlement of Equality
III Women’s Equality and Transformation of the American State in the Early Twentieth Century
IV Retrenchment and Transformation Around Race in the Late Twentieth and Early Twenty-First Centuries
V The Flowering of Equal Protection Regarding Gender
VI The Rise of Equality Jurisprudence with Respect to Sexual Orientation
VII Poverty Jurisprudence and Jurisgenerative and Jurispathic Paths
VIII Conclusion
Bibliography
Ch.23 Liberty
I Introduction
II Incorporation
III Substantive Due Process
1 1887 to 1937
2 1937 to 1973
3 1973 to the Present
IV Three Competing Understandings of Liberty and Tradition in the Due Process Inquiry
V The “Double Standard” Concerning Economic Liberties Versus Personal Liberties: “The Ghost of Lochner ”
VI The Stringency of the Protection of Liberty Under the Due Process Clauses
VII Criticisms of Constitutional Protection of Liberty
VIII Conclusion
Bibliography
Ch.24 Property in the United States Constitution
I Conventionalism and Essentialism
II Classical Laissez-Faire
III The Critique of Laissez-Faire and the Rise of Regulatory Property
IV Constitutional Property in the Age of Ecology
V Redistribution and Development
VI Normative Property Use and Federalism
VII Federal Property and Federal Power
VIII The Ambitions and Limits of Regulatory Property
IX The Jurisprudence of Neoliberal Political Economy
Bibliography
Ch.25 Gender, Sex, and the U.S. Constitution
I One And A Third Centuries of Constitutional Neglect (1787-1920)
II From Toothless Equal Protection to Equal Protection with Bite: 1868-1976
1 Unequal “Equal Protection”: 1868-1970
2 Two-Front Sexual Revolution in Constitutional Law, 1971-1976
(a) Gender Equity
(b) Reproductive Freedom (and Other New Fundamental Rights)
(c) The Gender Equity Revolution, or Constitutional Amendment via Judicial Interpretation
III Post-Revolution Constitution on Gender (Post-1976) and Sex (Post-1973)
1 Sex and the Constitution
2 Gender Equity after Craig v. Boren
IV Conclusion
Bibliography
Ch.26 Racial Rights
I Introduction
II History
1 Slavery
2 Reconstruction
3 Jim Crow
4 The Modern Court
III Doctrine
1 Equal Protection
(a) Intent
(b) Effects
2 Affirmative Action
(a) Past Discrimination
(b) Prospective Diversity
3 Voting Rights
(a) Redistricting
(b) Voting Rights Act
IV Theory
1 Originalism
2 Process Theories
3 Moral Theories
4 Popular Theories
5 Critical Race Theory
V Conclusion
Bibliography
Ch.27 Autonomy (of Individuals and Private Associations)
I Personal Autonomy
II The Fourteenth Amendment
III The First Amendment—Freedom of Speech and Association
IV The First Amendment— Freedom of Religion
V The Second Amendment
VI The Sixth Amendment
VII Economic Autonomy
VIII Waivers of Autonomy
IX Conclusion
Selected Annotated Bibliography: Personal/Individual Autonomy Under The U.S. Constitution
Ch.28 Citizenship
I The Evolution of the Text
II Federalism and Fragmentation
III Rights and Duties of Citizenship
1 Rights of Citizens
2 The Right to Citizenship
3 Duties of Citizenship
4 Women’s Citizenship
IV Cross-Border Rights
1 Extraterritoriality of Constitutional Rights
2 Rights Constraints on Naturalization and Immigration Policy
V Conclusion
Bibliography
Ch.29 Religion
I Introduction
II Religion
III Drafting the First Amendment
IV Religion in The United States
V Incorporation
VI Establishment Clause
VII Free Exercise Clause
VIII In the Shadow of the Constitution
IX Conclusion
Bibliography
Ch.30 Free Speech and Free Press
I The Framing, Bill of Rights, and Early Doctrinal Developments
II Initial Supreme Court Cases
III World War I Cases
IV Democracy and Free Expression Transformed
V Free Expression as Constitutional Lodestar
VI Doctrinal Wavering and Inconsistent Results
VII Recent Developments: The “Haves” Come Out Ahead
VIII A Coda on the Free Press
Bibliography
Ch.31 Criminal Procedure
I Introduction
II Criminal Investigations and the Revolution in Technology
III Criminal Adjudication and the Dominance of Plea Bargaining
IV Race and the Limits of Constitutional Remedies
V Mass Incarceration and Procedural Rights
Bibliography
Ch.32 Habeas Corpus
I Introduction
II Habeas Corpus in England and Empire
1 The Ambit of a Prerogative Writ
2 A Common Law Writ
3 The Impact of Statute
III From Colonial to Constitutional Writ
1 Writing the Suspension Clause
2 The Privilege of the Writ
3 Statutory Writ
4 John Marshall’s Writ
5 The Persistent Common Law Writ
IV Habeas Corpus on the Vertical Axis
1 Slavery and Habeas Corpus
2 Reconstructing the Habeas Constitution
3 Full Review of State Trials
4 The Struggle over Finality
V Habeas Corpus on the Horizontal Axis
1 Detention without Trial
2 National Security in a New Republic
3 National Security, 1865 to 2001
4 The Common Law Writ Revived
VI A Prerogative Writ in a Republican Constitution
Bibliography
Ch.33 Native Americans
I The Eras of Federal Indian Law and Policy
1 Colonial Era (1700-1770s)
2 The Treaty Era (1780s-1871)
3 The Post-Treaty Era (1887-1970s)
4 The Self-Determination Era (1970-present)
II Foundational Principles of Federal Indian Law
1 Federal Government Supremacy in Indian Affairs
2 Inherent Tribal Government Authority
III Key Terms
1 Indian
2 Indian Tribe
IV Federal-Tribal Relations
1 Congressional Plenary Power in Indian Affairs
2 Federal Trust Relationship with Indians and Indian Tribes
3 Indian Country Criminal Jurisdiction
V State-Tribal Relations
1 Federal Preemption of State Laws
2 Public Law 280
3 Indian Child Welfare Act
V Tribal Governance
1 Powers of Indian Tribes
(a) Tribal Governance Structures
(b) Indian Civil Rights Act
(c) Tribal Membership
(d) Tribal Justice Systems
(e) Power to Tax and Regulate Members and Nonmembers
(f) Tribal Criminal Jurisdiction
(g) Sovereign Immunity
2 Tribal Economies
VI American Indian Law in Light of Developing International Law Principles
VII Challenges for the Future
Bibliography
Ch.34 Positive Rights
I Distinguishing Positive Rights
II Arguments That The U.S. Constitution Excludes Positive Rights
III Contesting the Distinction Between Positive and Negative Rights
IV Arguments that The U.S. Constitution Contains Positive Rights
V The Supreme Court and Positive Rights
VI Beyond Judicial Enforcement of the U.S. Constitution
Conclusion
Bibliography
Ch.35 The Right to Bear Arms
I The Changing Meaning of the Right to Bear Arms in American History
II The English Origins of the Right to Bear Arms
III The Origins of the Second Amendment
Iv Well Regulated: The Antebellum Right To Bear Arms
V The Civil War, Reconstruction, and the Emergence of A Federal Second Amendment Jurisprudence
VI Gangster Weapons and the Rise and Fall of the Collective Rights Theory
VII Gun Rights Versus Gun Control: The Contours of the Modern Debate Over the Right to Bear Arms
VIII Sandy Hook, The Second Amendment, and the Future of Gun Regulation
Bibliography
Part V Themes
Ch.36 Constitutionalism
I Origins of Constitutionalism
II Characteristics of Constitutionalism in the United States
III Critical Constitutionalism
IV Conclusion: Constitutional Failure
Bibliography
Ch.37 Emergency Powers
I Introduction
II Constitutional Emergency Powers
(1) Express constitutional grants of power.
(2) Inherent powers.
(3) Constitutional necessity.
III Legislative Accommodations
IV Conclusion
Bibliography
Ch.38 Constitutional Authority
I Derivative Authority
1 Authority Based on the Articles of Confederation: On or Off?
2 Gradations of Derivative Constitutional Authority
II Initial Constitutional Authorization by “The People”
1 Popular Constitutional Authorization: On or Off?
2 Partial Procedural Representation of “the People”
III Standards of Republican Governance
1 Republican Authority: On or Off?
2 Gradations of Republican Authority
IV Foundation-Augmenting Authority
1 Providing Security for Rights of “the People”
2 Partially Securing Rights
V Constitutional Authority Based on Popular Acceptance
1 Popular Affirmation: Thumbs Up
2 Variable Levels of Public Support
VI Multidimensional Constitutional Authority
1 Intersecting Branches of Popularly Rooted Constitutional Authority
2 Constitutional Authority beyond the Founding
Bibliography
Ch.39 Is Constitutional Law Really Law?
I Politics by Another Name?
1 The Issues Are Political
2 The Document Is Vague
3 The Judges Are Political
4 The Politicians Are Judges
5 The Constitution Is a Mere Parchment Barrier
6 The Constitution Reflects Popular Opinion
II Law, Nonetheless?
1 Settled Law: The Text
2 Settled Law: Beyond the Text
3 Parchment Barriers and Law outside the Courts
4 Constitutional Law, Common Law, and Politics
Bibliography
Ch.40 Constitutionalism Outside the Courts
I The Revolt Against Judicial Supremacy
1 Marbury and Departmentalism
2 Judicial Efficacy and the “Hollow Hope”
3 Popular Constitutionalism
II Constitutionalism in Politics
1 Political Safeguards
2 Social Movements
3 Constitutional Construction
4 Administrative Constitutionalism
III Conclusion
Bibliography
Ch.41 State Constitutionalism
I Constitutional Design
1 Frame-of-Government Provisions
2 Rights
3 Policy Provisions
II Constitutional Amendment and Revision
1 Constitutional Conventions
2 Legislature-Referred Amendments
3 Citizen-Initiated Amendments
4 Constitutional Commissions
III Constitutional Development
1 The Role of Amendment Processes in Registering Changes in Constitutional Principles
2 The Role of State Courts in Interpreting Constitutional Provisions
IV Conclusion
Bibliography
Ch.42 Interpretation
I Introduction
II Originalism
1 Who?
2 What?
3 How Much?
4 Judicial Restraint
III Nonoriginalism
1 Structuralism
2 Doctrinalism
3 Consequentialism
4 Pluralism
5 Brown and the Anti-canon
IV Interpretation And Adjudication
1 Constitutional Meaning versus Constitutional Decision Rules
2 Interpretation versus Rhetoric
VI Conclusion
Bibliography
Ch.43 Constitutional Change
I The Motive
II Form Follows Function
1 Constitutional Reform without Amendments
2 Professional Norms and the Limits of Interpretation
3 The Merits of Constitutional Amendments
III Conclusion
Bibliography
Ch.44 The U.S. Constitution and International Law
I Constitutional Founding and Text
II Treaty Law and Other International Agreements
1 Executive Agreements and the Growth of Executive Power
2 Treaty Power Scope and Congress’s Power to Implement Treaties
3 Non-self-executing Treaties, the Changing Force of the Supremacy Clause, and Medellín ’s Rejection of a Presumption Favoring Judicial Enforcement
III Customary International Law: Jurisdiction, Supremacy, and Interpretation
IV Interpretation More Generally
Arguments from the Purpose of Constitutions:
Arguments from Interpretive Practice: The Eighth Amendment and the Due Process Clauses:
Arguments from text:
Arguments from Rule of Law/Coherence:
Arguments from Constitutionalism:
Arguments from Epistemic Humility:
Originalist, Contractiaran Understandings of Constitutional Legitimacy:
Constitutionalism and Democratic Consent.
Coherence of Law with Culture.
Balance in a Federal System:
IV Conclusion
Bibliography
Ch.45 The Constitution in Comparative Perspective
I Introduction
II Debating Comparative Constitutional Law and the Constitution
III The Constitution as Model and Anti-Model
IV The Constitution and the “Migration” of Constitutional Jurisprudence
V From Migration to Translation and Hybridity
VI Conclusion
Bibliography
Ch.46 Education and the Constitution: Defining the Contours of Governance, Rights, and Citizenship
I Introduction
II Education and Constitutional Development: Four Waves of Change in Federalism and National Power
1 First Wave Developments of the Eighteenth Century Era: Debating the Role of Education in a Republic
2 Second Wave Developments of the Nineteenth Century: The “Educational Reconstruction”
3 Third Wave Developments in the Twentieth Century: War and Social Upheaval as Impetuses for Educational Opportunity
4 Emerging Fourth Wave Developments in the Twenty-First Century: Debates over Educational Quality, Choice, and Standards
II The Court Enters the Thicket: Education Cases and Controversies over Fundamental Rights and Civil Liberties
1 Educational Education Controversies as Arenas for Identifying Fundamental Rights: Substantive Liberty and Due Process, Privacy and Autonomy, but No Fundamental Right to Education
2 Education and Freedom of Expression
III Equal Protection and Equal Opportunity in Education Contexts
1 Education and Race
2 Education, Poverty, and Unequal School Funding
3 Equal Educational Opportunity and Gender
4 Equal Educational Opportunity, Alienage and Citizenship Status
IV The Constitution and Civic Education: “Constitutional Education” in the Conventional Classroom and Beyond
1 “Civics” and Constitutional Education in Elementary and Secondary Schools
2 Constitutional Education in Colleges and Law Schools
3 Constitutional Education beyond the Classroom: The Constitution in Civic Life and Culture
V Conclusion
Bibliography
Ch.47 The Economics of Constitutional Law
I Introduction
II Structural Constitutionalism and the Incentives for Political Engagement
1 Standing Doctrine and Political Stakes
2 Constitutional Structures and the Problem of Rent-Seeking Legislation
(a) Bicameralism and Veto Gates (or Negative Legislative Checkpoints)
(b) The Presidential Veto
(c) The Independent Judiciary
3 Political Party Gerrymandering and the Role of Federalism in Shaping Policy Swings
III Substantive Constitutional Doctrines that Promote Political Engagement: the Commerce Clause; Equal Protection Scrutiny; and due Process
IV Agency-Deference Rules, Rent-Seeking, and National Political Engagement
V Conclusion
Bibliography
Ch.48 The Constitution and United States’ Culture
I Popular Versus Professional Culture
II Method and the Social Imaginary
III Culture: American Civil Religion
IV Conclusion: Faith and Reason
Bibliography
Further Material
Table of Cases
Index
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Contributors
Edited By: Mark Tushnet, Sanford Levinson, Mark A. Graber
From:
The Oxford Handbook of the U.S. Constitution
Edited By: Mark Tushnet, Sanford Levinson, Mark A. Graber
Content type:
Book content
Product:
US Constitutional Law [USC]
Series:
Oxford Handbooks
Published in print:
10 September 2015
ISBN:
9780190245757
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3.227.247.17