The index that appeared in the print version of this title was intentionally removed from the eBook. Please use the search function on your eReading device to search for terms of interest. For your reference, the terms that appear in the print index are listed below.
agency theory of government
aggregate affects principle
Alien and Sedition Acts
amendments: Ackerman’s theory of unwritten; importance of requiring written
among the several states, original meaning of
Anti-Federalists
Bedford proposal
benefits received. See fair play, principle of
Bill of Rights, the: Federalists’ objections to; impropriety of violating; judicial protection of; nature of rights protected by; penumbras formed by emanations from; protected by the Privileges or Immunities Clause; rebuts presumption of constitutionality, types of rights included in
Brandeis briefs
checks and balances
civil rights
Civil Rights Act of
Civil War
commerce, original meaning of
Commerce Clause
communitarianism
consent: acquiescence does not equal; “bootstrapping objection” to tacit; failure to amend the Constitution does not equal; failure to revolt does not equal; of the founders; freedom and; to governance; of the governed; of the governors; hypothetical; “love it or leave it” version of; majoritarian; oath taking and; residency does not equal, tacit; and territorial jurisdiction; unanimous; voting does not equal
Constitution, the: binds government, not the people
construction: distinction between interpretation and; examples of; is guided by the principles revealed by interpretation; and legitimacy; is needed to address vagueness
delegated powers: agency theory and; retained rights reconciled with
democracy. See majoritarianism
democratic majoritarianism. See majoritarianism
divine right
Due Process Clauses
duty of fair play. See fair play, principle of
Eighteenth Amendment
enumerated powers
Equal Protection Clause
exceptions
exclusionary rule
executive power. See police power
exit: cost of; right of
faction, the problem of
fair play, principle of: and the duty to obey the law; Nozick on; and the opportunity to refuse benefits; requires acceptance by participants; Simmons on; slavery and
federalism
Federalist Society, the
Federalists
fiction of the People
Fifteenth Amendment
Footnote Four
Fourteenth Amendment, See also Due Process Clauses; Equal Protection Clause; police power; Privileges or Immunities Clause
freedom of speech
fundamental rights
Guarantee Clause
herpes theory of interstate commerce
House of Representatives, the
intercourse, original meaning of
interpretation: distinguished from construction; is needed to resolve ambiguity; and the underdeterminacy of words, See also originalism
Jim Crow
judges: the duty of obedience of
judicial conservatives
judicial nullification
Judicial Power, the
judicial review
judicial supremacy
jury nullification
law: as enterprise of subjecting conduct to rules; of the land; meaning of; validity of
legislative supremacy
legitimacy, constitutional; and the Commerce Clause; without consent; and constitutional construction; and the duty to obey the law; and enumerated powers; and judicial review; meaning of; and the necessity of a law; and original meaning interpretation; and the protection of unenumerated rights
Leisure World
letters of marque and reprisal
Levellers, the
levels of scrutiny
liberalism
liberty: as bounded freedom; distinguished from license; of innocent delights; interests v. fundamental rights; protected rather than privacy; regulation is not inconsistent with
majoritarianism
national bank, constitutionality of a
National Recovery Act
natural rights: are abstract; are not based on atomistic individualism; delegating to government the protection of; are derived from “given-if-then” reasoning; and the duty to obey the law; exchanging civil rights for; existence of consensus for; historical understanding of; also called “human,” “inherent,” and “background” rights; impose positive and negative duties on others; are justified; are liberty rights; are limitless and unenumerable; and morality contrasted; natural law distinguished from; natural right distinguished from; the police power of states derives from; and popular sovereignty; are not presocial; regulation of; “retained” rights are a reference to; are a social concept; solve pervasive problems; surrendering
necessary, original meaning of
necessary and proper
Necessary and Proper Clause
necessity, judicial doctrines to assess
Ninth Amendment, the: may authorize supplementing text; Robert Bork’s confirmation testimony about; Justice Goldberg’s use of; how I came to study; how the Privileges or Immunities Clause relates to; is inconsistent with Footnote Four; judicial conservatives and; original meaning of; original meaning of rights “retained by the people” in; replies to skeptics of enforcing; does not refer to state law rights
nullification. See judicial review
originalism: criticisms of; and the “dead hand” of the past; functions of formality and; legitimacy argues for; limits of; moderate; and natural rights; is needed to constrain power of lawmakers; is needed for “lock in”; original meaning vs. original intent; practicality of; protecting unenumerated rights by means of; reasoning of Marbury argues for; responses to criticisms of; semantic vs. expectations; similarity of contractual interpretation to; and textualism, writtenness and
parol evidence rule
Pennsylvania Gazette
People, the fiction of the
police power
political question doctrine
polycentric constitutional order
popular sovereignty
Preamble, the
presumption of constitutionality: is a construction; history of; is incompatible with Ninth Amendment
Presumption of Liberty
privacy. See unenumerated right(s): of privacy
Privileges and Immunities Clause of Art.
Privileges or Immunities Clause of Fourteenth Amendment: may authorize supplementing text; compared with Privileges and Immunities Clause; Due Process Clause contrasted with; is inconsistent with Footnote Four; was gutted by The Slaughter-House Cases; and original meaning of “privileges or immunities”; origins of; “privileges or immunities” are broader than natural rights; requires limits on state power; wording of
Progressive Era, the
prohibition, distinguished from regulation
proper, original meaning of
rational basis review
regulate, original meaning of
regulation
republican form of government
republicanism
Right. See unenumerated right(s)
rights: consensus for liberty; hypothetical consent and the importance of; inalienable; as justified claims; natural (see natural rights); regulating the exercise of; to withhold one’s consent
rules of recognition
Second Amendment, the
Senate, the
separation of powers
Seventeenth Amendment
shall, original meaning of
Sixteenth Amendment
slavery
Social Statics
socialism
sovereignty
speech. See freedom of speech
state of nature
States, the: founders’ objections to legislatures of; Fourteenth Amendment limits powers of; the police power of
Statute of Frauds, the
Takings Clause
Tenth Amendment
unenumerated right(s): are not absolute; to associate with others, to choose and follow a profession; to decide how to rear ones children; to decide whether to have children; to educate children in one’s native language; equal treatment of; to marry or not marry; methods of protecting; of privacy; to provide children with religious education; to travel
“We the People,” the fiction of