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Processes of Constitutional Decision Making: Cases And Materials
This popular casebook is highly regarded for its ability to provide a solid introduction to the practical realities of constitutional decision-making by taking a distinctive historical approach. In its revised and updated Fifth Edition, Processes of Constitutional Decisionmaking is an invaluable tool for teaching students the origins and development of constitutional doctrine.
Proven effective through years of successful classroom use, the casebook traces the historical, political, and social development of constitutional law, then considers constitutional questions in a broad historical context, presents cutting-edge contributions from important contemporary legal scholars, discusses seminal cases from the annals of history that show the relevance of historical materials to modern constitutional analysis, provides full treatment of the important issues of civil rights, federalism, and separation of powers, draws on the combined expertise of an outstanding author team, contains particularly strong chapters on the constitutional treatment of sex equality and race.
Longtime users will find much new information in the Fifth Edition, including: timely coverage of civil liberties during wartime, revised and expanded treatment of constitutional rights of sexual orientation minorities, more material on rights of the poor and constitutional rights in the welfare state, and full analysis of new doctrines on federalism and civil rights powers.
Proven effective through years of successful classroom use, the casebook traces the historical, political, and social development of constitutional law, then considers constitutional questions in a broad historical context, presents cutting-edge contributions from important contemporary legal scholars, discusses seminal cases from the annals of history that show the relevance of historical materials to modern constitutional analysis, provides full treatment of the important issues of civil rights, federalism, and separation of powers, draws on the combined expertise of an outstanding author team, contains particularly strong chapters on the constitutional treatment of sex equality and race.
Longtime users will find much new information in the Fifth Edition, including: timely coverage of civil liberties during wartime, revised and expanded treatment of constitutional rights of sexual orientation minorities, more material on rights of the poor and constitutional rights in the welfare state, and full analysis of new doctrines on federalism and civil rights powers.
1856 pages, Hardcover
First published January 1, 1975
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December 21, 2018Very long. Very much like reading a history book.
February 20, 2007
the constitutional reference book for the non-lawyer. of all the books i've ever spent a small fortune on, this is the most useful. except maybe research methods in anthropology, third edition. it's pretty good too.
June 30, 2025
Why did the notes have full cases?!?
April 26, 2025
I'd like to know what the editors were thinking when they thought to themselves, "Hm, yeah, let's make a nearly 2000 page casebook for students to lug around." Did no one think that it might be a good idea to chop some of the unnecessary bits off?? I seriously doubt that even a year-long con law class could read every single page of this. That being said, I did enjoy this, and I thought the discussions were helpful. Some cases could've been abridged more for sure, and I would've liked better descriptions of the overall doctrine as a big-picture idea, but it did make me really enjoy con law.
September 23, 2021
A bit biased because I had Jack Balkin, one of the people who wrote the book, for this class. Classic case of buy my mixtape, but he's such a sweetheart, the most tech savvy over sixty I've ever met, and a big ass nerd. You really can't complain much. I really appreciated the historical bent of the book which made it enjoyable for someone like me, with no previous background in American history - let alone American legal history.
The book is divided into discrete topics - but largely moving historically - in American constitutional law.
(Intro section with Chiafalo v Washington - Punishing unfaithful electors & The Louisiana Purchase - Jefferson looking at the constitution and saying, LOL, then violating it - to demonstrate kinds of constitutional arguments)
1. National Powers - McCulloch v Maryland; first and second bank of the United States; Presidential authority.
2. Judicial Review - The Election of 1800; Stuart v. Laird; Marbury v. Madison; Jurisdictional stripping.
3. Commerce Power and "General Welfare" - Gibbons v. ogden; Federal Preemption; Interstate federalism and the national economy;
5. Jacksonian era and slavery - Natural Law Tradition + Calder v. Bull; Barron v. City of Baltimore; Prigg v. Pennsylvania (ugh, fuck this dude); Dredd Scott v. Sandford (fuck this racist court); and Fredrick Douglass' essay, "The constitution of the United States: Is it pro-slavery or Anti Slavery".
6. The Civil War and War Power - The Prize cases (you go Lincoln!); Youngstown Sheet & Tube Co. v. Sawyer; Lincoln's suspension of habeas corpus (I stopped being a procedural whore after watching how people who actually wielded power cared so little about procedure so, you know, mixed feelings); The Emancipation Proclamation.
7. Reconstruction & Reaction - 13th, 14th and 15th amendments to the U.S. constitution (13 -abolish slavery except as "punishment for crimes" - you know the racists had to sneak that one in there; 14th - Grant citizenship to everyone born or naturalized in the U.S. - so effectively overrule Dredd Scott + Due process and Equal Protection clauses; 15th - let African American men vote, as a treat); Slaughterhouse cases (white Louisianans ever ready to co-opt constitutional protections not meant for them); United States v. Cruikshanks; Women's citizenship in the Antebellum (social citizenship i.e. equal to men socially, but not politically or civically); Bradwell v. Illinois; Minor v. Happersett; Strauder v. West Virginia; Civil Rights Cases; the "meaning of slavery"; Plessy v. Ferguson ("separate but equal + one drop rule, ugh); Insular cases (U.S. colonialism and colonial racism - sorry Puerto Rico; Phillipines; Guam - RIP Judge Juan Torruela).
8. The Lochner era (fucked up beyond measure: basically the court shits on labour protections for years). Divided into two parts.
A. Police Powers Jurisprudence - so due process protection against state economic regulation; applying the bill of rights to the states; Lochner v. New York; Coppage v. Kansas; Muller v. Oregon; Jacobson v. Massachusetts; and
B. The Decline of Police Powers Jurisprudence - so Nebbia v. New York; Home Building & Loan Association v. Blaisdell; West Coast Hotel v. Parrish (give women minimum wage protection you fuckers!).
9. The New Deal + Emergence of Modern Paradigm of Judicial Scrutiny - U.S. v. Carolene Products (If I hear about footnote 4 one more fucking time !!!); Williamson v. Lee Optical; Constitutional Modernity; Incorporating the bill of rights against the states; Timbs v. Indiana; Ramos v. Louisiana.
10. New Deal struggle over National Power + The Emergence of the Modern Regulatory State (You go, FDR!)
A. Dual Federalism Enforcement - Hammer v. Dagenhart; Bailey v. Drexel Furniture.
B. The Court Strikes Down Early new Deal Programs - Schechter Poultry Corp. v. United States; Carter v. Carter Coal; United States v. Butler.
C. The Revolution of 1937 (fuck yeah!) - FDR Fireside chat; NLRB v. Jones & Laughlin Steel Corp; United States v. Darby; FDR speech on the constitution; Wickard v. Filburn (Farmer Filburn just wants to eat his fucking corn yo, lol); Taxing & Spending Power.
11. The Warren Court and the Civil Rights Movement.
A. Civil Rights Act of 1964 - Congressional Power to pass the civil rights bill; Heart of Atlanta Motel; Katzenbach v. McClung (I fuck with the amorphous all encompassing commerce power clause); Jones v. Alfred Mayer Co.
B. Voting Rights Act of 1965 - Reconstruction Power in the Civil Rights Era; South Carolina v. Katzenbach; Katzenbach v. Morgan.
12. Presidential Power
A. Presidential Appointments & Independent Federal Agencies - Morrison v. Olson; Free Enterprise Fund v. PCAOB; Seila Law LLC. v. Consumer Financial Protection Bureau.
B. Executive Privilege - United States v. Nixon (Fuck Dick Nixon); Congressional Oversight in the Trump Presidency (Fuck Donald Trump); Trump v. Vance (Fuck Donald Trump); Trump v. Mazars USA, LLP (Fuck Donald Trump)
C. Presentment Clause - INS v. Chadha
13. The Contemporary Debate over National Power
A. The Commerce Power (Big Dick Energy Power in the right hands) - United States v. Lopex; United States v. Morrison; Scarborough v. United States; Gonzales v. Raich; NFIB v. Sebelius (they really hate the Affordable Care Act, huh?); United States v. Comstock.
B. Taxing Power - NFIB v. Sebelius (Roberts' justification for upholding a section of the act)
C. Spending Power - Spending Clause; South Dakota v. Dole; NFIB v. Sebelius
D. Implied Limits on Federal Regulation of the States - New York v. United States; Printz v. United States; Cooperative & Uncooperative federalism; Hans v. Louisiana; State Sovereign Immunity.
E. Congressional Power to Enforce the Civil War Amendments - City of Boerne v. Flores; U.S. v. Morrison; Board of Trustees of the University of Alabama v. Garrett.
14. The Modern Debate over Racial Equality
A. Brown & Its Legacy - Background to the school desegregation case; Brown v. Board of Education; Bolling v. Sharpe; The Southern Manifesto (fuck Richard Brevard Russell & the Southern Democrats); Brown and the Original Understanding; Four Decades of School Desegregation; Parents Involved In Community Schools v. Seattle School District No. 1 (white liberals be like, I'll donate what you want, just don't make my kid have to go to school with the black kids - cue Phil Ochs' "Love me I'm a Liberal).
B. Anticlassification and Antisubordination - Koreamatsu v. United States (let's put Japanese Americans into concentration camps); Loving v. Virginia (interracial marriage is against nature and whiteness)
15. What Constitutes Discrimination "based on" Race
A. The Reach of the Suspect Classification Doctrine - Brown v. Oneonta; Johnson v. California; Note on Child Custody and Placement Policies; note on Government Collection and Use of Racial Data; Note on Four Concepts of Race.
B. Discriminatory Intention - Early Cases on Racial Discrimination; Griggs v. Duke Power; Washington v. Davies; Village of Arlington Heights v. Metro Housing Development Corp; Personnel Administrator of Massachusetts v. Feeney; McCleskey v. Kemp.
16. Affirmative Action (or as someone said to me, "In France we call it ze Positive Discrimination"
Baker v. Regents of the University of California; Richmond v. J.A. Croson; Adarand Constructors v. Pena; Note on Originalism & Affirmative Action; Grutter v. Bollinger; Gratz v. Bollinger (Lee C. Bollinger is shady); Fisher v. University of Texas at Austin; Hua Hsu - The Rise and Fall of Affirmative Action.
17. Gender Classification and Gender Identity
-Frontiero v. Richardson; United States v. Virginia; Personnel Administrator of Massachusetts v. Feeney; Geduldig v. Aiello (Give pregnant women insurance benefits, yo!); Note on Pregnancy as a justification for differentiated treatment of men and women; Reva Siegel: The Nineteenth Amendment; Note on the Equal Rights Amendment; Note on Ratifying the ERA today.
18. Alienange and Other Suspect Classifications
A. Other Suspect Classifications - Other Suspect bases of classification; Cleburne v. Cleburne Living Center.
B. Alienage - Cases & Notes on Alienage and the Equal Protection Clause; Trump v. Hawaii (Fuck Donald Trump); Department of Homeland Security v. Regents of the University of California.
19. Equal Protection and Fundamental Rights
A. Equal Protection and Fundamental Rights - Harper v. Virginia Board of Elections; Note on Protecting the Poor through the 14th Amendment; Dandridge v. Williams; San Antonio Independent School District v. Rodriguez; Note on the Enforceability of Positive Rights (Isaiah Berlin the shit out of this one!); South Bay United Pentecostal Church v. Newsom (Is Newsom awesome? Sometimes.)
B. The Constitutionality of a Wealth Tax (Tax 'Em!) - Note on the Sixteenth Amendment; NFIB v. Sebelius (again, again)
20. Modern Substantive Due Process: "Privacy", Sexual Autonomy or Tradition?
-Historical Roots of Fundamental Rights Adjudication; Griswold v. Connecticut; Notes on the Reach of Griswold; Note on Tradition as a Source of Fundamental Rights; Lawrence v. Texas; Roe v. Wade; Note: Did Roe Cause the Abortion Conflict?; Abortion and the Equal Protection Clause.
21. Abortion and Gender Discrimination
Note on Decisions After Roe - Maher v. Roe & Harris v. McCrae; Planned Parenthood of Southeastern Pennsylvania v. Casey; Gonzales v. Carhart; note on Absolute and Incremental Restrictions on Abortion; Whole Woman's Health v. Hellerstedt; June Medical Services LLC v. Russo.
22. Sexual Orientation - Due Process or Equal Protection?
Romer v. Evans; Note on Liberty, Equality, and Lawrence; Note on Sexual Orientation, Equal Protection, and Heightened Scrutiny (or, as our boy Rudy Giuliani calls it "uh, normal scrutiny?"); United States v. Windsor (Edith Windsor just really doesn't want you to tax her more just because she's gay); Obergefell v. Hodges (gay people can have a little marriage, as a treat); Note on Backlash and Social Movements; Bostock v. Clayton County (firing people because they are gay violates Title VII of the civil Rights Act).
And now, a nap.
The book is divided into discrete topics - but largely moving historically - in American constitutional law.
(Intro section with Chiafalo v Washington - Punishing unfaithful electors & The Louisiana Purchase - Jefferson looking at the constitution and saying, LOL, then violating it - to demonstrate kinds of constitutional arguments)
1. National Powers - McCulloch v Maryland; first and second bank of the United States; Presidential authority.
2. Judicial Review - The Election of 1800; Stuart v. Laird; Marbury v. Madison; Jurisdictional stripping.
3. Commerce Power and "General Welfare" - Gibbons v. ogden; Federal Preemption; Interstate federalism and the national economy;
5. Jacksonian era and slavery - Natural Law Tradition + Calder v. Bull; Barron v. City of Baltimore; Prigg v. Pennsylvania (ugh, fuck this dude); Dredd Scott v. Sandford (fuck this racist court); and Fredrick Douglass' essay, "The constitution of the United States: Is it pro-slavery or Anti Slavery".
6. The Civil War and War Power - The Prize cases (you go Lincoln!); Youngstown Sheet & Tube Co. v. Sawyer; Lincoln's suspension of habeas corpus (I stopped being a procedural whore after watching how people who actually wielded power cared so little about procedure so, you know, mixed feelings); The Emancipation Proclamation.
7. Reconstruction & Reaction - 13th, 14th and 15th amendments to the U.S. constitution (13 -abolish slavery except as "punishment for crimes" - you know the racists had to sneak that one in there; 14th - Grant citizenship to everyone born or naturalized in the U.S. - so effectively overrule Dredd Scott + Due process and Equal Protection clauses; 15th - let African American men vote, as a treat); Slaughterhouse cases (white Louisianans ever ready to co-opt constitutional protections not meant for them); United States v. Cruikshanks; Women's citizenship in the Antebellum (social citizenship i.e. equal to men socially, but not politically or civically); Bradwell v. Illinois; Minor v. Happersett; Strauder v. West Virginia; Civil Rights Cases; the "meaning of slavery"; Plessy v. Ferguson ("separate but equal + one drop rule, ugh); Insular cases (U.S. colonialism and colonial racism - sorry Puerto Rico; Phillipines; Guam - RIP Judge Juan Torruela).
8. The Lochner era (fucked up beyond measure: basically the court shits on labour protections for years). Divided into two parts.
A. Police Powers Jurisprudence - so due process protection against state economic regulation; applying the bill of rights to the states; Lochner v. New York; Coppage v. Kansas; Muller v. Oregon; Jacobson v. Massachusetts; and
B. The Decline of Police Powers Jurisprudence - so Nebbia v. New York; Home Building & Loan Association v. Blaisdell; West Coast Hotel v. Parrish (give women minimum wage protection you fuckers!).
9. The New Deal + Emergence of Modern Paradigm of Judicial Scrutiny - U.S. v. Carolene Products (If I hear about footnote 4 one more fucking time !!!); Williamson v. Lee Optical; Constitutional Modernity; Incorporating the bill of rights against the states; Timbs v. Indiana; Ramos v. Louisiana.
10. New Deal struggle over National Power + The Emergence of the Modern Regulatory State (You go, FDR!)
A. Dual Federalism Enforcement - Hammer v. Dagenhart; Bailey v. Drexel Furniture.
B. The Court Strikes Down Early new Deal Programs - Schechter Poultry Corp. v. United States; Carter v. Carter Coal; United States v. Butler.
C. The Revolution of 1937 (fuck yeah!) - FDR Fireside chat; NLRB v. Jones & Laughlin Steel Corp; United States v. Darby; FDR speech on the constitution; Wickard v. Filburn (Farmer Filburn just wants to eat his fucking corn yo, lol); Taxing & Spending Power.
11. The Warren Court and the Civil Rights Movement.
A. Civil Rights Act of 1964 - Congressional Power to pass the civil rights bill; Heart of Atlanta Motel; Katzenbach v. McClung (I fuck with the amorphous all encompassing commerce power clause); Jones v. Alfred Mayer Co.
B. Voting Rights Act of 1965 - Reconstruction Power in the Civil Rights Era; South Carolina v. Katzenbach; Katzenbach v. Morgan.
12. Presidential Power
A. Presidential Appointments & Independent Federal Agencies - Morrison v. Olson; Free Enterprise Fund v. PCAOB; Seila Law LLC. v. Consumer Financial Protection Bureau.
B. Executive Privilege - United States v. Nixon (Fuck Dick Nixon); Congressional Oversight in the Trump Presidency (Fuck Donald Trump); Trump v. Vance (Fuck Donald Trump); Trump v. Mazars USA, LLP (Fuck Donald Trump)
C. Presentment Clause - INS v. Chadha
13. The Contemporary Debate over National Power
A. The Commerce Power (Big Dick Energy Power in the right hands) - United States v. Lopex; United States v. Morrison; Scarborough v. United States; Gonzales v. Raich; NFIB v. Sebelius (they really hate the Affordable Care Act, huh?); United States v. Comstock.
B. Taxing Power - NFIB v. Sebelius (Roberts' justification for upholding a section of the act)
C. Spending Power - Spending Clause; South Dakota v. Dole; NFIB v. Sebelius
D. Implied Limits on Federal Regulation of the States - New York v. United States; Printz v. United States; Cooperative & Uncooperative federalism; Hans v. Louisiana; State Sovereign Immunity.
E. Congressional Power to Enforce the Civil War Amendments - City of Boerne v. Flores; U.S. v. Morrison; Board of Trustees of the University of Alabama v. Garrett.
14. The Modern Debate over Racial Equality
A. Brown & Its Legacy - Background to the school desegregation case; Brown v. Board of Education; Bolling v. Sharpe; The Southern Manifesto (fuck Richard Brevard Russell & the Southern Democrats); Brown and the Original Understanding; Four Decades of School Desegregation; Parents Involved In Community Schools v. Seattle School District No. 1 (white liberals be like, I'll donate what you want, just don't make my kid have to go to school with the black kids - cue Phil Ochs' "Love me I'm a Liberal).
B. Anticlassification and Antisubordination - Koreamatsu v. United States (let's put Japanese Americans into concentration camps); Loving v. Virginia (interracial marriage is against nature and whiteness)
15. What Constitutes Discrimination "based on" Race
A. The Reach of the Suspect Classification Doctrine - Brown v. Oneonta; Johnson v. California; Note on Child Custody and Placement Policies; note on Government Collection and Use of Racial Data; Note on Four Concepts of Race.
B. Discriminatory Intention - Early Cases on Racial Discrimination; Griggs v. Duke Power; Washington v. Davies; Village of Arlington Heights v. Metro Housing Development Corp; Personnel Administrator of Massachusetts v. Feeney; McCleskey v. Kemp.
16. Affirmative Action (or as someone said to me, "In France we call it ze Positive Discrimination"
Baker v. Regents of the University of California; Richmond v. J.A. Croson; Adarand Constructors v. Pena; Note on Originalism & Affirmative Action; Grutter v. Bollinger; Gratz v. Bollinger (Lee C. Bollinger is shady); Fisher v. University of Texas at Austin; Hua Hsu - The Rise and Fall of Affirmative Action.
17. Gender Classification and Gender Identity
-Frontiero v. Richardson; United States v. Virginia; Personnel Administrator of Massachusetts v. Feeney; Geduldig v. Aiello (Give pregnant women insurance benefits, yo!); Note on Pregnancy as a justification for differentiated treatment of men and women; Reva Siegel: The Nineteenth Amendment; Note on the Equal Rights Amendment; Note on Ratifying the ERA today.
18. Alienange and Other Suspect Classifications
A. Other Suspect Classifications - Other Suspect bases of classification; Cleburne v. Cleburne Living Center.
B. Alienage - Cases & Notes on Alienage and the Equal Protection Clause; Trump v. Hawaii (Fuck Donald Trump); Department of Homeland Security v. Regents of the University of California.
19. Equal Protection and Fundamental Rights
A. Equal Protection and Fundamental Rights - Harper v. Virginia Board of Elections; Note on Protecting the Poor through the 14th Amendment; Dandridge v. Williams; San Antonio Independent School District v. Rodriguez; Note on the Enforceability of Positive Rights (Isaiah Berlin the shit out of this one!); South Bay United Pentecostal Church v. Newsom (Is Newsom awesome? Sometimes.)
B. The Constitutionality of a Wealth Tax (Tax 'Em!) - Note on the Sixteenth Amendment; NFIB v. Sebelius (again, again)
20. Modern Substantive Due Process: "Privacy", Sexual Autonomy or Tradition?
-Historical Roots of Fundamental Rights Adjudication; Griswold v. Connecticut; Notes on the Reach of Griswold; Note on Tradition as a Source of Fundamental Rights; Lawrence v. Texas; Roe v. Wade; Note: Did Roe Cause the Abortion Conflict?; Abortion and the Equal Protection Clause.
21. Abortion and Gender Discrimination
Note on Decisions After Roe - Maher v. Roe & Harris v. McCrae; Planned Parenthood of Southeastern Pennsylvania v. Casey; Gonzales v. Carhart; note on Absolute and Incremental Restrictions on Abortion; Whole Woman's Health v. Hellerstedt; June Medical Services LLC v. Russo.
22. Sexual Orientation - Due Process or Equal Protection?
Romer v. Evans; Note on Liberty, Equality, and Lawrence; Note on Sexual Orientation, Equal Protection, and Heightened Scrutiny (or, as our boy Rudy Giuliani calls it "uh, normal scrutiny?"); United States v. Windsor (Edith Windsor just really doesn't want you to tax her more just because she's gay); Obergefell v. Hodges (gay people can have a little marriage, as a treat); Note on Backlash and Social Movements; Bostock v. Clayton County (firing people because they are gay violates Title VII of the civil Rights Act).
And now, a nap.
March 28, 2022
I'm not just saying this because I am disgruntled by school--but this is the worst-edited, least helpful casebook I have ever used. hated this book.
May 6, 2024
About as well-made a law textbook as you’ll find. Really enjoyed the historical approach to the development of federalism, as a separate line of thought from constitutional rights.
Read
June 7, 2008Oddly, there is so much good supplementary material in this, that I'd recommend it (cases largely excepted) to anyone who's looking for an entry into American legal history.
But it is a massive conlaw casebook (nearly 2000 pages, I think), and most of the material is better read for credit.
But it is a massive conlaw casebook (nearly 2000 pages, I think), and most of the material is better read for credit.
March 6, 2014
text does not live up to its pretentious title. decent coverage of the subject matter, however.
Displaying 1 - 10 of 10 reviews