Justice Rehnquist, the Supreme Court, and the Bill of Rights

Оглавление

Steven T. Seitz. Justice Rehnquist, the Supreme Court, and the Bill of Rights

Preface

Introduction

The Book’s Focus

Non-Economic Due Process

Justice Rehnquist v Sustainable Case Law

Original Interpretation

Living Constitution

Thematic Chronology

Commentaries on Commentaries

The Two Constitutions

Separation of Powers

Size of Constituency

Enumerating Rights

Individual Sovereignty

Multiple Sovereignties

Judicial Politics

Slow Change

Interpreting Clauses

Originalists and Living Constitution

Natural Law and Natural Rights

Conclusion

Note

Dred Scott

The Dreaded Decision

Race and the Constitution

To Sue

Law and Politics

Land and Boundaries

Master/Slave

Citizenship(s)

Concurrences

Dissent

State Abolition

Unrepentant

Conclusion

Privileges and Immunities

Slaughterhouse

The Butchers

Intervention

Different Visions of Privileges and Immunities

Slaughterhouse Dissents

Paul

Ignoring the Civil Rights Amendments

Slaughterhouse Redux

Privileges, Immunities a Century Later

Rehnquist’s decision in Building Trades

Similar Cases, Opposite Results

Wither Rehnquist?

Rehnquist Court—Hicklin

From Occupation to Recreation

Conclusion

Note

Due Process

Debtors

The Munn Case

Munn Dissent

Due Process and the Taxing Power

Railroads

Munn Redux

Takings and the Public

Taxation and Takings

Insurance

Technology and Environment

Pullman

Taxes and Due Process

Regulation and Due Process powers. Police Powers

State Sovereignty

Property and Race

Public Health

Banks

ICC

Home-Owners Association

Public Interests

Corporations

State and Local

Interstate Commerce

Administration

Financial

Professionals

Family

Property Interests

Rehnquist Enters

Disability

New Wine, Old Skins

Children

Environment

Boy Scouts

Technological Change

Conclusion

Criminal Process

Mental Illness

Habeas Corpus

Grand Juries

Due Process

Legislative and Judicial Due Processes

Morals

Food

Immigration

Liquor

Incorporating Rights

More Immigration Woes

Counsel

Double Jeopardy

Defendants and Due Process

Conclusion

Equal Protection for Women

Marriage

Dower

Women and Contracts

Serving Government

Women and the Military

ERA

Using Equal Protection

The Physical

Conclusion

Note

Asserting Federal Power

Land

Land Claims

Lottery

Navigation

Officers

Court Personnel

Loans

Conclusion

Contracts

Takings

Railroads

The Sinking Fund Cases

Dissenting Voices

Public Funds, Private Ownership

Due Process and Equal Protection

Contracts

Infused with a Public Interest

Lochner

Conclusion

Free Speech and Corporations

Natural and Artificial Persons

Incorporation

Standing

Sovereignty

New York Times v. Sullivan

Corporations or Press

Reporters

Press and Politicians

Press and Public

Political Campaigns

Corporate Speech

Central Hudson

Austin

McConnell aka BCRA

Citizens United

Conclusion

Sex. Conscience and Consciousness

Race

Contraception

The Unborn

Adultery and Homosexuality

Type of Sex

Social Darwinism

Protecting Children

Obscenity

The State and Marriage

Homosexuality

Privacy and Intimacy

The State and Sexual Behavior

The Nature of Explanation

Guns. Amendment 2 : The Right to Bear Arms

Three Interpretative Phases

Cruikshank

Keeping and Bearing Arms

Presser

Individual Right to Bear Arms

Heller

McDonald

Conclusion

Note

Conclusion

Cases Cited

Index

About the Author

Отрывок из книги

I want to thank members of the Computational Modeling Laboratory, University of Illinois, especially Charles Hulin with whom I have collaborated on many projects over the years. Regardless of content, my CML colleagues have persevered through many long manuscripts and offered thoughtful and helpful comments. We continue to develop our model of the smart page, which includes a multidimensional lazy Susan floating column of every source of information a user might wish to access for any word or phrase while reading a text page. The floating design allows the user to look behind words and phrases in the reference panes presented on the lazy Susan. Modeling the chronological development of topics across court decisions is much more complicated than might appear, because justices sometimes shift the case precedents from one legal line of reasoning to another, even though the basic facts of the case bear striking resemblance to other cases buried under a different line of legal reasoning. These lateral shifts are more frequent than changing or overturning precedents. Accounting for these lateral shifts requires a complex rule base larger and more complicated than the rule base for vertical shifts overturning or marginalizing precedents. The research presented in this book has been instrumental in advancing the computational work.

Charles Warren’s great book The Supreme Court in United States History developed an excellent historical picture by term and has been helpful in illuminating the nature of the times. The chronologies by topic developed in this and a previous book, The Supreme Court, the Constitution, and Justice Rehnquist, are essential for developing the genetic picture of a dynamic court. In his preface, Warren suggested he should have developed the book by themes, but development by terms was much more manageable when he started his book in the early 1920s. The new books help address this void and allow progress on the large rule bases for the computational model. The concurrences and dissents have been instrumental in elaborating the rule bases.

.....

Those who wrote the Constitution and Bill of Rights used terms general enough to allow the court to expound a Constitution, expound the protected sphere of individual citizens, and in some cases, expound protections for noncitizens as well. Marshall’s Living Constitution stands at odds with the counternarrative that our contemporaries can reconstruct the intent of people dead for more than two centuries or the public understanding long since passed and the related situ with which these ghosts of the past interacted. Divining intentions of people or publics long since passed, or selectively writing their history by choosing the important publics of the time provides the cover and flexibility to import politics into judicial decision-making. Importing the mind and knowledge of the eighteenth century, to the extent possible, is an odd devotion. Either narrative still expounds a Constitution; both value consistency. The very art of interpretation, emphasis on interpretation, is an ideological exercise.

1.

.....