Introduction, xix
Acknowledgments, xxv
The Declaration of Independence, xxvii
The Constitution of the United States, xxxi
Supreme Court Justices, xlix
CHAPTER ONE
THE DECLARATION AND ITS
CONSTITUTION--LINKING FIRST PRINCIPLE TO NECESSARY
MEANS, 1
A. The Constitution -- Means or End?, 1
B. The Common Law and the Natural Law, 1
C. The Declaration of Independence -- A Summary of
American Fundamental Principle, 8
1. The Declaration and the Formation of the Constitution,
10
2. The Written Constitution -- A Substitute For the
Declaration?, 15
3. The Bill of Rights Introduced: Unenumerated Natural
Law Rights Preserved, 29
4. Natural Law in the Early Supreme Court, 35
5. The Declaration, Natural Law, and the Modern Court, 44
CHAPTER TWO
A GOVERNMENT RESPECTFUL OF
INDIVIDUAL CONSCIENCE, 55
A. The Special Significance of Preferred Religious
Freedom, 55
B. The Public Affirmation of God and the Importance of
Religion, 56
1. Pre-Founding; Colonial America, 56
2. At the Founding, 56
3. Early Establishment Clause Interpretation -- America as a
"Religious People" Assumed, 69
4. Incorporation of the Religion Clauses Against the
States, 73
C. Public Neutrality Toward God and Religion, 78
1. Modern Judicial Application of the No Establishment
Principle, 79
2. The Special Context of the Private, Religious School,
139
3. School Prayer, 172
D. The Free Exercise Clause -- Government May Not
Prohibit Religious Expression, 190
1. Distinguishing Between Religious Belief and Religious
Practice, 190
2. Judicial Inquiry Into the Sincerity, But Not the
Validity, of Religious Belief, 209
3. More Than Theism, But How Much More?, 213
4. Prohibitions or Burdens?, 218
5. No Religious Exemption from Neutral, Generally Applicable
Laws, 230
CHAPTER THREE
A FAIR GOVERNMENT, 251
I. The Substantive Protection of Vested Rights, 251
A. The Protection of Contract Against State Impairment,
251
1. The Precipitating Hardship, 251
2. Debate in Convention, 252
3. Post-Convention Justification, 254
4. Judicial Application, 257
B. The Protection of Property, 291
1. Historical and Philosophical Justification, 291
2. Regulatory Takings and the Supreme Court, 301
II. Procedural Due Process, 326
A. What Constitutes State Action?, 326
B. What Constitutes "Life, Liberty or Property"?, 363
C. What Process Is Due?, 373
CHAPTER FOUR
A GOVERNMENT COMMITMENT TO
FREEDOM, 407
A. First Amendment Speech, 407
1. Prior Restraint and Criticism of the Government, 407
2. What Constitutes a "Public Forum"?, 424
3. The Impermissibility of Content and Viewpoint
Discrimination by the Government, 434
4. Qualified Speech Protection, 458
5. Do Actions Speak as Loud as Words? -- Expressive Conduct
and the First Amendment, 485
6. Special Contexts, 540
B. Economic Liberty, 604
1. Privileges and Immunities, 604
2. Privileges or Immunities, 617
3. Substantive Economic Due Process, 653
CHAPTER FIVE
A GOVERNMENT COMMITMENT TO
EQUALITY, 681
A. Race, 683
1. Slavery, 683
2. Civil Rights and Non-Discrimination, 697
3. Vestiges of Discrimination -- The Difficulty of Past
Racial Effect, 710
4. Proving Discriminatory Intent, 728
5. Civil Right or Preference?, 743
B. Numerical Equality -- One Person/One Vote, 807
C. Gender, 852
D. Sexual Orientation, 879
CHAPTER SIX
A GOVERNMENT OF IMPERFECT KNOWLEDGE
-- OF INKBLOTS, LIBERTY AND LIFE ITSELF, 889
A. Natural Law Echoes -- Parental and Family Rights, 894
1. Directing the Upbringing of Children, 894
2. Family-Related Rights Beyond Parenting, 909
B. The Ninth Amendment -- A Right of Privacy?, 928
1. Contraception, 928
2. Abortion, 949
3. Assisted Suicide, 1019
4. Homosexual Conduct, 1040
Table of Cases, TC-1
Tables of Articles Cited, TA-1
Index, I-1
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