The Dynamic Constitution: An Introduction to American Constitutional Law and Practice

The Dynamic Constitution: An Introduction to American Constitutional Law and Practice

Language: English

Pages: 432

ISBN: 1107642574

Format: PDF / Kindle (mobi) / ePub


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.

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time. With one or two different Justices, the Court might have upheld New Deal legislation from the beginning – or it might have continued to invalidate such programs as Social Security through 1937 and possibly beyond. Second, as also illustrated by the events surrounding Marbury v. Madison and Stuart v. Laird, the Supreme Court operates within what political scientists call “politically constructed bounds.”36 Although the Justices exercise enormous power, their decisions can enjoy long-term

about political matters, based on a concern that the speakers might persuade their audiences. The 5–4 decision in McConnell came at a time when observers regularly described the Supreme Court as comprising five conservative and four liberal Justices. As in the Lorillard case, which involved tobacco advertising, the liberal Justices voted to uphold regulations of speech that they thought necessary to serve important governmental interests, and the conservatives generally adhered to the principle

nature or as otherwise morally self-evident.14 These Justices naturally read provisions such as the Contract Clause in light of their moral and constitutional theories. For them, the more difficult question was whether the Court should invalidate legislation that violated moral rights even if it did not transgress any specific constitutional limitation (such as the Contract Clause) at all. Justice Samuel Chase offered a celebrated statement that the courts should decline to enforce morally

on an unwilling nation. In this view, the Justices’ antiregulatory stance had become untenable in a modern industrial economy, especially when rampant unemployment made it impossible for employees – who could easily be fired and replaced – to bargain effectively with their employers for decent working conditions or a living wage. When anger and frustration with the Court reached an apex in the mid-1930s, with President Roosevelt credibly proposing to “pack” the Supreme Court to save the New Deal

huge proportion of cases, by steering their clients into a “plea bargain,” under which the defendant pleads guilty to a crime but typically receives a shorter sentence than the prosecutor had initially sought. In the absence of a more serious commitment by state governments to fund criminal defenses, poor defendants may thus get little more than an agent to help with plea negotiations, not a committed defender.21 (Within our criminal justice system as it operates today, well more than 90 percent

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