Liberty, Equality, and Due Process

first Edition

Liberty, Equality, and Due Process

by Ruthann Robson

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 Read more >

. 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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About the Author(s)

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).

Conditions of Use and Copyright

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.

CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission.
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Table of Contents

Introduction. Liberty, Equality, and Due Process: Cases, Controversies, and Contexts in Constitutional Law

Introduction.1 - About the Author

Introduction.2 - Notices

Introduction.3 - About CALI eLangdell Press

Introduction.4 - Preface

Chapter One. 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

Chapter Two. 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

Chapter Three. 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

Chapter Four. 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

Chapter Five. 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

Chapter Six. 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

Chapter Seven. THE PRIVILEGES OR IMMUNITIES CLAUSE

7.1 - Saenz v. Roe

7.2 - Notes

7.3 - The Slaughter-House Cases

Chapter Eight. INCORPORATION AND FUNDAMENTAL RIGHTS

8.1 - McDonald v. City of Chicago

8.2 - Notes

Chapter Nine. 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

Chapter Ten. 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

Chapter Eleven. 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

Chapter Twelve. 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