Emerson, Haber, and Dorsen's Political and Civil Rights in the United States
Files
Volume Number
II
Description
This is the fourth edition of legal and other materials that are designed to be a comprehensive source book for lawyers facing civil liberties or civil rights issues in their practice and a teaching text for students who are taking courses and seminars in the subject or doing research in it. The book traces its lineage to mimeographed teaching materials prepared at the Yale Law School by Professors Thomas Emerson and David Haber during the late 1940s and to a first edition they published in 1952. A second edition appeared in 1958 and a third, which Professor Norman Dorsen co-authored, in 1967. Feeling that three generations of a book were enough for them, Professors Emerson and Haber (the latter now at Rutgers Law School at Newark) have handed over the responsibility for producing the fourth edition to us. In accepting the responsibility we salute the able and dedicated work of our predecessors. Since the third edition appeared, the scope and volume of cases and secondary material in the field of political and civil rights have increased enormously. A major concession this has drawn from us is the decision to prepare the two volumes of the book consecutively rather than simultaneously, as in earlier editions. Volume I of the fourth edition was published in 1976. It deals with freedom of expression, and other individual rights such as academic freedom, privacy, travel and religious freedom. It also contains a chapter on the rights of groups with diminished constitutional protection (prisoners, mental patients, military personnel) and extensive materials on the constitutional litigating process. As with the third edition, biennial supplements are prepared to each volume which can be obtained from the publisher or at law school bookstores. The extensive recent developments have also led to a substantial reworking of Volume II. The volume now falls into two main parts—the first dealing with constitutional equal protection theory, the second with equality questions under specific statutes and in particular subject matter areas. The larges addition to the fourth edition of Volume II is contained in Chapters XVIII through XXIII. These chapters, which are all entirely new, contain a systematic exploration of the broad constitutional principles relating to governmental discrimination that have grown up under the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. Chapter XVIII treats the early and largely unsatisfactory development of equal protection principles during the nineteenth century—from the Slaughter House Cases to Plessy v. Ferguson (holding racial segregation constitutional) and Gulf Railway v. Ellis (the first case to hold economic legislation unconstitutional under the rationality branch of equal protection). Chapter XIX, XX, and XXI treat in detail the three main substantive branches of modern equal protection jurisprudence—suspect classifications, fundamental rights and equal protection rationality. Chapter XIX (suspect classifications) is organized to give separate treatment to the problems raised by facial classifications along “suspect” lines, on the one hand (Section A), and the problems raised by nonfacial inequalities, de facto discriminations and questions of discriminatory purpose, on the other (Section B). Separate subsections treat the well-developed law relating to racial classifications; the question of what other classifications should be accorded suspect status; the constitutionality of affirmative action classifications used to redress past or present discrimination against minorities; the standards for proving discriminatory purpose in both legislative and administrative settings; the constitutional status of nonpurposeful discriminations; and the special problem of de facto impacts on the poor. Chapter XX (fundamental rights) first deals with classifications that unequally prohibit or penalize the exercise of express or implied constitutional rights (Section A) and then with the issues of the extent to which classifications affecting other assertedly fundamental—but nonconstitutional—rights should receive similar treatment (Section B). Chapter XXI (rationality) contains a relatively brief treatment of the rise and fall of equal protection rationality during the first part of this century (Sections A and B). This chapter places its primary emphasis, however, on an examination of the re-emergence of significant rationality scrutiny during the late 1960s and early 1970s (Section C). In an attempt to aid in drawing principles from these recent rationality cases, they are organized according to the character of the inequality involved, separate subsections being devoted to assertedly irrational inequalities in classifications relating to economic and labor relations; in classifications relating to incarcerations for crime; in classifications relating to constitutional rights; and to “partially” suspect classifications, such as those along lines of gender and illegitimacy. A final subsection treats the curious doctrine of conclusive or irrebuttable presumptions. Filling out the coverage of constitutional equal protection principles are chapters treating the state action doctrine (Chapter XXII) and the principles governing congressional power to enforce the constitutional guarantees of equal rights (Chapter XXIII). The latter chapter provides a bridge to the statutory material that occupies a large part of the remainder of the volume. With regard to legislative protections of equal rights and equality principles in specific subject matter areas, there are new chapters dealing with Sections 1981 and 1982 of 42 U.S.C., the companion provisions of reconstruction legislation recently given new and expanded life in relation to private discriminations (Chapter XXIV), with Title VI of the 1964 Civil Rights Act, prohibiting discrimination in federally funded programs (Chapter XXVI), with discrimination in municipal services (Chapter XXXI), and with discrimination in family law (Chapter XXXIII). And there are new sections within each of the other chapters of this volume, several of which—education, employment and housing—involve comprehensive treatment of the subject matter. As in the third edition, two different versions of the book are being published—a lawyer’s edition and a law school edition. The latter omits chapters and parts of chapters that are of importance to practicing lawyers but which seem to us less likely to relate to course or seminar material. We have also tried to make the index and the table of contents as complete as possible, and to employ cross-references generously throughout the text. Many footnotes attached to cases and other reprinted materials have been omitted without indication. Footnotes added by the editors are designated by letters rather than numbers. The book include all relevant Supreme Court opinions through the end of the 1977-1978 term. We have also attempted to include lower court cases, legislative developments, and secondary material that was published prior to about May 1, 1978. The references in these volumes are extensive, but the burgeoning materials have nevertheless required some selectivity. Many of the bibliographical references in the lawyer’s edition are omitted from the law school edition. While this is a joint enterprise that has benefited from much discussion among us on all aspects of the book, primary responsibility for chapters was allotted as follows: Dorsen—Chapters XXVIII, XXIX, and XXX; Bender—Chapters XVIII through XXIV and XXVI; Neuborne—Chapters XXV, XXXI, XXXII, and XXXVI; Law—Chapters XXXIII, XXXIV, and XXXV.
Publication Date
1979
Edition
4
Recommended Citation
Dorsen, Norman; Bender, Paul; Neuborne, Burt; and Law, Sylvia A., "Emerson, Haber, and Dorsen's Political and Civil Rights in the United States" (1979). Faculty Books & Edited Works. 436.
https://gretchen.law.nyu.edu/fac-books-edited-works/436
