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Chapter 1

Introduction to Individual Rights


Introduction and Overview


The Fourteenth Amendment: An Introductory Overview

The Text of Section 1 of the Fourteenth Amendment

A Brief Historical Survey

Early Judicial Trends in Construing the Fourteenth Amendment


The Incorporation Doctrine


The State Action Doctrine


The Categorical Approach

Private Performance of a Public Function

The Judicial Enforcement of Private Agreements

Joint Activity between a State and a Private Party

State Endorsement of Private Conduct


The Two-Part Approach

A State Actor Anomaly


Congressional Enforcement of the Civil War Amendments


Enforcement of the Thirteenth Amendment


Enforcement of the Fourteenth Amendment

Parallel Enforcement

Nonparallel Enforcement

Congressional Interpretation


Enforcement of the Fifteenth Amendment

Chapter 2

Substantive Due Process


Introduction and Overview

The Origins of the Due Process Clause

Procedural versus Substantive Due Process

Executive Abuse of Power

Standards of Review

Economic versus Noneconomic Due Process


The Rise and Fall of Economic Due Process


Economic Due Process in the Lochner Era

Liberty to Contract

The Decision in Lochner v. New York


The Demise of Lochner


Property and Economic Liberty Today

Punitive Damages


Noneconomic Liberty from Lochner to Carolene Products


The Lochner Era and Noneconomic Liberties


Carolene Products’ Footnote Four


Griswold and the Reemergence of Unenumerated Liberties


Penumbras and Emanations


Alternative Approaches: Liberty and the Ninth Amendment


The Risks in Protecting Unenumerated Rights


The Fundamental Rights Model with Variations

The Basic Fundamental Rights Model

The Concept of Impingement

Variations on the Basic Strict Scrutiny Model


The Right of Privacy and Personal Autonomy




Family Integrity

Family Living Arrangements

The Parent-Child Relationship

Nonparental Visitation Statutes


Intimate Association



Roe v. Wade and the Trimester Framework

Planned Parenthood v. Casey and the End of the Trimester Approach

The Undue Burden Test

Facial versus As-Applied Challenges


Sexual Intimacy


Medical Treatment

A Right to Choose Certain Medical Treatment?

The Right to Reject Unwanted Medical Treatment


The Right to Refuse Lifesaving Hydration and Nutrition


Suicide and Physician-Assisted Suicide


Other Protected Liberty Interests


Freedom of Movement

Freedom from Physical Restraint

Freedom to Move About


The Rights to Protection and Care


Access to Courts


Informational Privacy


What Happened to Life?


Subsistence Benefits

The Death Penalty

Death Caused by Government Officials

Chapter 3

The Takings Clause


Introduction and Overview


Condemnation and Inverse Condemnation


The Requirement of Public Use


An Approach to Analyzing Inverse Condemnation Problems


The Difference between Physical Occupation and Regulation


Physical Occupations and Invasions


Regulatory Takings


Destroying All Use or Value

Real Property

Personal Property

Measuring Loss in Value: The Denominator Problem


Partial Deprivations


The Nuisance Exception


Remedies for Temporary Regulatory Takings


Conditions Attached to Building Permits


Only Certain Types of Conditions Qualify


The Essential Nexus Requirement


The Rough Proportionality Requirement

The Nature of the Condition

The Extent of the Condition

Chapter 4

The Contracts Clause


Introduction and Overview


The Preliminary Questions


Is There a Contractual Obligation?

Implied Contractual Obligations

State Law as an Implied Contractual Obligation


Does a Change in State Law Impair a Contractual Obligation?


Is the Impairment Substantial?


The Balancing Test and the Reserved Powers Doctrine


The Special Problems of Contracts to Which a State Is a Party

Chapter 5

Procedural Due Process and Irrebuttable Presumptions


Introduction and Overview


A Protected Liberty or Property Interest?


What Constitutes Liberty?


What Constitutes Property?


The Relevance of Custom and Practice


What Constitutes a Deprivation?


The Content of Notice


What Kind of Hearing Must Be Afforded?


The “Bitter with the Sweet” Approach


The Mathews v. Eldridge Test


The Requirement of a Prior Hearing


Exceptions to the Prior Hearing Requirement


The Formality of the Prior Hearing


Possible Postdeprivation Remedies Where No Liberty or Property Interest Exists


The Irrebuttable Presumption Doctrine


Rebuttable and Irrebuttable Presumptions


The Doctrine in Its Prime


The Doctrine Today

Chapter 6

Equal Protection: Ordinary, Suspect,” and Quasi-Suspect” Classifications


Introduction and Overview


Equal Protection: General Principles


Detecting Discrimination: Facial, Design, and Applied

Facial Discrimination

Discrimination by Design

Discriminatory Application


The Prima Facie Case

Disproportionate Impact

Discriminatory Purpose

Legislative History

The Manner of Adoption

Inferring Purpose from Impact and Other Circumstantial Evidence

Inferring Intent from Application

The Keyes Presumption

Difficulties with the Purpose Element


Rebutting the Prima Facie Case


The Rational Basis Equal Protection Test


Classifications on the Basis of Race or National Origin


Race as a Suspect Classification

The Court’s Early Treatment of Race

The Rationale for Strict Scrutiny


Strict Scrutiny as a Measure of Constitutionality

Compelling Interest

Narrowly Tailored


Racial Segregation of Public Schools

Brown v. Board of Education

Implementing Brown


Interdistrict Remedies

Proving an Interdistrict Violation

Responding to White Flight


Remedying Segregation at the College Level


Other Limitations on Desegregation Orders

Minimizing the Degree of Federal Interference

Duration of Federal Desegregation Orders


Affirmative Action

Strict Scrutiny for Affirmative Action

Compelling Interests

Narrowly Tailored


Classification on the Basis of Alienage


The Standard for State and Local Laws

The Reason for Strict Scrutiny

Governmental or Political Functions

Undocumented Aliens


The Standard for Federal Laws


Classification on the Basis of Gender or Legitimacy


Gender as a Quasi-Suspect Classification


Mid-Level Scrutiny as a Measure of Constitutionality

Important and Legitimate Objectives

Proof of Actual Purpose

Means Substantially Related to Goal

Comparing the Tests for Gender and Race Discrimination




Other Possibly Disfavored Bases of Classification


The Rejection of New “Suspect” and “Quasi-Suspect” Classes


Discrimination Against Out-of-Staters


Discrimination Against the Mentally Retarded


Discrimination on the Basis of Sexual Orientation

Chapter 7

Equal Protection: Fundamental Rights


Introduction and Overview


Equal Protection and Fundamental Rights


The Right to Vote


The Absolute versus the Equal Right to Vote


Selective Denial of the Franchise


Individual Vote Dilution: “One Person, One Vote”

The Problem: Unequal Weighting of Votes

“One Person, One Vote”

At-Large Election Schemes



Group Vote Dilution

Minimizing Group Voting Strength

Dilution through At-Large Elections

Dilution through Gerrymandering

Dilution through Use of Multimember Districts

Vote Dilution and Nonracial Groups: Partisan Political Gerrymandering


Nondilutional Race-Based Districting


Access to the Ballot


Unequal Vote Count


The Right to Travel


Durational Residency Requirements


Fixed-Point and Fixed-Date Residency Requirements


The Equal Protection Alternative to Strict Scrutiny


Bona Fide Residency Requirements


Access to the Courts


Welfare and Subsistence


Access to a Basic Education


A Sliding-Scale Approach to Equal Protection


Problems with the Three-Tier Model


Marshall’s Sliding-Scale Approach


Plyler v. Doe

Chapter 8

The First Amendment: Freedom of Speech and of the Press


Introduction and Overview


Introductory Themes


Defining Terms: Speech and Press


Protected and Unprotected Speech


The Distinction Between Matters of Public and Private Concern


The Special Problem of Prior Restraints


The Overbreadth and Vagueness Doctrines


Content-Based Restrictions on Speech


What Constitutes a Content-Based Restriction?


Advocacy of Unlawful Conduct: The Clear and Present Danger Test


Fighting Words, True Threat, and Hate Speech


Free Speech Limitations on Defamation (and Other Torts)

The Burdens Imposed by the Actual Malice Standard

The Contexts in Which the Actual Malice Standard Applies

The Standards for Private-Plaintiff Lawsuits

The First Amendment and Speech- Premised Torts Generally


Campaign Financing, Campaign Advocacy, and Restrictions on the Initiative Process

Campaign Financing and Campaign Advocacy

Restrictions on the Initiative Process


Commercial Speech

The Definition of Commercial Speech

The Rationale for Protecting Commercial Speech

The Central Hudson Test


Sexually Explicit Speech—Obscenity and Pornography

A Definition of Obscenity

Nonobscene Sexually Explicit Speech—Pornography

Indecent or Vulgar Speech

Indecent Speech and the Internet


Speech that Depicts Actual Violence or Cruelty


Content Discrimination within Categories of Unprotected Speech


Compelled Speech


Ad Hoc Balancing


Free Speech Rights of Public Employees and Other Voluntary Participants in Government Programs


Content-Neutral Restrictions on Speech: The Time, Place, and Manner Test


Content Neutrality


Narrowly Tailored to Advance a Significant Governmental Interest


Alternate Channels for Communication


Prior Restraints




The Special Problem of Copyrights


The Nature of the Public Forum


Traditional Public Forum


Designated Public Forum


Nonpublic Forum


Student Speech in Public Schools


Government Speech


The First Amendment Right of Association


Special Problems of the Media


Access to Information


Access to Criminal Proceedings


Gag Orders in Criminal Proceedings


The Publication of Truthful, Lawfully Obtained Information


The Protection of Confidential Sources


Forced Access to the Press: Print Media


The First Amendment and Modern Technologies

The Broadcast Media

Developing Technologies

Chapter 9

The First Amendment: Freedom of Religion


Introduction and Overview


The Establishment Clause: Themes, Theories, and Tests


Separationist Theory


Nonpreferentialist Theory


Compromise Approaches


The Lemon Test


The Establishment Clause Applied: Discrimination between Religions


The Ban on Officially “Established” Religions


The Limitation on Conferring a Preferred Status


The Limitation on Imposing a Disfavored Status


The Establishment Clause Applied: The Nondiscriminatory Promotion of Religion


Public Aid to Parochial Schools


Prayer in Public Schools


Other Contexts


The Free Exercise Clause


The Distinction between Belief and Conduct


The Protection of Religious Belief

The Right to Profess Religious Beliefs

Ecclesiastical Disputes


The Protection of Religiously Motivated Conduct

The Purposeful Suppression of Religiously Motivated Conduct

The Nonpurposeful Regulation of Religously Motivated Conduct

The Incidental Burdening of Religiously Motivated Conduct


The Accommodation of Religion

Chapter 10

The Right to Keep and Bear Arms


Introduction and Overview


District of Columbia v. Heller


Interpreting the Second Amendment


Applying the Second Amendment


Applying Heller

Table of Cases


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