University of South Alabama - American Constitutional Law, Volume I

AMERICAN CONSTITUTIONAL LAW

AMERICAN CONSTITUTIONAL LAW

AMERICAN
CONSTITUTIONAL LAW

Volume I

The Structure of Government

Ninth Edition

RALPH A. ROSSUM

Claremont McKenna College

G. ALAN TARR

Rutgers University, Camden

A Member of the Perseus Books Group

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 2014 by Westview Press

Published by Westview Press,

A Member of the Perseus Books Group

All rights reserved. No part of this book may be reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles and reviews. For information, address Westview Press, 2465 Central Avenue, Boulder, CO 80301.

Find us on the World Wide Web at www.westviewpress.com.

Every effort has been made to secure required permissions for all text, images, maps, and other art reprinted in this volume.

Westview Press books are available at special discounts for bulk purchases in the United States by corporations, institutions, and other organizations. For more information, please contact the Special Markets Department at the Perseus Books Group, 2300 Chestnut Street, Suite 200, Philadelphia, PA 19103, or call (800) 810-4145, ext. 5000, or e-mail .

Composition in Adobe Garamond Pro by Cynthia Young

Library of Congress Cataloging-in-Publication Data

Rossum, Ralph A., 1946

American constitutional law / Ralph A. Rossum, Claremont McKenna College, G. Alan Tarr, Rutgers University, Camden. Ninth edition.

pages cm

Includes bibliographical references and index.

ISBN 978-0-8133-4746-2 (e-book)

1. Constitutional lawUnited StatesCases. 2. Separation of powersUnited StatesCases. 3. Federal governmentUnited StatesCases. 4. Civil rightsUnited StatesCases. I. Tarr, G. Alan (George Alan) II. Title.

KF4549.R67 2013

342.73dc23

2013010910

10 9 8 7 6 5 4 3 2 1

About the Authors

Ralph A. Rossum is Henry Salvatori Professor of American Constitutionalism at Claremont McKenna College. He earned his Ph.D. from the University of Chicago and is the author of several books, including The Supreme Court and Tribal Gaming: California v. Cabazon Band of Mission Indians (2011); Antonin Scalias 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 U.S. 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, U.S. Commission on Civil Rights.

G. Alan Tarr is Director of the Center for State Constitutional Studies and Distinguished 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 coeditor of the three-volume 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 U.S. 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.

To the Memory of Herbert J. Storing

A merican Constitutional Law, Ninth Edition, is designed as a basic text for courses in constitutional law and civil liberties. This new and updated edition features the major constitutional controversies and cases either not included in, or decided since the publication of, the eighth edition.

Volume I addresses the commitment of American troops to combat (Authorization for Use of Military Force [2001]), the constitutionality of the federal governments health care initiative (National Federation of Independent Business v. Sebelius [2012]), and the power of the states to regulate illegal immigration (Arizona v. United States [2012]) and to cut retirement and health benefits for public employees in times of economic stringency (Buffalo Teachers Federation v. Tobe [2006]). It also considers recent developments regarding the constitutional status of Native American tribes (Carcieri v. Salazar [2009]) and ensuring due process in court proceedings (Caperton v. A. T. Massey Coal Company [2009]).

Volume II highlights rulings dealing with same-sex marriage (Perry v. Brown [2012]), religious liberty (Hosanna Tabor Evangelical Lutheran Church and School v. EEOC [2012]), racial discrimination (Ricci v. DeStefano [2009]), and equality among taxpayers (Armour v. Indianapolis [2012]). It also considers rulings dealing with the administration of justice (Michigan v. Bryant [2011] and Miller v. Alabama [2011]) and freedom of speech (Holder v. Humanitarian Law Project [2010], Citizens United v. Federal Election Commission [2010], and Snyder v. Phelps [2011]).

As with the previous editions, its 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 Americas 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 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, extensive extracts of both concurring and dissenting opinions have been included.