Preface

Acknowledgments

Chapter 1

Introduction to Individual Rights

§1.1

Introduction and Overview

§1.2

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

§1.3

The Incorporation Doctrine

§1.4

The State Action Doctrine

§1.4.1

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

§1.4.2

The Two-Part Approach

A State Actor Anomaly

§1.5

Congressional Enforcement of the Civil War Amendments

§1.5.1

Enforcement of the Thirteenth Amendment

§1.5.2

Enforcement of the Fourteenth Amendment

Parallel Enforcement

Nonparallel Enforcement

Congressional Interpretation

§1.5.3

Enforcement of the Fifteenth Amendment

Chapter 2

Substantive Due Process

§2.1

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

§2.2

The Rise and Fall of Economic Due Process

§2.2.1

Economic Due Process in the Lochner Era

Liberty to Contract

The Decision in Lochner v. New York

§2.2.2

The Demise of Lochner

§2.2.3

Property and Economic Liberty Today

Punitive Damages

§2.3

Noneconomic Liberty from Lochner to Carolene Products

§2.3.1

The Lochner Era and Noneconomic Liberties

§2.3.2

Carolene Products’ Footnote Four

§2.4

Griswold and the Reemergence of Unenumerated Liberties

§2.4.1

Penumbras and Emanations

§2.4.2

Alternative Approaches: Liberty and the Ninth Amendment

§2.4.3

The Risks in Protecting Unenumerated Rights

§2.4.4

The Fundamental Rights Model with Variations

The Basic Fundamental Rights Model

The Concept of Impingement

Variations on the Basic Strict Scrutiny Model

§2.5

The Right of Privacy and Personal Autonomy

§2.5.1

Marriage

§2.5.2

Family Integrity

Family Living Arrangements

The Parent-Child Relationship

Nonparental Visitation Statutes

§2.5.3

Intimate Association

§2.5.4

Abortion

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

§2.5.5

Sexual Intimacy

§2.5.6

Medical Treatment

A Right to Choose Certain Medical Treatment?

The Right to Reject Unwanted Medical Treatment

§2.5.7

The Right to Refuse Lifesaving Hydration and Nutrition

§2.5.8

Suicide and Physician-Assisted Suicide

§2.6

Other Protected Liberty Interests

§2.6.1

Freedom of Movement

Freedom from Physical Restraint

Freedom to Move About

§2.6.2

The Rights to Protection and Care

§2.6.3

Access to Courts

§2.6.4

Informational Privacy

§2.7

What Happened to Life?

Abortion

Subsistence Benefits

The Death Penalty

Death Caused by Government Officials

Chapter 3

The Takings Clause

§3.1

Introduction and Overview

§3.2

Condemnation and Inverse Condemnation

§3.3

The Requirement of Public Use

§3.4

An Approach to Analyzing Inverse Condemnation Problems

§3.5

The Difference between Physical Occupation and Regulation

§3.6

Physical Occupations and Invasions

§3.7

Regulatory Takings

§3.7.1

Destroying All Use or Value

Real Property

Personal Property

Measuring Loss in Value: The Denominator Problem

§3.7.2

Partial Deprivations

§3.7.3

The Nuisance Exception

§3.7.4

Remedies for Temporary Regulatory Takings

§3.8

Conditions Attached to Building Permits

§3.8.1

Only Certain Types of Conditions Qualify

§3.8.2

The Essential Nexus Requirement

§3.8.3

The Rough Proportionality Requirement

The Nature of the Condition

The Extent of the Condition

Chapter 4

The Contracts Clause

§4.1

Introduction and Overview

§4.2

The Preliminary Questions

§4.2.1

Is There a Contractual Obligation?

Implied Contractual Obligations

State Law as an Implied Contractual Obligation

§4.2.2

Does a Change in State Law Impair a Contractual Obligation?

§4.2.3

Is the Impairment Substantial?

§4.3

The Balancing Test and the Reserved Powers Doctrine

§4.4

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

Chapter 5

Procedural Due Process and Irrebuttable Presumptions

§5.1

Introduction and Overview

§5.2

A Protected Liberty or Property Interest?

§5.2.1

What Constitutes Liberty?

§5.2.2

What Constitutes Property?

§5.2.3

The Relevance of Custom and Practice

§5.3

What Constitutes a Deprivation?

§5.4

The Content of Notice

§5.5

What Kind of Hearing Must Be Afforded?

§5.5.1

The “Bitter with the Sweet” Approach

§5.5.2

The Mathews v. Eldridge Test

§5.5.3

The Requirement of a Prior Hearing

§5.5.4

Exceptions to the Prior Hearing Requirement

§5.5.5

The Formality of the Prior Hearing

§5.6

Possible Postdeprivation Remedies Where No Liberty or Property Interest Exists

§5.7

The Irrebuttable Presumption Doctrine

§5.7.1

Rebuttable and Irrebuttable Presumptions

§5.7.2

The Doctrine in Its Prime

§5.7.3

The Doctrine Today

Chapter 6

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

§6.1

Introduction and Overview

§6.2

Equal Protection: General Principles

§6.2.1

Detecting Discrimination: Facial, Design, and Applied

Facial Discrimination

Discrimination by Design

Discriminatory Application

§6.2.2

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

§6.2.3

Rebutting the Prima Facie Case

§6.3

The Rational Basis Equal Protection Test

§6.4

Classifications on the Basis of Race or National Origin

§6.4.1

Race as a Suspect Classification

The Court’s Early Treatment of Race

The Rationale for Strict Scrutiny

§6.4.2

Strict Scrutiny as a Measure of Constitutionality

Compelling Interest

Narrowly Tailored

§6.4.3

Racial Segregation of Public Schools

Brown v. Board of Education

Implementing Brown

§6.4.4

Interdistrict Remedies

Proving an Interdistrict Violation

Responding to White Flight

§6.4.5

Remedying Segregation at the College Level

§6.4.6

Other Limitations on Desegregation Orders

Minimizing the Degree of Federal Interference

Duration of Federal Desegregation Orders

§6.4.7

Affirmative Action

Strict Scrutiny for Affirmative Action

Compelling Interests

Narrowly Tailored

§6.5

Classification on the Basis of Alienage

§6.5.1

The Standard for State and Local Laws

The Reason for Strict Scrutiny

Governmental or Political Functions

Undocumented Aliens

§6.5.2

The Standard for Federal Laws

§6.6

Classification on the Basis of Gender or Legitimacy

§6.6.1

Gender as a Quasi-Suspect Classification

§6.6.2

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

§6.6.3

Legitimacy

§6.7

Other Possibly Disfavored Bases of Classification

§6.7.1

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

§6.7.2

Discrimination Against Out-of-Staters

§6.7.3

Discrimination Against the Mentally Retarded

§6.7.4

Discrimination on the Basis of Sexual Orientation

Chapter 7

Equal Protection: Fundamental Rights

§7.1

Introduction and Overview

§7.2

Equal Protection and Fundamental Rights

§7.3

The Right to Vote

§7.3.1

The Absolute versus the Equal Right to Vote

§7.3.2

Selective Denial of the Franchise

§7.3.3

Individual Vote Dilution: “One Person, One Vote”

The Problem: Unequal Weighting of Votes

“One Person, One Vote”

At-Large Election Schemes

Reapportionment

§7.3.4

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

§7.3.5

Nondilutional Race-Based Districting

§7.3.6

Access to the Ballot

§7.3.7

Unequal Vote Count

§7.4

The Right to Travel

§7.4.1

Durational Residency Requirements

§7.4.2

Fixed-Point and Fixed-Date Residency Requirements

§7.4.3

The Equal Protection Alternative to Strict Scrutiny

§7.4.4

Bona Fide Residency Requirements

§7.5

Access to the Courts

§7.6

Welfare and Subsistence

§7.7

Access to a Basic Education

§7.8

A Sliding-Scale Approach to Equal Protection

§7.8.1

Problems with the Three-Tier Model

§7.8.2

Marshall’s Sliding-Scale Approach

§7.8.3

Plyler v. Doe

Chapter 8

The First Amendment: Freedom of Speech and of the Press

§8.1

Introduction and Overview

§8.2

Introductory Themes

§8.2.1

Defining Terms: Speech and Press

§8.2.2

Protected and Unprotected Speech

§8.2.3

The Distinction Between Matters of Public and Private Concern

§8.2.4

The Special Problem of Prior Restraints

§8.2.5

The Overbreadth and Vagueness Doctrines

§8.3

Content-Based Restrictions on Speech

§8.3.1

What Constitutes a Content-Based Restriction?

§8.3.2

Advocacy of Unlawful Conduct: The Clear and Present Danger Test

§8.3.3

Fighting Words, True Threat, and Hate Speech

§8.3.4

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

§8.3.5

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

Campaign Financing and Campaign Advocacy

Restrictions on the Initiative Process

§8.3.6

Commercial Speech

The Definition of Commercial Speech

The Rationale for Protecting Commercial Speech

The Central Hudson Test

§8.3.7

Sexually Explicit Speech—Obscenity and Pornography

A Definition of Obscenity

Nonobscene Sexually Explicit Speech—Pornography

Indecent or Vulgar Speech

Indecent Speech and the Internet

§8.3.8

Speech that Depicts Actual Violence or Cruelty

§8.3.9

Content Discrimination within Categories of Unprotected Speech

§8.3.10

Compelled Speech

§8.3.11

Ad Hoc Balancing

§8.3.12

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

§8.4

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

§8.4.1

Content Neutrality

§8.4.2

Narrowly Tailored to Advance a Significant Governmental Interest

§8.4.3

Alternate Channels for Communication

§8.4.4

Prior Restraints

§8.4.5

Injunctions

§8.4.6

The Special Problem of Copyrights

§8.5

The Nature of the Public Forum

§8.5.1

Traditional Public Forum

§8.5.2

Designated Public Forum

§8.5.3

Nonpublic Forum

§8.5.4

Student Speech in Public Schools

§8.6

Government Speech

§8.7

The First Amendment Right of Association

§8.8

Special Problems of the Media

§8.8.1

Access to Information

§8.8.2

Access to Criminal Proceedings

§8.8.3

Gag Orders in Criminal Proceedings

§8.8.4

The Publication of Truthful, Lawfully Obtained Information

§8.8.5

The Protection of Confidential Sources

§8.8.6

Forced Access to the Press: Print Media

§8.8.7

The First Amendment and Modern Technologies

The Broadcast Media

Developing Technologies

Chapter 9

The First Amendment: Freedom of Religion

§9.1

Introduction and Overview

§9.2

The Establishment Clause: Themes, Theories, and Tests

§9.2.1

Separationist Theory

§9.2.2

Nonpreferentialist Theory

§9.2.3

Compromise Approaches

§9.2.4

The Lemon Test

§9.3

The Establishment Clause Applied: Discrimination between Religions

§9.3.1

The Ban on Officially “Established” Religions

§9.3.2

The Limitation on Conferring a Preferred Status

§9.3.3

The Limitation on Imposing a Disfavored Status

§9.4

The Establishment Clause Applied: The Nondiscriminatory Promotion of Religion

§9.4.1

Public Aid to Parochial Schools

§9.4.2

Prayer in Public Schools

§9.4.3

Other Contexts

§9.5

The Free Exercise Clause

§9.5.1

The Distinction between Belief and Conduct

§9.5.2

The Protection of Religious Belief

The Right to Profess Religious Beliefs

Ecclesiastical Disputes

§9.5.3

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

§9.6

The Accommodation of Religion

Chapter 10

The Right to Keep and Bear Arms

§10.1

Introduction and Overview

§10.2

District of Columbia v. Heller

§10.2.1

Interpreting the Second Amendment

§10.2.2

Applying the Second Amendment

§10.3

Applying Heller

Table of Cases

Index