P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 ii This page intentionally left blank P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 The Dynamic Constitution In this book Harvard law professor Richard H. Fallon, Jr., introduces nonlawyers to the workings of American Constitutional Law. He writes with clarity and vigor about leading constitutional doctrines and issues, including the freedom of speech, the freedom of religion, the guarantee of equal protection, rights to fair procedures, and rights to privacy and sexual autonomy. Along the way, Fallon describes many of the fascinat- ing cases and personalities that have shaped constitutional law. He shows how historical, cultural, and other factors have influenced constitutional adjudication, making clear the dynamic nature of the Constitution. For both the courts and the American people, Fallon argues, the Consti- tution must serve as a dynamic document that adapts to the changing conditions inherent in human affairs. Fallon goes on to defend dynamic constitutionalism by confronting head on the concerns that some critics have raised. Richard H. Fallon, Jr., is the Ralph S. Tyler Professor of Constitutional Law at the Harvard Law School. He earned his B.A. from Yale Univer- sity, matriculated as a Rhodes Scholar at Oxford University, and then took his legal education at the Yale Law School. Widely known for his expertise in constitutional law and the federal courts, Fallon has been a valuable advisor to many organizations and litigants facing constitu- tional issues. Professor Fallon is also an accomplished educator. He is coeditor of a leading constitutional law case book, and he was voted the most outstanding teacher on the Harvard Law School faculty by the 2000 graduating class. Born and raised in Maine, Dick Fallon now lives with his family in Belmont, Massachusetts. i P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 ii P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 THE DYNAMIC CONSTITUTION An Introduction to American Constitutional Law Richard H. Fallon, Jr. Harvard University iii    Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge  , UK First published in print format - ---- - ---- - ---- © Richard H. Fallon, Jr. 2004 2004 Information on this title: www.cambrid g e.or g /9780521840941 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. - --- - --- - --- Cambridge University Press has no responsibility for the persistence or accuracy of s for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Published in the United States of America by Cambridge University Press, New York www.cambridge.org hardback p a p erback p a p erback eBook (EBL) eBook (EBL) hardback P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 For Jenny v P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 vi P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 Contents Preface page xi Prologue: Bush v. Gore xv Introduction: The Dynamic Constitution 1 History 2 Original Constitutional Design 4 The Constitution as Higher Law: Foundations of Judicial Review 9 Marbury v. Madison: An Enduring Symbol of Judicial Power 10 Politics and Judicial Review 14 A Preliminary Perspective on How the Supreme Court Interprets the Constitution 16 A Brief History of Judicial Review 19 An Outline of What Is to Come 26 Part I: Individual Rights Under the Constitution 1 Freedom of Speech 31 The Foundations of Modern Doctrine 32 Proximate Origins of Modern Doctrine 34 Expressive Conduct 42 Shocking and Offensive Speech 44 Remaining Unprotected Categories, Including Obscenity 45 Commercial Speech 48 The Broadcast Media 51 Freedom to Associate and Not to Associate 53 Concluding Note 55 vii P1: KNP-JPJ/JLP P2: KOD CB732-FM CB732-Fallon-v1 June 14, 2004 12:27 contents 2 Freedom of Religion 57 Introduction to the Establishment Clause 59 Religion in the Public Schools 61 Governmental Aid to Religious Institutions 63 The Free Exercise Clause 67 Voluntary Governmental Accommodations of Religion 71 Tensions Between the Free Exercise and Establishment Clauses 72 3 Protection of Economic Liberties 75 Early History 76 The Fourteenth Amendment 78 Substantive Due Process 81 Modern Contracts Clause Doctrine 86 The Takings Clause 87 Concluding Thoughts 89 4 Rights to Fair Procedures 91 Procedural Rights in Criminal Cases 92 Time, Elections, and Change 97 The Law on the Books versus the Law in Practice 98 Procedural Rights in Civil Cases 100 Due Process in Administrative Proceedings 101 5 Equal Protection of the Laws 106 Equal Protection and the Constitution 109 Rational Basis Review 111 Race and the Constitution: Invidious Discrimination 114 Race and the Constitution: Disparate Impact 122 Affirmative Action 123 Gender and the Constitution 129 Discrimination Against Homosexuals 133 Conclusion 136 6 Fundamental Rights 138 The Idea of Fundamental Rights 140 Sexual Privacy or Autonomy 142 Roe v. Wade and Abortion Rights 144 Gay Rights 147 viii [...]... aspires both to inform and to challenge nonlawyers who are interested in constitutional law, as well as law students seeking an introduction to the subject and lawyers who would like a refresher I still remember the intellectual thrill of my own first encounter with a book about constitutional law It came in 1971, when I was a college undergraduate The book was Robert McCloskey’s The American Supreme... have asked me to recommend a book introducing constitutional law to nonlawyers, I have usually named McCloskey’s Increasingly, however, I have done so hesitantly The organization of McCloskey’s book is mainly historical It discusses successive eras in the history of the Supreme Court, often brilliantly, but without attempting to provide the clear portrait of contemporary constitutional law, and of the... arguments and explain them dispassionately Even then, I am probably too engaged by some issues to adopt a truly neutral perspective At other points I join the arguments unabashedly and offer my own opinions, partly because I cannot help myself, because I cannot be indifferent, and partly because constitutional law is ultimately inseparable from constitutional argument To a large extent, to understand constitutional. .. constitutional law is to know how to participate in constitutional debates There would be no better indication that this book has succeeded in introducing constitutional law successfully than if the reader, at certain points, feels both provoked and empowered to argue with my judgments In one sense, this book has been many years in the making It reflects my reading and writing about constitutional law, and perhaps... legislature was prepared to “appoint” its own electors to the electoral college, all pledged to Bush, and to claim that it was merely exercising its constitutional prerogative to “appoint” electors in “such Manner” as it chose Had events unfolded in that way, it is not clear what would have happened next There would have been two slates of Florida electors claiming a right to vote in the electoral college –... to the text These include the historic practices of Congress and the President, previous judicial decisions or “precedents,” public expectations, practical considerations, and moral and political values By talking about constitutional law as a “practice,” I mean to signal that factors such as these are elements of the process from which constitutional law emerges.2 To be sure, arguments about how to. .. political, economic, and cultural life In any event, it is often impossible to understand today’s law without some awareness of the historical context from which it emerged Third, the book refers repeatedly to debates about the Supreme Court’s proper role in American government During the 1930s, when a conservative Supreme Court threatened to thwart President Franklin Roosevelt’s New Deal efforts to revive the... Gore It is emphatically the province and duty of the judicial department to say what the law is Those who apply the rule to particular cases, must of necessity expound and interpret that rule – Marbury v Madison (1803)1 [W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote... was, still had to look to the states to enforce its directives If it wished to lay a tax, for example, it had to request the states to assess and collect it The Articles carefully enumerated the purposes for which the states were united; any power not specifically given to the national Congress was denied to it The Articles of Confederation did not create an independent executive branch, and there was... currency and safeguards against inflation and nonpayment of debts To deal with these and related problems, the Continental Congress asked the colonies (or states) to send delegates to a convention in the summer of 1787 to draft proposed amendments to the Articles of Confederation When the Convention met in Philadelphia, however, the delegates decided almost immediately to ignore their mandate and to draft an . considerations. It as- pires both to inform and to challenge nonlawyers who are interested in constitutional law, as well as law students seeking an introduction to the subject and lawyers who would like. because I cannot help myself, be- cause I cannot be indifferent, and partly because constitutional law is ultimately inseparable from constitutional argument. To a large extent, to understand constitutional. rights to fair procedures, and rights to privacy and sexual autonomy. Along the way, Fallon describes many of the fascinat- ing cases and personalities that have shaped constitutional law. He