Jerome A. Barron - Constitutional Law in a Nutshell

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Constitutional Law

In a nutshell

Tenth Edition

J erome A. B ARRON

Harold H. Greene Professor of Law Emeritus
George Washington University Law School

C. Thomas Dienes

Late Lyle T. Alverson Professor of Law Emeritus
George Washington University Law School

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For Kim

and

For Jonathan, David, and Jennifer

Foreword to the Tenth Edition

In this Tenth Edition, I would like to remember my long-time co-author, colleague and friend, Tom Dienes. When we worked on our books, we used to finish each others sentences. With Toms passing, that joyful time is over. This tenth edition of CONSTITUTIONAL LAW IN A NUTSHELL marks some important changes on the Supreme Court. In 2017, Justice Neil Gorsuch succeeded to the seat on the Supreme Court held by Justice Antonin Scalia who died in 2016. In 2018, Justice Brett Kavanaugh succeeded to the seat held by Justice Anthony Kennedy who retired that year.

This edition contains many new Supreme Court cases. Some of them deal with controversial issues, and some break with precedent A few are unanimous decisions, but many are not. They all invoke important issues of constitutional law. The problem is how to integrate them into this new edition without making it too much longer than its predecessor. The solution I have arrived at has been to trim down some of the older cases. I hope I have been careful with my scalpel but that is for you the reader to decide.

A number of important cases are featured in this edition. The judicial review chapter includes a standing case arising out of the perplexing problem of gerrymandering. In Gill v. Whitford, 138 S. Ct. 1916 (2018) , the Supreme Court rejected the claim of individual voters that the legal injury which they alleged extended also to their collective representation in the legislature. Chief Justice Roberts ruled that Article III requires individual and personal injury. The problem with the standing case of the plaintiffs was that it asserted group rights. Even more importantly, a major case of the term, Rucho v. Common Cause , 139 S. Ct. 2484 (2019) , held, 54, per Chief Justice Roberts, that partisan gerrymandering cases were not justiciable. Partisan gerrymandering was deemed to present a non-justiciable political question. In the absence of any constitutional authority or guidelines, the federal courts do not have a license to reallocate political power between political parties.

Justice Kagan, speaking for the dissenters, asserted that the case demanded relief since partisan gerrymandering deprives the citizenry of the right to participate equally in the political process. Yet for the first time, the Court refuses to remedy a constitutional violation.

With respect to the power of the Congress, the Court expanded the anti-commandeering doctrine and held, 72, in Murphy v. National Collegiate Athletic Association (NCAA) , 138 S. Ct. 1461 (2018) , that Congress could no more tell a State what it must not do than it could tell a State what it must do. In a rare case invoking the Enumeration Clause and the Decennial Census, the Court held in Department of Commerce v. New York , 139 S. Ct. 2551 (2019) , per Chief Justice Roberts, that although the Constitution grants authority to Congress and by extension to the Secretary of Commerce to include a question about citizenship on the 2020 Census questionnaire, the Court declined to approve it. The rationale offered by the Secretary to justify the decision was a pretext obviously contrived, and, therefore, the Court remanded the matter. In doing so, Chief Justice Roberts observed, If judicial review is to be more than an empty ritual, it must demand something more than the explanation offered in this case.

In the area of the interaction between the Executive and the Congress, the Court in Gundy v. United States , 139 S. Ct. 2116 (2019) , reaffirmed the non delegation doctrine and ruled that a legislative delegation to the Executive is constitutional as long as Congress has set forth an intelligible principle to guide the delegatees exercise of authority. In the chapter on Due Process of Law, the onward march of the incorporation doctrine was exemplified by Timbs v. Indiana , 139 S. Ct. 682 (2019) , where the Court held that the Excessive Fines Clause of the Eighth Amendment is an incorporated protection applicable to the States under the Fourteenth Amendments Due Process Clause.

In the field of equal protection, this edition incudes two new cases on racial gerrymandering, Bethune-Hill v. Virginia State Board of Elections , 137 S. Ct. 788 (2017) , and Cooper v. Harris , 137 S. Ct. 1455 (2017) . In Bethune-Hill , Justice Kennedy, speaking for the Court, ruled that the three judge district court below had failed to use the appropriate standard in determining whether race impermissibly governed the shape of some of the legislative districts at issue. In Cooper , the Court held that a North Carolina legislative redistricting plan violated the Equal Protection Clause due to the fact that the manner in which the redistricting lines were drawn constituted racial gerrymandering.

As has been the case now for a number of years, a significant portion of the Courts constitutional cases have concerned freedom of expression. A notable case that is included in this edition is Janus v. American Federation of State, County and Municipal Employees , 138 S. Ct. 2448 (2018) . In Janus , the Supreme Court, 54, per Justice Alito, reversed a 40-year old precedent, Abood v. Detroit Board of Education , 431 U.S. 209 (1977) , and ruled that its holding requiring non-union members of a public sector employee union to pay an agency fee for the collective bargaining activities of the union was a violation of the First Amendment.