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Liberty, Equality, and Due Process
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Liberty, Equality, and Due Process

by Ruthann Robson
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This Casebook is intended to be used in a course which concentrates on Constitutional Rights and centers the Fourteenth Amendment. It can be used in a first year Law School course with a title such as “Liberty, Equality, and Due Process,” as it is at CUNY School of Law, an upper division Constitutional Rights course, or an advanced undergraduate course focusing on constitutional rights, especially equality and due process.

The Casebook begins with the threshold issue of “state action” which orients students to a basic but often under-taught principle of constitutional law. The Casebook then considers judicial review and constitutional interpretation. Chapters 3-6 center on equality, including slavery before the Reconstruction Amendments, equal protection for racial, gender, and other classifications, affirmative action, and fundamental rights in equal protection doctrine. Chapters 7-9 are shorter chapters that consider the Privileges or Immunities Clause, Incorporation of Bill of Rights provisions to the states, and the Second Amendment. Chapter 10 focuses on substantive due process, with Chapter 11 treating the “synergy” between due process and equal protection regarding fundamental rights. The brief last Chapter, Chapter 12, includes materials on state constitutional rights, which can be omitted or integrated into previous subjects.

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Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law
About the Author
Notices
About CALI eLangdell Press
Preface
1. AN INTRODUCTION TO CONSTITUTIONAL LAW AND THE ISSUE OF STATE ACTION
1.1. Introduction
1.2. Constitutional Provisions
1.2.1. Fourteenth Amendment
1.2.2. First Amendment
1.2.3. Fifth Amendment
1.2.4. Thirteenth Amendment
1.3. The “Civil Rights Cases”
1.4. Toward a Doctrine of State Action
1.4.1. Marsh v. Alabama
1.4.2. Shelley v. Kraemer
1.4.3. Notes
1.5. State Action in the Civil Rights Era
1.5.1. Burton v. Wilmington Parking Authority
1.5.2. Moose Lodge v. Irvis
1.5.3. Notes
1.6. A Synthesis of State Action
1.6.1. Note: Batson
1.6.2. Edmonson v. Leesville Concrete Company, Inc.
1.6.3. Notes
1.7. Reconsidering the Civil Rights Cases
1.7.1. The Civil Rights Cases
2. INTRODUCTION TO CONSTITUTIONAL INTERPRETATION AND JUDICIAL REVIEW
2.1. A Basic Constitutional Timeline
2.2. Judicial Review
2.2.1. Marbury v. Madison
2.2.2. Notes
2.3. Constitutional Interpretation
2.3.1. Originalist Theories
2.3.2. Pragmatic Theories
2.3.3. Evolutive Theories
2.3.4. Notes
3. SLAVERY AND RACIAL EQUALITY
3.1. Constitutional Equality Before the Reconstruction Amendments
3.2. Litigating Slavery and Equality Before the Reconstruction Amendments
3.2.1. Prigg v. Pennsylvania
3.2.2. Scott v. Sandford
3.2.3. Notes
3.3. Early Cases Applying the Reconstruction Amendments
3.3.1. Strauder v. West Virginia
3.3.2. Notes
3.3.3. Plessy v. Ferguson
3.3.4. Notes
4. RACE AND EQUAL PROTECTION
4.1. Toward Strict Scrutiny
4.1.1. Carolene Products, Footnote Four
4.1.2. The Japanese Internment Cases
4.2. Dismantling Plessy in Education
4.2.1. State of Missouri ex rel. Gaines v. Canada
4.2.2. Sweatt v. Painter
4.2.3. Brown v. Board of Education of Topeka
4.2.4. Bolling v. Sharpe
4.2.5. Brown v. Board of Education of Topeka (Brown II)
4.2.6. Notes
4.2.7. Cooper v. Aaron
4.2.8. Note: Limiting Brown
4.3. Evaluating Racial Classifications
4.3.1. Note: Strict Scrutiny
4.3.2. Loving v. Virginia
4.3.3. Notes
4.4. Neutral Classifications?
4.4.1. Yick Wo v. Hopkins
4.4.2. Washington v. Davis
4.4.3. Arlington Heights v. Metropolitan Housing Dev. Corp.
4.4.4. Notes
4.5. Affirmative Action
4.5.1. The Standard of Scrutiny
4.5.2. Diversity and Education
4.5.3. “Affirmative Action” and the Political Process
5. NONRACIAL CLASSIFICATIONS AND EQUAL PROTECTION
5.1. Rational Basis Standard as Default
5.2. Sex/Gender Classifications
5.2.1. Early Cases
5.2.2. Developing Intermediate Scrutiny
5.2.3. Sex/Gender and “Difference”
5.3. Other Classifications
5.3.1. Illegitimacy, Age, and Language
5.3.2. Classifications Based on Animus
6. FUNDAMENTAL RIGHTS AND EQUAL PROTECTION
6.1. Education
6.1.1. San Antonio Independent School District v. Rodriguez
6.1.2. Plyler v. Doe
6.1.3. Notes
6.2. Voting
6.2.1. Reynolds v. Sims
6.2.2. Harper v. Virginia Board of Elections
6.2.3. Bush v. Gore
6.2.4. Richardson v. Ramirez
6.2.5. Notes
6.3. Travel
6.3.1. Attorney Gen. of New York v. Soto-Lopez
7. THE PRIVILEGES OR IMMUNITIES CLAUSE
7.1. Saenz v. Roe
7.2. Notes
7.3. The Slaughter-House Cases
8. INCORPORATION AND FUNDAMENTAL RIGHTS
8.1. McDonald v. City of Chicago
8.2. Notes
9. THE SECOND AMENDMENT
9.1. District of Columbia v. Heller
9.2. Caetano v. Massachusetts
9.3. New York State Rifle and Pistol Ass'n v. Cuomo
9.4. Notes
10. UNENUMERATED RIGHTS AND DUE PROCESS
10.1. Lochner v. New York
10.2. Meyer v. Nebraska
10.3. Pierce v. Society of Sisters
10.4. Notes
10.5. Griswold v. Connecticut
10.6. Roe v. Wade
10.7. Washington v. Glucksberg
10.8. Note: Bowers v. Hardwick
10.9. Lawrence v. Texas
10.10. Notes
10.11. Note: Casey
10.12. Note: Minors and Abortion
10.13. Whole Woman’s Health v. Hellerstedt
11. LIBERTY, DUE PROCESS, AND EQUAL PROTECTION
11.1. Equal Protection and “Privacy”
11.1.1. Skinner v. State of Oklahoma, ex. rel. Williamson
11.1.2. Eisenstadt v. Baird
11.1.3. Notes
11.2. Same-Sex Marriage
11.2.1. United States v. Windsor
11.2.2. Obergefell v. Hodges
11.2.3. Notes
12. STATE CONSTITUTIONS
12.1. General Principles
12.2. Examples
12.2.1. Education
12.2.2. Disability
12.2.3. “Sodomy”
12.2.4. Minors and Abortions
12.2.5. Same-Sex Marriage
12.2.6. Notes

Ruthann Robson, is Professor of Law & University Distinguished Professor. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law (2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog. She is one of the 26 professors selected for inclusion in What the Best Law Teachers Do (Harvard University Press, 2013).

Ruthann Robson, Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law. Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.

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