The Dynamic Constitution: An Introduction to American Constitutional Law and Practice
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In this revised and updated second edition of The Dynamic Constitution, Richard H. Fallon, Jr., provides an engaging, sophisticated introduction to American constitutional law. Suitable for lawyers and non-lawyers alike, this book discusses contemporary constitutional doctrine involving such issues as freedom of speech, freedom of religion, rights to privacy and sexual autonomy, the death penalty, and the powers of Congress. Through examples of Supreme Court cases and portraits of past and present Justices, this book dramatizes the historical and cultural factors that have shaped constitutional law. The Dynamic Constitution, Second Edition combines detailed explication of current doctrine with insightful analysis of the political culture and theoretical debates in which constitutional practice is situated. Professor Fallon uses insights from political science to explain some aspects of constitutional evolution and emphasizes features of the judicial process that distinguish constitutional law from ordinary politics.
“penal-ty,” and not a “tax” (such as that used to fund the Social Security system). Congressional Regulation of State and Local Governments Among the reasons the Constitution limits congressional power (besides protecting individual liberty) is to preserve a central role for state and local governments. Congress can threaten the independence and power of state and local governments in several distinct ways. First, as already discussed, it can assume regulatory authority in traditional
National Federation of Independent Business, 132 S. Ct. at 2677 (Thomas, J., concurring). 20 U.S. Constitution, Article I, Section 8, Clause 18. 21 17 U.S. 316 (1819). 22 545 U.S. 1 (2005). 23 Ibid. at 36 (Scalia, J., concurring in the judgment) (quoting Lopez, 514 U.S. at 561). 24 National Federation of Independent Business, 132 S. Ct. at 2592. 25 See United States v. Butler, 297 U.S. 1, 65 (1936) (describing Madison's view). 26 See ibid. at 65–66. 27 See
of association. Freedom of association is constitutionally protected because it facilitates speech; education can be equally crucial in making speech rights meaningful. Nevertheless, the contrast between Roe and Rodriguez is revealing. Whereas the abortion right is a “negative” right to be free from governmental interference, the asserted fundamental right to education was a “positive” right, which would have taken affirmative governmental steps to implement. If the Court had characterized
(as discussed in the Introduction), the Court sharply altered course. With respect to substantive due process, the signal decision came in West Coast Hotel Co. v. Parrish29 (1937), which upheld a state law mandating a minimum wage for women. Reflecting its dramatic rejection of the Lochner-era assumption that an unregulated market economy provided fair opportunities for the exercise of natural liberty, the Court wrote, “The exploitation of a class of workers who are in an unequal position with
governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The decision in Eisenstadt came near the height of what has been described as a sexual revolution, and it expressed the prevailing spirit of the age. Yet the decision also reflected a more timeless jurisprudential assumption that the Constitution presupposes, and thus authorizes the Supreme Court to identify and protect, certain fundamental liberties that it does not