The Bill of Rights in Modern America

Cover

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CONTENTS

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pp. v-

Introduction

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pp. vii-xii

The advent of the twenty-first century, coupled with the close of the Rehnquist Court (1986–2005), provides a timely opportunity to review the place of the Bill of Rights in American life and our constitutional order. Scholars often, though sometimes misleadingly, define the U.S. Supreme Court by ...

The Bill of Rights (and the Fourteenth Amendment)

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pp. 1-3

M Part I. The myth and Reality of Rights

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pp. 5-

1. Rights Consciousness in American History

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pp. 7-24

It is a truism of contemporary law practice that lawyers rarely spend much time kindling in everyday Americans a vivid sense of rights. Far more often, as legal anthropologists have shown, the exchange between clients and lawyers works the other way around. From the moment the injured and aggrieved ...

2. The Explosion and Erosion of Rights

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pp. 25-46

The history of America has been, by and large, the history of the idea of individual liberty and rights. As a nation we were, as Abraham Lincoln reminded his morally torn generation, “conceived in liberty and dedicated to the proposition that all men are created equal.”When Thomas Jefferson and ...

Part II. Modern Rights in Controversy

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pp. 47-

3. The First Amendment and the Freedom to Differ

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pp. 49-66

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” The incorporation doctrine—by which the Bill of Rights applies to the states through the Fourteenth Amendment— makes the amendment effective against state and local governments ...

4. Church and State: The Religion Clauses

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pp. 67-87

The First Amendment to the Constitution contains two clauses concerning religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” For most of the first 150 years following the adoption of the Bill of Rights Congress obeyed this injunction, ...

5. Public Safety and the Right to Bear Arms

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pp. 88-107

On Tuesday, November 20th, 2007, the United States Supreme Court granted certiorari in a case involving the District of Columbia’s ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated ...

6. The Enigmatic Place of Property Rights in Modern Constitutional Thought

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pp. 108-125

The notion that property ownership is essential for the enjoyment of liberty has long been a fundamental tenet of Anglo-American constitutional thought. Property is more than the physical possession of an object. The concept of ownership encompasses a range of interests, including the right ...

7. Reversing the Revolution: Rights of the Accused in a Conservative Age

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pp. 126-147

In 1987 and 1988 the little-known Office of Legal Policy in the Department of Justice released eight reports on criminal procedure.Under the series title “Truth in Criminal Justice,” the papers addressed an assortment of constitutional issues, from pretrial interrogation to habeas corpus to inferences from ...

8. Police Practices and the Bill of Rights

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pp. 148-171

In the late twentieth century America’s fear of violent crime, fueled by drugs and urban street gangs, prompted the government to get tough on crime. In the “law and order” atmosphere of the day those Bill of Rights guarantees that secure the right to be free from unreasonable searches and seizures and ...

9. The “Cruel and Unusual Punishment” Clause:A Limit on the Power to Punish or Constitutional Rhetoric?

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pp. 172-189

The Anglo-American legal system could hardly be described, at least historically, as soft on crime. To give one example from English history: At the time when the prohibition of “cruel and unusual punishments” first appeared as a part of the English Bill of Rights of 1689 (and for many years ...

10. Equal Protection and Affirmative Action

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pp. 190-212

Liberty and equality, proclaimed as self-evident truths in the Declaration of Independence, are the fundamental principles of republican government in the United States. For almost a century after 1776, the existence of slavery denied liberty and mocked equality. The destruction of slavery during the ...

Part III. Rights Remembered, Revised, and Extended

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pp. 213-

11. The Right to Privacy

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pp. 215-240

From the moment it was pronounced fundamental by the Supreme Court in the mid-1960s, the “right to privacy” has been one of American constitutional law’s most prominent paradoxes and flash points. The word “privacy,” after all, appears neither in the body of the Constitution nor in the Bill of ...

12. Second Wind for the State Bill of Rights

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pp. 241-253

Remarkably for a nation whose constitutional framework changes only slowly, Americans experienced in less than half a century two dramatic reversals in the relationship between state protection and federal protection of individual liberties.During the middle of the twentieth century, federal doctrine ...

Notes

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pp. 255-279

Bibliographic Essays

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pp. 281-296

List of Contributors

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pp. 297-300

Table of Cases

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pp. 301-303

Index

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pp. 304-322