This 10th edition of Constitutional Law in a Nutshell summarizes constitutional law from Marbury v. Madison (1803), to the present. The goal has been to discuss the Supreme Court's cases in enough detail to be helpful but not to be verbose in doing so. In this edition we feature thirty new cases. Some of the highlights include Rucho v. Common Cause (2-10) where the Court held 5-4, per Chief Justice Roberts, that partisan gerrymandering is a non-justiciable issue beyond the competence of the federal judiciary. In Department of Commerce v. New York (2019), although the Court ruled that the Enumeration Clause of the Constitution grants authority to Congress and "by extension" to the Secretary of Commerce to include a question about citizenship on the 2020 Census questionnaire, the Court could not approve it because the rationale presented to the Court was contrived and was based on a pretext. In Timbs v. Indiana (2019), the Court demonstrated that there still is vitality in the incorporation doctrine and held that the Excessive Fines Clause of the Eighth Amendment is an "incorporated" protection applicable to the States under the Due Process Clause of the Fourteenth Amendment.

As ever, the free expression area is once again fertile ground for generating Supreme Court case law. In Janus v. American Federation of State, County and Municipal Employees (2018), the Supreme Court, per Justice Alito, 5-4, reversed the 40 year old Abood v. Detroit Board of Education (1977) precedent and held that its ruling requiring non-union members of a public sector union to pay for the collective bargaining of the union is a violation of the First Amendment. In Matal v.Tam (2017), the Court unanimously held that a Lanham Act provision prohibiting the registration of trademarks that "disparage--or bring--into contempt or disrepute" any persons living or dead is a violation of the First Amendment. In the area of freedom of religion, the Court in Trump v. Hawaii (2018), held, 5-4, per Chief Justice Roberts, that a Proclamation prohibiting or limiting the entry into the United States of nationals from seven countries with Muslim majorities did not violate the Establishment Clause. The Proclamation could reasonably be justified on grounds of national security rather than religious hostility. In American Legion v. American Humanist Association (2019), the Court held, 7-2, per Justice Alito, that the Bladensburg Peace Cross, erected in 1925 on public land in Maryland as a memorial to veterans of World War I did not constitute a violation of the Establishment Clause. Government action which removes monuments that have religious symbolism and that have long been on public land could be seen as "aggressively hostile to religion." Finally, in this edition, as in previous ones, the goal has been to present the essence of the Court's decisions in a concise, readable and understandable way.

Imprint: West Academic Publishing
Series: Nutshells
Publication Date: 01/30/2020

Jerome A. Barron, George Washington University Law School

C. Thomas Dienes


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