Paul Brest - Processes of Constitutional Decisionmaking: Cases And Materials

PROCESSES OF CONSTITUTIONAL DECISIONMAKING

EDITORIAL ADVISORS

Rachel E. Barkow

Segal Family Professor of Regulatory Law and Policy

Faculty Director, Center on the Administration of Criminal Law

New York University School of Law

Erwin Chemerinsky

Dean and Professor of Law

University of California, Berkeley School of Law

Richard A. Epstein

Laurence A. Tisch Professor of Law

New York University School of Law

Peter and Kirsten Bedford Senior Fellow

The Hoover Institution

Senior Lecturer in Law

The University of Chicago

Ronald J. Gilson

Charles J. Meyers Professor of Law and Business

Stanford University

Marc and Eva Stern Professor of Law and Business

Columbia Law School

James E. Krier

Earl Warren DeLano Professor of Law

The University of Michigan Law School

Tracey L. Meares

Walton Hale Hamilton Professor of Law

Director, The Justice Collaboratory

Yale Law School

Richard K. Neumann, Jr.

Professor of Law

Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff

John L. Gray Professor of Law

Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law

Faculty Co-Director, Stanford Criminal Justice Center

Stanford Law School

ASPEN CASEBOOK SERIES

PROCESSES OF
CONSTITUTIONAL DECISIONMAKING

Cases and Materials

Seventh Edition

Paul Brest

Former Dean and Professor Emeritus (active)
Stanford Law School

Sanford Levinson

W. St. John Garwood & W. St. John Garwood, Jr.
Centennial Chair in Law
University of Texas Law School

Jack M. Balkin

Knight Professor of Constitutional Law
and the First Amendment
Yale Law School

Akhil Reed Amar

Sterling Professor of Law and Political Science
Yale Law School

Reva B. Siegel

Nicholas deB. Katzenbach Professor of Law
Yale Law School

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eISBN 978-1-4548-9761-3

Library of Congress Cataloging-in-Publication Data

Names: Brest, Paul, author. | Levinson, Sanford, 1941- author. | Balkin, J.
M., author. | Amar, Akhil Reed, author. | Siegel, Reva B., 1956- , author.

Title: Processes of constitutional decisionmaking : cases and materials / Paul Brest, Former Dean and Professor Emeritus (active), Stanford Law School; Sanford Levinson, W. St. John Garwood & W. St. John Garwood, Jr., Centennial Chair in Law, University of Texas Law School; Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School; Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale Law School; Reva B. Siegel, Nicholas deB. Katzenbach,
Professor of Law, Yale Law School.

Description: Seventh edition. | New York : Wolters Kluwer, [2018] | Series: Aspen casebook series | Includes bibliographical references and index.

Identifiers: LCCN 2017060739| eISBN 9781454897613

Subjects: LCSH: Constitutional lawUnited States. | Judicial reviewUnited States. | Separation of powersUnited States. | LCGFT: Casebooks.

Classification: LCC KF4550 .B723 2018 | DDC 342.73dc23

LC record available at https://lccn.loc.gov/2017060739

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To Iris, Hilary, and Jeremy
for the countless hours discussing
the issues in this bookP.B.

To the memory of Robert McCloskey,
a beloved teacher and mentor;
to Paul Brest, a valued friend whose invitation
to collaborate with him on the second edition
of this casebook substantially shaped
my future intellectual development;
and to the University of Texas Law School,
which for a full third-of-a-century has been
remarkably nurturing in every wayS.L.

To my parents,
Bernard and Bettye Balkin,
who gave me their love
and an education in the lawJ.B.

To my students for their inspiration
and to my familyVinita and Vikram, mom and dad,
mummy and poppa, brothers and sisters
for their sustenanceA.R.A.

To Yale, my nephew and my students,
in the belief that possibility lives in memoryR.S.

Summary of Contents

PART ONE
INTRODUCTION: BACKGROUND TO THE CONSTITUTION

PART TWO
CONSTITUTIONAL ADJUDICATION IN THE MODERN WORLD

Preface

Every casebook involves the construction of a canona set of materials and approaches that the editors believe that every student who wishes to master the subject should know. This casebook is no exception. Indeed, we have been particularly conscious of the existing canons of constitutional thought and the kinds of choices that are involved both in the materials presented and in their editing, order, and arrangement. The history of this casebook has been a series of continuing attempts to rethink the existing canon of constitutional law and present a better one. This edition represents our latest views on the subject.

The history of this casebook

The first edition of Processes of Constitutional Decisionmaking, created by Paul Brest, and published in 1975, was born out of personal frustration with the existing methods of teaching constitutional law. Invariably beginning with Marbury v. Madison and related doctrines of judicial review, most casebooks proceeded to examine bodies of substantive doctrine, subject by subject, without much attention to political or historical context. The question of how the courts arrived at their decisions continually arose but was not systematically examined. Nor did casebooks explore the role that legislatures, the executive, and other political institutions (for example, political parties and social movements) played in constitutional decisionmaking. The unspoken and repeated message was that the Constitution was largely what the Supreme Court said it was, and if the Supreme Court had not spoken on a particular subject, there was no constitutional law on the question at all.

The first edition, therefore, focused on the methods of constitutional interpretation and decisionmaking that different actors in the system employed and on the processes through which constitutional doctrine was created. Although much has changed in the books coverage over the years, this basic focus on methods of constitutional interpretation and on the multiple groups and institutions that participate in the creation of constitutional meaning has remained a constant.