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Constitutional Law for a Changing America
Ninth Edition
Constitutional Law for a Changing
America
Rights, Liberties, and Justice

Ninth Edition

Lee Epstein
Washington University in St. Louis
Thomas G. Walker
Emory University
FOR INFORMATION:

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including photocopying, recording, or by any information storage
and retrieval system, without permission in writing from the
publisher.
Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Epstein, Lee, 1958- author.

Constitutional law for a changing America: Rights, liberties, and justice/

Lee Epstein, Thomas G. Walker.— Ninth Edition.

pages cm

Includes bibliographical references and index.

ISBN 978-1-4833-8401-6 (pbk.: alk. paper) 1. Civil rights—United States.

2. Constitutional law—United States. I. Walker, Thomas G., 1945- author.

II. Title. III. Title: Rights, liberties, and justice.

KF4748.E67 2015
342.73—dc23 2015020661

This book is printed on acid-free paper.

Acquisitions Editor: Sarah Calabi

Editorial Assistant: Raquel Christie

Production Editor: Veronica Stapleton Hooper

Copy Editor: Shannon Kelly

Typesetter: C&M Digitals (P) Ltd.

Proofreader: Dennis W. Webb

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Cover Designer: Michael Dubowe

Marketing Manager: Amy Whitaker

Contents
Chronological Table of Cases
Tables, Figures, and Boxes
Preface
I. THE SUPREME COURT AND THE CONSTITUTION
The Living Constitution
The Road to the Bill of Rights
The Amendment Process
The Supreme Court and the Amendment Process
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
2. THE JUDICIARY: INSTITUTIONAL POWERS AND
CONSTRAINTS
Judicial Review
Marbury v. Madison (1803)
Constraints on Judicial Power
Ex parte McCardle (1869)
ANNOTATED READINGS
3. INCORPORATION OF THE BILL OF RIGHTS
Must States Abide by the Bill of Rights? Initial
Responses
Barron v. Baltimore (1833)
Incorporation through the Fourteenth Amendment:
Early Interpretations
Hurtado v. California (1884)
 A Standard Emerges
Palko v. Connecticut (1937)
Incorporation in the Aftermath of Palko
Duncan v. Louisiana (1968)
ANNOTATED READINGS
II. CIVIL LIBERTIES
Approaching Civil Liberties
4. RELIGION: EXERCISE AND ESTABLISHMENT
Defining Religion
Free Exercise of Religion
Cantwell v. Connecticut (1940)
Sherbert v. Verner (1963)
Wisconsin v. Yoder (1972)
Employment Division, Department of Human
Resources of Oregon v. Smith (1990)
City of Boerne v. Flores (1997)
Religious Establishment
Everson v. Board of Education (1947)
School District of Abington Township v.
Schempp; Murray v. Curlett (1963)
Lemon v. Kurtzman; Earley v. DiCenso (1971)
Zelman v. Simmons-Harris (2002)
Edwards v. Aguillard (1987)
Town of Greece v. Galloway (2014)
Van Orden v. Perry (2005)
Hosanna-Tabor Evangelical Lutheran Church and
School v. Equal Employment Opportunity
Commission (2012)
ANNOTATED READINGS
5. FREEDOM OF SPEECH, ASSEMBLY, AND
ASSOCIATION
The Development of Legal Standards: The Emergence
 of Law in Times of Crisis
Schenck v. United States (1919)
Abrams v. United States (1919)
Gitlow v. New York (1925)
Dennis v. United States (1951)
Brandenburg v. Ohio (1969)
Contemporary Tests and Constitutional Guidelines
Content and Contexts
United States v. O’Brien (1968)
Texas v. Johnson (1989)
Chaplinsky v. New Hampshire (1942)
Cohen v. California (1971)
McCullen et al. v. Coakley, Attorney General of
Massachusetts et al. (2014)
Snyder v. Phelps (2011)
United States v. Alvarez (2012)
Tinker v. Des Moines Independent Community
School District (1969)
Morse v. Frederick (2007)
West Virginia State Board of Education v.
Barnette (1943)
Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. (2006)
Bates v. State Bar of Arizona (1977)
Central Hudson Gas and Electric Corporation v.
Public Service Commission of New York (1980)
Boy Scouts of America v. Dale (2000)
ANNOTATED READINGS
6. FREEDOM OF THE PRESS
Prior Restraint
Near v. Minnesota (1931)
New York Times v. United States (1971)
 Hazelwood School District v. Kuhlmeier (1988)
Government Control of Press Content
News Gathering and Special Rights
Branzburg v. Hayes (1972)
ANNOTATED READINGS
7. THE BOUNDARIES OF FREE EXPRESSION:
LIBEL, OBSCENITY, AND EMERGING AREAS OF
GOVERNMENT REGULATION
Libel
New York Times v. Sullivan (1964)
Hustler Magazine v. Falwell (1988)
Obscenity
Roth v. United States (1957)
Miller v. California (1973)
New York v. Ferber (1982)
Cruelty and Violence
Brown v. Entertainment Merchants Association
(2011)
ANNOTATED READINGS
8. THE FIRST AMENDMENT AND THE INTERNET
Shielding Children from Access to Sexually Explicit
Material
Reno v. American Civil Liberties Union (1997)
Prohibiting Child Pornography
United States v. Williams (2008)
Emerging Issues
ANNOTATED READINGS
9. THE RIGHT TO KEEP AND BEAR ARMS
Initial Interpretations
The Second Amendment Revisited
District of Columbia v. Heller (2008)
Heller and the States
 ANNOTATED READINGS
10. THE RIGHT TO PRIVACY
The Right to Privacy: Foundations
Griswold v. Connecticut (1965)
Reproductive Freedom and the Right to Privacy:
Abortion
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania
v. Casey (1992)
Private Activities and the Application of Griswold
Lawrence v. Texas (2003)
Same-Sex Marriage
Obergefell v. Hodges (2015)
Cruzan v. Director, Missouri Department of
Health (1990)
ANNOTATED READINGS
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
11. INVESTIGATIONS AND EVIDENCE
Searches and Seizures
Katz v. United States (1967)
United States v. Jones (2012)
Illinois v. Gates (1983)
Florida v. Jardines (2013)
Safford Unified School District #1 v. Redding
(2009)
Terry v. Ohio (1968)
Enforcing the Fourth Amendment: The Exclusionary
Rule
Mapp v. Ohio (1961)
 United States v. Leon (1984)
Hudson v. Michigan (2006)
The Fifth Amendment and Self-Incrimination
Escobedo v. Illinois (1964)
Miranda v. Arizona (1966)
Missouri v. Seibert (2004)
ANNOTATED READINGS
12. ATTORNEYS, TRIALS, AND PUNISHMENTS
The Right to Counsel
Powell v. Alabama (1932)
Gideon v. Wainwright (1963)
The Pretrial Period and the Right to Bail
The Sixth Amendment and Fair Trials
Batson v. Kentucky (1986)
Sheppard v. Maxwell (1966)
Richmond Newspapers v. Virginia (1980)
Trial Proceedings
Final Trial Stage: An Overview of Sentencing
The Eighth Amendment
Gregg v. Georgia (1976)
Atkins v. Virginia (2002)
Posttrial Protections and the Double Jeopardy Clause
Postrelease Protections
ANNOTATED READINGS
IV. CIVIL RIGHTS
Civil Rights and the Constitution
The Fourteenth Amendment
The Fifteenth Amendment
13. DISCRIMINATION
Race Discrimination and the Foundations of Equal
Protection
Plessy v. Ferguson (1896)
 Sweatt v. Painter (1950)
Brown v. Board of Education (I) (1954)
Brown v. Board of Education (II) (1955)
Swann v. Charlotte-Mecklenburg Board of
Education (1971)
Parents Involved in Community Schools v.
Seattle School District No. 1; Meredith v.
Jefferson County Board of Education (2007)
Modern-Day Treatment of Equal Protection Claims
Rational Basis Scrutiny
Cleburne v. Cleburne Living Center (1985)
Strict Scrutiny and Claims of Race Discrimination
Loving v. Virginia (1967)
Regents of the University of California v. Bakke
(1978)
Grutter v. Bollinger (2003)
Heightened Scrutiny and Claims of Gender
Discrimination
Reed v. Reed (1971)
Craig v. Boren (1976)
United States v. Virginia (1996)
Discrimination Based on Sexual Orientation
Romer v. Evans (1996)
Discrimination Based on Economic Status
San Antonio Independent School District v.
Rodriguez (1973)
Discrimination against Aliens
Plyler v. Doe (1982)
State Action Requirement
Shelley v. Kraemer (1948)
Burton v. Wilmington Parking Authority (1961)
Moose Lodge No. 107 v. Irvis (1972)
 Contemporary Developments in Discrimination Law
ANNOTATED READINGS
14. VOTING AND REPRESENTATION
Elections and the Court
Bush v. Gore (2000)
Voting Rights
South Carolina v. Katzenbach (1966)
Shelby Country, Alabama v. Holder, Attorney
General, et al. (2013)
Crawford v. Marion County Election Board
(2008)
Regulation of Election Campaigns
Citizens United v. Federal Election Commission
(2010)
McCutcheon, et al. v. Federal Election
Commission (2014)
Political Representation
Reynolds v. Sims (1964)
Miller v. Johnson (1995)
ANNOTATED READINGS
Reference Material
Constitution of the United States
The Justices
Glossary
Online Case Archive Index
Case Index
Subject Index
About the Authors
Chronological Table of Cases

THE MARSHALL COURT (1801–1835)

Marbury v. Madison (1803) 46
Barron v. Baltimore (1833) 67
TANEY AND CIVIL WAR COURTS (1836–1888)
Ex parte McCardle (1869) 57
Hurtado v. California (1884) 71
CONSERVATIVE COURT ERAS (1889–1937)
Plessy v. Ferguson (1896) 611
Schenck v. United States (1919) 194
Abrams v. United States (1919) 196
Gitlow v. New York (1925) 200
Near v. Minnesota (1931) 295
Powell v. Alabama (1932) 537
ROOSEVELT AND WORLD WAR II COURT ERAS
(1937–1953)
Palko v. Connecticut (1937) 76
Cantwell v. Connecticut (1940) 100
Chaplinsky v. New Hampshire (1942) 234
West Virginia State Board of Education v. Barnette (1943) 267
Everson v. Board of Education (1947) 132
Shelley v. Kraemer (1948) 707
Sweatt v. Painter (1950) 616
Dennis v. United States (1951) 211
THE WARREN COURT ERA (1953–1969)
Brown v. Board of Education (I) (1954) 619
Brown v. Board of Education (II) (1955) 622
Roth v. United States (1957) 337
Burton v. Wilmington Parking Authority (1961) 710
Mapp v. Ohio (1961) 500
Gideon v. Wainwright (1963) 541
School District of Abington Township v. Schempp; Murray v.
Curlett (1963) 139
Sherbert v. Verner (1963) 106
New York Times v. Sullivan (1964) 322
Reynolds v. Sims (1964) 758
Escobedo v. Illinois (1964) 517
Griswold v. Connecticut (1965) 394
South Carolina v. Katzenbach (1966) 728
Sheppard v. Maxwell (1966) 557
Miranda v. Arizona (1966) 520
Loving v. Virginia (1967) 644
Katz v. United States (1967) 470
Duncan v. Louisiana (1968) 80
United States v. O’Brien (1968) 225
Terry v. Ohio (1968) 494
Tinker v. Des Moines Independent Community School District
(1969) 258
Brandenburg v. Ohio (1969) 217
REPUBLICAN COURT ERAS (1969–)
Swann v. Charlotte-Mecklenburg Board of Education (1971)
626
Cohen v. California (1971) 236
Lemon v. Kurtzman; Earley v. DiCenso (1971) 146
New York Times v. United States (1971) 298
Reed v. Reed (1971) 671
Wisconsin v. Yoder (1972) 110
Moose Lodge No. 107 v. Irvis (1972) 712
Branzburg v. Hayes (1972) 314
Roe v. Wade (1973) 402
San Antonio Independent School District v. Rodriguez (1973)
696
Miller v. California (1973) 342
Gregg v. Georgia (1976) 573
Craig v. Boren (1976) 675
Bates v. State Bar of Arizona (1977) 278
Regents of the University of California v. Bakke (1978) 649
Central Hudson Gas and Electric Corporation v. Public
Service Commission of New York (1980) 282
Richmond Newspapers v. Virginia (1980) 562
Plyler v. Doe (1982) 702
New York v. Ferber (1982) 349
Illinois v. Gates (1983) 479
United States v. Leon (1984) 505
Cleburne v. Cleburne Living Center (1985) 641
Batson v. Kentucky (1986) 551
Edwards v. Aguillard (1987) 162
Hazelwood School District v. Kuhlmeier (1988) 304
Hustler Magazine v. Falwell (1988) 331
Texas v. Johnson (1989) 228
Employment Division, Department of Human Resources of
Oregon v. Smith (1990) 116
Cruzan v. Director, Missouri Department of Health (1990) 450
Planned Parenthood of Southeastern Pennsylvania v. Casey
(1992) 415
Miller v. Johnson (1995) 763
United States v. Virginia (1996) 681
City of Boerne v. Flores (1997) 124
Reno v. American Civil Liberties Union (1997) 364
Boy Scouts of America v. Dale (2000) 286
Bush v. Gore (2000) 717
Atkins v. Virginia (2002) 583
Zelman v. Simmons-Harris (2002) 153
Grutter v. Bollinger (2003) 660
Lawrence v. Texas (2003) 430
Missouri v. Seibert (2004) 530
Van Orden v. Perry (2005) 177
Rumsfeld v. Forum for Academic and Institutional Rights, Inc.
(2006) 272
Hudson v. Michigan (2006) 510
Morse v. Frederick (2007) 262
Parents Involved in Community Schools v. Seattle School
District No. 1; Meredith v. Jefferson County Board of
Education (2007) 631
Crawford v. Marion County Election Board (2008) 737
United States v. Williams (2008) 372
District of Columbia v. Heller (2008) 382
Safford Unified School District #1 v. Redding (2009) 488
Citizens United v. Federal Election Commission (2010) 743
Snyder v. Phelps (2011) 248
Brown v. Entertainment Merchants Association (2011) 356
Hosanna-Tabor Evangelical Lutheran Church and School v.
Equal Employment Opportunity Commission (2012) 183
United States v. Alvarez (2012) 254
United States v. Jones (2012) 475
Florida v. Jardines (2013) 484
Shelby County, Alabama v. Holder, Attorney General, et al.
(2013) 732
McCutcheon, et al. v. Federal Election Commission (2014)
750
McCullen et al. v. Coakley, Attorney General of
Massachusetts, et al. (2014) 242
Town of Greece v. Galloway (2014) 171
Obergefell v. Hodges (2015) 438
Tables, Figures, and Boxes
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