Constitutional Law for a Changing America: Rights, Liberties, and Justice

by Lee J. Epstein, Kevin T. McGuire, Thomas G. Walker

Overview

Political factors influence judicial decisions. Arguments and input from lawyers and interest groups, shifting public opinion, and the ideological and behavioral inclinations of the justices collectively influence the development of constitutional doctrine. In Constitutional Law for a Changing America, bestselling authors Lee Epstein, Kevin T. McGuire, and Thomas G. Walker draw on both political science and legal studies to analyze and excerpt cases, accounting for recent landmark court decisions, including key opinions handed down through the 2020 term.  

Updated with additional material such as recent court rulings, more than 500 supplemental cases, and greater coverage of freedom of expression, this Eleventh Edition will develop students’ understanding of how the U.S. Constitution protects civil rights and liberties.

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Product Details

ISBN-13:	9781544391267
Publisher:	SAGE Publications
Publication date:	08/04/2021
Series:	Constitutional Law for a Changing America
Sold by:	Barnes & Noble
Format:	eBook
Pages:	752
Sales rank:	421,433
File size:	32 MB
Note:	This product may take a few minutes to download.

About the Author

Lee Epstein (PhD, Emory University) is the University Professor of Law&Political Science and the Hilliard Distinguished Professor of Law at the University of Southern California. She is a fellow of the American Academy of Arts and Sciences and the American Academy of Political and Social Science. A recipient of 12 grants from the National Science Foundation, Epstein has authored or co-authored more than 100 articles and essays and 18 books. She is currently co-editing The Oxford Handbook of Comparative Judicial Behaviour. Professor Epstein’s empirical research is frequently cited in the New York Times, among other news media.

Kevin T. McGuire (PhD, The Ohio State University) is Professor of Political Science at the University of North Carolina at Chapel Hill. A former Fulbright Scholar at Trinity College, Dublin, he is the author of Understanding the U.S. Supreme Court: Cases and Controversies and The Supreme Court Bar: Legal Elites in the Washington Community. He is the editor of New Directions in Judicial Politics, and coeditor, with Kermit L. Hall, of Institutions of American Democracy: The Judiciary.

Thomas G. Walker (PhD, University of Kentucky) is the Goodrich C. White Professor Emeritus at Emory University, where he won several teaching awards for his courses on constitutional law and the judicial process. His book A Court Divided, written with Deborah J. Barrow, won the prestigious V. O. Key Award for the best book on Southern politics. He is the author of Eligible for Execution and coauthor of The Supreme Court Compendium: Data, Decisions, and Developments, 7th Edition, with Lee Epstein, Jeffrey A. Segal, and Harold J. Spaeth.

Table of Contents

Chronological Table of Cases
Tables, Figures, and Boxes
Preface
PART I. THE SUPREME COURT AND THE CONSTITUTION
An Introduction to Rights and Liberties
The Road to the Bill of Rights
The Amendment Process
Constitutional Change and the Supreme Court
CHAPTER 1. Understanding the U.S. Supreme Court
Processing Supreme Court Cases
Supreme Court Decision Making: Legalism
Supreme Court Decision Making: Realism
Conducting Research on the Supreme Court
ANNOTATED READINGS
CHAPTER 2. The Judiciary: Institutional Powers and Constraints
Judicial Review
Constraints On Judicial Power
ANNOTATED READINGS
CHAPTER 3. Incorporation of the Bill of Rights
Must States Abide by the Bill of Rights? Initial Responses
Incorporation through the Fourteenth Amendment: Early Interpretations
Tests Emerge
Incorporation in the Aftermath of Palko
ANNOTATED READINGS
PART II. CIVIL LIBERTIES
Approaching Civil Liberties
CHAPTER 4. Religion: Exercise and Establishment
Defining Religion
Free Exercise of Religion
Religious Establishment
ANNOTATED READINGS
CHAPTER 5. Foundations of Freedom of Expression
Free Expression in the Constitution
Justifications for Protecting Expression
Setting the Stage for Free Expression in the Supreme Court
Free Expression and the Incitement of Lawless Action
ANNOTATED READINGS
CHAPTER 6. Modern-Day Approaches to Free Expression
An Overview of Modern-Day Free Speech Doctrine
What Is Expression?
Does the Expression Fall Into an Unprotected Category?
Who Is Speaking?
Is The Regulation Content Neutral Or Content Based?
ANNOTATED READINGS
CHAPTER 7. Freedom of the Press
Prior Restraint
Government Control of Press Content
News Gathering and Special Rights
ANNOTATED READINGS
CHAPTER 8. The Boundaries of Free Expression: Libel, Obscenity, and Emerging Areas of Government Regulation
Libel
Obscenity
ANNOTATED READINGS
CHAPTER 9. The Right to Keep and Bear Arms
Initial Interpretations
The Second Amendment Revisited
Heller and the States
In the Aftermath of Heller and McDonald
ANNOTATED READINGS
CHAPTER 10. Privacy and Personal Liberty
The Right to Privacy: Foundations
Reproductive Freedom and the Right to Privacy: Abortion
The Aftermath of Roe: Attempts to Limit the Decision
Attempts to Overturn Roe
Personal Liberty and Privacy Beyond Reproductive Freedom
ANNOTATED READINGS
PART III. THE RIGHTS OF THE CRIMINALLY ACCUSED
The Criminal Justice System and Constitutional Rights
Overview of the Criminal Justice System
Trends in Court Decision Making
CHAPTER 11. Investigations and Evidence
Searches and Seizures
The Fifth Amendment and Self-Incrimination
ANNOTATED READINGS
CHAPTER 12. Attorneys, Trials, and Punishments
The Right to Counsel
The Pretrial Period and the Right to Bail
The Sixth Amendment and Fair Trials
Trial Proceedings
Final Trial Stage: An Overview of Sentencing
The Eighth Amendment
Posttrial Protections and the Double Jeopardy Clause
Postrelease Protections
ANNOTATED READINGS
PART IV. CIVIL RIGHTS
CIVIL RIGHTS AND THE CONSTITUTION
The Fourteenth Amendment
The Fifteenth Amendment
CHAPTER 13. Race Discrimination and the Foundations of Equal Protection
Initial Approaches to the Fourteenth Amendment
State Action Requirement
ANNOTATED READINGS
CHAPTER 14. Contemporary Approaches to Equal Protection
Rational Basis Scrutiny
Strict Scrutiny and Claims of Race Discrimination
Heightened Scrutiny and Claims of Gender Discrimination
Discrimination Based on Sexual Orientation
Discrimination Based on Economic Status
Discrimination against Aliens
The Future of Discrimination Law
ANNOTATED READINGS
CHAPTER 15. Voting and Representation
Voting Rights
Political Representation
Election Campaign Regulation
The Court and Presidential Elections
ANNOTATED READINGS
Reference Material
Appendix 1. Constitution of the United States
Appendix 2. The Justices
Appendix 3. Glossary
Appendix 4. Online Case Archive Index
Case Index
Subject Index
About the Authors

Editorial Reviews

This casebook for students explores the authority of government as it has developed under U.S. constitutional law, with an emphasis on political factors. The volume contains excerpts from important Court rulings as well as commentary explaining how the law is being applied. Epstein (political science, Washington U., St. Louis) and Walker (political science, Emory U.) describe the events that lead up to the suits and the lawyers, litigants, and interest groups involved. Also included are a glossary of legal terms and brief biographies of justices. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

Nearly a decade ago Lawrence Baum (1983:194) observed that constitutional law texts were beginning to reflect the efforts of scholars to apply the perspectives and major findings of judicial process research to the study of constitutional law. Lee Epstein and Thomas Walker's two-volume CONSTITUTIONAL LAW FOR A CHANGING AMERICA provides yet another option for the constitutional law instructor seeking a text that will introduce students to constitutional interpretation and the Supreme Court from the perspective of political science. In terms of organization and case selection, Epstein and Walker's entry in this market is very much a textbook designed for a traditional two-semester constitutional law/civil liberties sequence. The volume subtitled INSTITUTIONAL POWERS AND CONSTRAINTS covers the topics traditionally found in a semester course emphasizing governmental powers (judicial review, separation of powers, federalism, economic substantive due process, etc.), while the RIGHTS, LIBERTIES, AND JUSTICE volume provides excerpts from most of the cases generally covered in courses that emphasize the protection of constitutional rights by the modern Supreme Court. The books owe a great deal to traditional one-volume textbooks, many of which are cited in the brief essays that introduce the chapters and provide transitions between cases. Yet, Epstein and Walker have gone beyond these traditional texts in many ways, most notably by paying explicit attention to the lawyers responsible for bringing cases to the Court and the arguments they presented to the justices. Not surprisingly, the authors highlight the many contributions of interest group lawyers, while also discussing the key arguments of governmental and private attorneys in essays and case introductions. In addition, these volumes offer features rarely found in traditional textbooks, including biographical sketches of leading justices and numerous photographs and illustrations that should help give students a good feel for the people involved in litigating constitutional issues. Although there is no explicit organizing theme that is carried through the two volumes, many of the chapters are organized around one or more themes with case introductions generally making clear how specific cases illustrate the themes. Some of the organizational decisions are somewhat unconventional and appear at first glance to be problematic. In the INSTITUTIONAL POWERS AND CONSTRAINTS volume, for example, the authors have split commerce clause cases between separate chapters on nation-state relations (HAMMER V. DAGENHART and U.S. V. DARBY) and the commerce power (U.S. V. E.C. KNIGHT and WICKARD V. FILBURN) with little regard for chronological development. Similarly, a chapter on the right to privacy in the rights and liberties volume mixes several Fourth Amendment cases with abortion and other privacy cases based on the due process clause of the Fourteenth Amendment. Amazingly, it works. The introductory and transitional essays clearly bring out how the cases illustrate the themes of the chapters. And, of course, an instructor may simply choose to assign the commerce clause/Tenth Amendment cases in chronological order or to cover all Fourth Amendment cases under the heading of rights of the accused. Like all the books I examine each year as part of the never- ending search for the "perfect" constitutional law casebook, these volumes underrepresent a few topics I consider important and omit a few of my favorite cases (notably DUNCAN V. LOUISIANA). The chapter on incorporation of the Bill of Rights is thorough in covering the historical background of the debate, but very weak on Warren Court decisions embracing selective incorporation. Although the two death penalty cases excerpted in the book are precisely those I would select if limited to two Page 146 follows: cases, instructors who would like their students to explore the links between capital punishment decisions and the changing membership of the Court must look elsewhere for the cases. In the last analysis, though, I know of no competing text that provides a better selection of the cases that are vital to an understanding of the Court's role in interpreting a Constitution of rights and powers. Similarly, I found these volumes superior to most in striking the right balance between including too much of the original text and overediting. Almost without exception, the student who reads the case excerpts in CONSTITUTIONAL LAW FOR A CHANGING AMERICA should come away with a clear understanding of the major point of each majority opinion and at least some feel for the flavor of judicial discourse at the Supreme Court level. Naturally, one can quibble about the editing of specific cases. On the whole I found the decision to divide excerpts from complicated cases among different chapters (MCCULLOCH V. MARYLAND in legislative powers and nation-state relations chapters) or even different volumes (SLAUGHTERHOUSE CASES) somewhat artificial and potentially confusing. Looking beyond such relatively minor points, I was left with two serious criticisms of the editing of cases. Surely the five-plus pages devoted to excerpts from MARBURY V. MADISON would be better utilized by including Marshall's arguments about why the Constitution is "fundamental and paramount" law rather than unusually lengthy excerpts from the introductory sections of the opinion. Moreover, I was very disappointed to find that many significant dissenting opinions (for example, Holmes in LOCHNER, Stone in U.S. V. BUTLER, Rehnquist in ROE V. WADE) are omitted entirely. I regard omission of important dissents as a serious limitation, because it leads students to underestimate the reality of internal conflict in the Court, but I must hasten to note that the authors often address the key themes of omitted dissents in essays or in other cases. For example the right to privacy chapter concludes with precisely the excerpts from plurality, concurring, and dissenting opinions in WEBSTER V. REPRODUCTIVE HEALTH SERVICES needed to prepare students to discuss the votes and opinions in PLANNED PARENTHOOD V. CASEY. An excellent appendix and clear, concise essays add materially to the value of the book. Useful features in the appendix include an impressive thumbnail sketch of the Court's history and a brief outline of Supreme Court procedures that is much clearer than most essays on the topic. Introductory essays in each chapter set the stage without detracting from the cases themselves. Transitional essays between cases generally provide concise and accurate summaries of cases that cannot be included in full but are essential to understanding what follows. Perhaps the single best feature of the book is the inclusion in each case introduction of a wealth of material on the political and social context of the case. I know of no other text that offers as much useful background material on major "quarrels that shaped the Constitution" as found here, particularly in the INSTITUTIONAL POWERS AND CONSTRAINTS volume where such material is vital for students with limited knowledge of American history. Either of the two volumes could stand alone for the appropriate one-semester/quarter course. The two volumes can be used in sequence wherever a two-semester course adheres to traditional norms for organizing such courses. Although my own two-semester course in constitutional law is a bit too unconventional to correlate with the usual allocation of cases to the two separate volumes (I cover the Supreme Court and race relations from DRED SCOTT to Ollie's Barbecue during the first semester), I have no hesitation in recommending these volumes to instructors who are comfortable with the division of case materials along conventional lines. For new instructors and those returning to the constitutional law course after a lapse of a few semesters, CONSTITUTIONAL LAW FOR A CHANGING AMERICA should provide just the right mix of structure and flexibility. Page 147 follows: Reference Baum, Lawrence (1983). "Judicial Politics: Still a Distinctive Field" in Finifter, Ada W., ed., POLITICAL SCIENCE: THE STATE OF THE DISCIPLINE. Washington: American Political Science Association.

Edward V. Heck

Constitutional Law for a Changing America: Rights, Liberties, and Justice is superb. It entertains students while forcing them to think about the cases and issues. That is a rare achievement for a textbook. [The book] does a great job of placing the cases within the context of their particular eras and reminds students that you cannot divorce courts and their rulings from the rest of the political structure and the times in which the opinions are issued. The text blends social science and law better than any other available today.”

Robert M. Howard

Constitutional Law for a Changing America perfectly balances contextual material with the text of the opinions. No other casebook comes close to matching the depth and breadth of supplementary information. The various tables, charts, and graphs all help students place the Court in the broader context of the American political system. The authors accomplish this while still maintaining a focus on constitutional questions and debates. Especially useful are the “Arguments” sections, which are an exceptionally effective tool for engaging students with the different perspectives in the cases.”

Chad Westerland

This text is the best in its class. There are many outstanding Con Law texts, but this one will always be my first choice. The choice and breadth of the topics covered are exceptional.

Chris Baxter

By far the best textbook out there for constitutional law. . . . I teach my courses from the perspective of both law and politics, and this text allows me to emphasize both.

Jared Perkins

The text makes the complex and delicate topics of rights and liberties relevant and comprehensible to the undergraduate.

Hans Hacker

An in-depth, intuitive, thought-provoking text on constitutional law. . . . This text is a favorite among the students and myself.

Elizabeth Tillman

My students like the Epstein/Walker text not only because the cases are edited in a way that allows for easy reading, but also because the facts and arguments of each case are separated from the decision itself, giving students some guidance in their reading. The additional excerpts provide context for students that they always want to discuss. As an instructor, I like the online bank of cases because the additional resources permit for flexibility in what cases I choose to cover in class.”

Amanda Di Paolo

Constitutional Law for a Changing America is a great teaching textbook. Most constitutional law textbooks begin with an interpretive essay, and then just give the cases one after the other in a separate section. [This book] introduces each topic in a comprehensive way, but then embeds the cases in a narrative that helps students see the cases in context. The authors do a great job of introducing each case, explaining how it relates to other cases and pointing out specific things to look for, to help students think about what they're reading. Combined with the bullet points in the new editions summarizing the arguments for both sides in each case, this is tremendously effective in helping students learn and understand both the details of the cases and their broader significance. The photos and "Aftermath" boxes give students a vivid sense of human stories behind the cases. I use this book with confidence that it will help me teach more effectively."

John Kaplan

“My students like the Epstein/Walker text not only because the cases are edited in a way that allows for easy reading, but also because the facts and arguments of each case are separated from the decision itself, giving students some guidance in their reading. The additional excerpts provide context for students that they always want to discuss. As an instructor, I like the online bank of cases because the additional resources permit for flexibility in what cases I choose to cover in class.”

Amanda DiPaolo