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The Dynamic Constitution
In this book Harvard law professor Richard H. Fallon, Jr., introduces
nonlawyers to the workings of American Constitutional Law. He writes
with clarity and vigor about leading constitutional doctrines and issues,
including the freedom of speech, the freedom of religion, the guarantee
of equal protection, rights to fair procedures, and rights to privacy and
sexual autonomy. Along the way, Fallon describes many of the fascinat-
ing cases and personalities that have shaped constitutional law. He shows
how historical, cultural, and other factors have influenced constitutional
adjudication, making clear the dynamic nature of the Constitution. For
both the courts and the American people, Fallon argues, the Consti-
tution must serve as a dynamic document that adapts to the changing
conditions inherent in human affairs. Fallon goes on to defend dynamic
constitutionalism by confronting head on the concerns that some critics
have raised.
Richard H. Fallon, Jr., is the Ralph S. Tyler Professor of Constitutional
Law at the Harvard Law School. He earned his B.A. from Yale Univer-
sity, matriculated as a Rhodes Scholar at Oxford University, and then
took his legal education at the Yale Law School. Widely known for his
expertise in constitutional law and the federal courts, Fallon has been
a valuable advisor to many organizations and litigants facing constitu-
tional issues. Professor Fallon is also an accomplished educator. He is
coeditor of a leading constitutional law case book, and he was voted
the most outstanding teacher on the Harvard Law School faculty by the

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Published in the United States of America by Cambridge University Press, New York
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For Jenny
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CB732-FM CB732-Fallon-v1 June 14, 2004 12:27
contents
2 Freedom of Religion 57
Introduction to the Establishment Clause 59
Religion in the Public Schools 61
Governmental Aid to Religious Institutions 63
The Free Exercise Clause 67
Voluntary Governmental Accommodations of Religion 71
Tensions Between the Free Exercise and
Establishment Clauses 72
3 Protection of Economic Liberties 75
Early History 76
The Fourteenth Amendment 78
Substantive Due Process 81
Modern Contracts Clause Doctrine 86
The Takings Clause 87
Concluding Thoughts 89
4 Rights to Fair Procedures 91
Procedural Rights in Criminal Cases 92
Time, Elections, and Change 97
The Law on the Books versus the Law in Practice 98
Procedural Rights in Civil Cases 100
Due Process in Administrative Proceedings 101
5 Equal Protection of the Laws 106
Equal Protection and the Constitution 109
Rational Basis Review 111
Race and the Constitution: Invidious Discrimination 114
Race and the Constitution: Disparate Impact 122
Affirmative Action 123
Gender and the Constitution 129

9 Judicial Power 189
The Character of Judicial Power 191
Anxieties About Judicial Power 194
Limits on Judicial Power 200
Part III: Further Issues of Constitutional Structure and
Individual Rights
10 Elections, Political Democracy, and the Constitution 207
Voting Rights: The “One-Person, One-Vote” Cases 210
Beyond “One-Person, One-Vote” 212
Majority–Minority Districting 214
Equality in the Counting of Votes 216
Ballot Access 218
Campaign Speech and Finance Regulation 220
Conclusion 224
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contents
11 Structural Limits on State Power and Resulting
Individual Rights 225
How Federal Power and Federal Law Can Restrict
State Power 226
The Privileges and Immunities Clause 227
The “Dormant” Commerce Clause 231
The States as “Market Participants” 234
Conclusion 235
12 The Constitution in War and Emergency 237
The Power to Initiate War 240
Federal Powers During Wartime 242
War and Individual Rights 243

have asked me to recommend a book introducing constitutional law
to nonlawyers, I have usually named McCloskey’s. Increasingly, how-
ever, I have done so hesitantly. The organization of McCloskey’s book
is mainly historical. It discusses successive eras in the history of the
Supreme Court, often brilliantly, but without attempting to provide
the clear portrait of contemporary constitutional law, and of the de-
bates surrounding it, that some readers want. In addition, The Amer-
ican Supreme Court has inevitably grown dated with the passage of
time, despite able efforts by one of McCloskey’s former students to
summarize recent developments in additional chapters. McCloskey’s
book naturally reflects the political and scholarly concerns of the pe-
riod in which he wrote it, now more than four decades ago. It is time
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preface
for a new introduction to American constitutional law, written in the
twenty-first century for a contemporary audience.
In writing a book for twenty-first-century readers, I have addressed
constitutional law from several simultaneous perspectives. First, and
perhaps most important, this book sketches the basic outlines of cur-
rent constitutional doctrine. In chapters with headings such as “The
Powers of Congress,”“The Freedom of Speech,”“The Equal Protec-
tion of the Laws,” and “The Constitution in War and Emergency,”
the book discusses leading Supreme Court cases dealing with the
powers of Congress and the President and with such issues as hate
speech, race and gender discrimination, abortion, gay rights, and af-
firmative action. It explains why the Court has analyzed these issues
as it has, describes debates among the Justices, and anticipates future
challenges.

Fourth, this book deals openly with the now familiar insight that
loosely “political” values and concerns influence Supreme Court
decision-making. As any reader of newspapers knows, the Court
has “liberal” and “conservative” Justices who attract those labels
by reaching conclusions that can plausibly be identified as liberal or
conservative most of the time. This is a phenomenon that needs to be
explained, not ignored, and surely not denied. At the same time, I do
not believe that judicial politics are simply a concealed form of parti-
san electoral politics. In this book I try to explain the ways in which
Supreme Court decision-making is and is not (or at least should not
be) “political.”
Before concluding this Preface, I should probably say explicitly
what is perhaps evident already. Constitutional law is an argumen-
tative subject. There are certain facts of the matter – what the Con-
stitution says, what the Supreme Court has held in past cases, and so
forth. But lawyers, concerned citizens, and Supreme Court Justices all
argue ceaselessly with each other about how the Constitution should
be interpreted and applied. At some points, this book tries to stand
outside of constitutional arguments andexplain them dispassionately.
Even then, I am probably too engaged by some issues to adopt a truly
neutral perspective. At other points I join the arguments unabashedly
and offer my own opinions, partly because I cannot help myself, be-
cause I cannot be indifferent, and partly because constitutional law
is ultimately inseparable from constitutional argument. To a large
extent, to understand constitutional law is to know how to partici-
pate in constitutional debates. There would be no better indication
that this book has succeeded in introducing constitutional law suc-
cessfully than if the reader, at certain points, feels both provoked and
empowered to argue with my judgments.
In one sense, this book has been many years in the making. It re-

purposes, and not the person who first spoke or wrote them.
– Bishop Hoadly’s Sermon, preached before King
(George I of England), March 31, 1717
On December 9, 2000, American politics slammed to a halt as the
nation awaited a Supreme Court decision likely to settle that year’s
presidential election. Roughly a month earlier, the voters had gone
to the polls and produced nearly an even split between Republican
George Bush and Democrat Al Gore. Before the long election night
was over, three things became apparent. First, more Americans voted
for Gore than for Bush. Second, despite Gore’s popular victory, the
presidency would go to the candidate who carried Florida. Third,
the initial Florida count had Bush winning by a narrow margin,
but the correctness of the machine-counted tally remained subject
to question.
Florida turned out to be key to the presidency because the Con-
stitution provides for the President to be chosen by the “electoral
college” rather than the nationwide popular vote. Under the elec-
toral college system, each state has an assigned number of presiden-
tial votes, based mostly on its population. Without Florida, neither
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prologue
Gore nor Bush had the necessary electoral votes to win the election.
A Florida victory would put either over the top.
Unfortunately, confusion and irregularity plagued the Florida
count. Among the sources of confusion, several large counties used
voting machines that required voters to punch holes in their ballots
with a stylus. The hand-punched ballots were then fed into machines
designed to tally the votes. But the machines were imperfect: It was

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prologue
pledged to Gore, the other appointed by the Florida legislature and
pledged to Bush.
With the Florida recount about to begin on Saturday, December 9,
lawyers for Bush raced to the Supreme Court of the United States.
They made two main arguments. First, the Bush lawyers argued that
the state court’s decision to order a recount violated Florida law,
because the time set for recounts by the Florida legislature had al-
ready passed. Ordinarily, the Supreme Court would leave the inter-
pretation and enforcement of Florida law to the Florida courts and
intervene only to correct violations of the federal Constitution. But
this case was unusual, Bush argued, because the Florida Supreme
Court’s disobedience of Florida law was itself a violation of the fed-
eral Constitution: Article II specifically directs that presidential elec-
tors should be chosen “in such Manner as the [state] Legislature,”
rather than state courts, may direct. Second, Bush contended that the
Florida Supreme Court had violated the Constitution’s Due Process
and Equal Protection Clauses by ordering a recount and giving vote
counters no more direction than that they should seek to identify “the
intent of the voter.” If the Florida court could order a recount at all,
it had to give further guidance, he said, to ensure that different vote-
counting teams would not reach different conclusions based on iden-
tical facts.
On the same Saturday that Bush filed the case, the Supreme Court,
by a vote of 5–4, ordered the Florida recount halted until it was
able to rule on Bush’s arguments – even though December 9 was
just three days before what a majority of the Justices understood to
be a Florida deadline of December 12 for the state’s voters in the
electoral college to be finally certified. At the same time, it scheduled

required a final certification of election results by December 12, and
December 12 was already at hand. With that decision by the Supreme
Court, debate and uncertainty about who would be the next President
ended. Bush, the pre-recount winner, won Florida’s electoral votes
and with them the presidential election.
Bush v. Gore is the kind of “great case” that comes along no more
than once in a generation. It would be a huge mistake to think that the
Supreme Court’s decision illustrates how the Court “usually” func-
tions. Even so, Bush v. Gore provides an instructive prism through
which to begin to examine the Constitution of the United States, some
of the legal and political practices that have grown up around it, and
the role of the Supreme Court. A few central points stand out:
The Constitution literally constitutes, or establishes and empow-
ers, the United States of America. Americans are a dramatically di-
verse people in many ways – racially, religiously, geographically, and
economically. For the most part, however, we are joined by our al-
legiance to the Constitution and our shared acceptance of the gov-
ernmental structure that the Constitution creates. All of the legal and
political debates in Bush v. Gore were debates under the Constitution,
unimaginable in its absence.
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The Constitution assigns important roles to a variety of institu-
tions, all vital to an understanding of constitutional law. The Con-
stitution creates the presidency that was at stake in Bush v. Gore. It
also establishes a judicial system, headed by the Supreme Court, and
a Congress. Representation in the House of Representatives is based
on population, but each state, regardless of size, gets two votes in

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centuries ago, the French observer Alexis de Tocqueville shrewdly
noted that in the American mind, most political issues have a legal
or constitutional dimension. Moreover, as Bush v. Gore illustrates,
judicial decisions can have profound political implications.
Constitutional adjudication is frequently a highly judgmental pro-
cess. Some people may assume that the Supreme Court decides con-
stitutional cases by simply taking note of the Constitution’s plain lan-
guage, perhaps in light of “the framers’ intent,” and then applying
the written text rather mechanically to the problem at hand. This im-
age is often dramatically misleading. In Bush v. Gore, a majority of the
Justices concluded that the recount ordered by the Florida Supreme
Court would have violated the Equal Protection Clause because dif-
ferent vote-counting teams would predictably have applied different
standards in determining which ballots to count. Maybe this decision
was correct, but no one suggested that the Equal Protection Clause
was originally understood or intended to bar electoral recounts occur-
ring under vague standards. That provision was ratified in the wake
of the Civil War, with concerns about racial discrimination foremost
in mind, in a period when there were no voting machines and nearly
all ballots were hand-counted in an effort to discern the intent of
the voter. The decision in Bush v. Gore turned not on the plain or
originally understood meaning of the Equal Protection Clause, but
instead reflected the current Justices’ assessment of what is fair and
unfair – a question on which reasonable minds might differ, as the
Justices in fact did. Two Justices wrote opinions saying that they saw
no constitutional defect in the Florida recount, and a third Justice

from the Court’s ruling.
The correctness and “legitimacy” of judicial rulings can be ques-
tioned even when judicial power is not doubted. Judicial power to
issue ultimate rulings on constitutional issues seems largely unchal-
lenged, at least for the time being. But the legitimacy of particular
exercises of that power is always open to question. People may agree
that the Supreme Court is entitled to decide, but no one believes that
the Court always decides correctly. As Supreme Court Justice Robert
Jackson once quipped, “We are not final because we are infallible,
but we are infallible only because we are final”
6
– which is of course
to say that the Court is not really infallible at all. The Court’s deci-
sion in Bush v. Gore did not settle whether its ruling was the right
one or whether it thought about the contested issues in the proper
way, even though everyone (or nearly everyone) agreed that its ruling
had to be obeyed. Even after the Court speaks, constitutional debate
properly goes on, as the American people judge the performance of
the Supreme Court under the Constitution.
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Introduction: The Dynamic Constitution
[O]ur Constitution . . . is an experiment, as all life is an experiment.
– Justice Oliver Wendell Holmes, Jr.
1
Although the constitution of the united states is a sin-