This publication supplements Senate Document 108–17, The Constitution of the 

United States of America: Analysis and Interpretation—it should be inserted 

into the pocket on the inside back cover of that volume 

110TH CONGRESS DOCUMENT " SENATE ! 1st Session No. 110–6 

THE CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA 

ANALYSIS AND INTERPRETATION 

2006 SUPPLEMENT 

ANALYSIS OF CASES DECIDED BY THE SUPREME 

COURT OF THE UNITED STATES TO JUNE 29, 2006 

PREPARED BY THE

CONGRESSIONAL RESEARCH SERVICE

LIBRARY OF CONGRESS

KENNETH R. THOMAS

EDITOR-IN-CHIEF

HENRY COHEN

MANAGING EDITOR

JOHNNY H. KILLIAN

EDITOR EMERITUS

U.S. GOVERNMENT PRINTING OFFICE 

35–687 WASHINGTON : 2007 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 

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1 

1See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. 

ed. 1937), 301-302, 304-305; 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES § 889, at 335 (1833). 2Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why 

Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005). 

ARTICLE I 

Section 2. House of Representatives 

Clause 1. Congressional Districting 

CONGRESSIONAL DISTRICTING 

[P. 112, add to n.299:] 

Vieth v. Jubelirer, 541 U.S. 267 (2004) (same); League of United Latin American 

Citizens v. Perry, 126 S. Ct. 2594 (2006). Additional discussion of this issue appears 

under Amendment 14, The New Equal Protection, Apportionment and Districting. 

Section 7. Bills and Resolutions 

Clause 3. Presentation of Resolutions 

THE LEGISLATIVE PROCESSδ 

Presentation of Resolutions 

[Pp. 148-49, substitute for entire section:] 

The purpose of clause 3, the Orders, Resolutions, and Votes 

Clause (ORV Clause), is not readily apparent. For years it was assumed that the Framers inserted the clause to prevent Congress 

from evading the veto clause by designating as something other 

than a bill measures intended to take effect as laws.1 Why a separate clause was needed for this purpose has not been explained. Recent scholarship presents a different possible explanation for the 

ORV Clause — that it was designed to authorize delegation of lawmaking power to a single House, subject to presentment, veto, and 

possible two-House veto override.2 If construed literally, the clause 

could have bogged down the intermediate stages of the legislative 

process, and Congress made practical adjustments. At the request 

of the Senate, the Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted 

over the years. Briefly, it was shown that the word ‘‘necessary’’ in 

the clause had come to refer to the necessity for law-making; that 

is, any ‘‘order, resolution, or vote’’ must be submitted if it is to have 

the force of law. But ‘‘votes’’ taken in either House preliminary to 

the final passage of legislation need not be submitted to the other 

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2 ARTICLE I—LEGISLATIVE DEPARTMENT 

3S. REP. NO. 1335, 54th Congress, 2d Sess.; 4 HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES § 3483 (1907). 4 3 U.S. (3 Dall.) 378 (1798). 

5 Although Hollingsworth did not necessarily so hold (see Tillman, supra), the 

Court has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229 

(1920) (in Hollingsworth ‘‘this court settled that the submission of a constitutional 

amendment did not require the action of the President’’); INS v. Chadha, 462 U.S. 

919, 955 n.21 (1983) (in Hollingsworth the Court ‘‘held Presidential approval was 

unnecessary for a proposed constitutional amendment’’). 6Sabri v. United States, 541 U.S. 600, 605 (2004). 

7 541 U.S. at 606. 

House or to the President, nor must concurrent resolutions merely 

expressing the views or ‘‘sense’’ of the Congress.3

Although the ORV Clause excepts only adjournment resolutions and makes no explicit reference to resolutions proposing constitutional amendments, the practice and understanding, beginning 

with the Bill of Rights, have been that resolutions proposing constitutional amendments need not be presented to the President for 

veto or approval. Hollingsworth v. Virginia,4 in which the Court rejected a challenge to the validity of the Eleventh Amendment based 

on the assertion that it had not been presented to the President, 

is usually cited for the proposition that presentation of constitutional amendment resolutions is not required.5

Section 8. Powers of Congress 

Clause 1. Power to Tax and Spend 

SPENDING FOR THE GENERAL WELFARE 

Scope of the Power 

[P. 164, add new paragraph at end of section:] 

As with its other powers, Congress may enact legislation ‘‘necessary and proper’’ to effectuate its purposes in taxing and spending. In upholding a law making it a crime to bribe state and local 

officials who administer programs that receive federal funds, the 

Court declared that Congress has authority ‘‘to see to it that taxpayer dollars . . . are in fact spent for the general welfare, and not 

frittered away in graft or on projects undermined when funds are 

siphoned off or corrupt public officers are derelict about demanding 

value for dollars.’’ 6 Congress’ failure to require proof of a direct 

connection between the bribery and the federal funds was permissible, the Court concluded, because ‘‘corruption does not have to be 

that limited to affect the federal interest. Money is fungible, bribed 

officials are untrustworthy stewards of federal funds, and corrupt 

contractors do not deliver dollar-for-dollar value.’’ 7

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8See, e.g., United States v. Darby, 312 U.S. 100, 115-16 (1941). 

—Conditional Grants-in-Aid 

[P. 165, add to n.603:] 

This is not to say that Congress may police the effectiveness of its spending only 

by means of attaching conditions to grants; Congress may also rely on criminal 

sanctions to penalize graft and corruption that may impede its purposes in spending 

programs. Sabri v. United States, 541 U.S. 600 (2004). 

[P. 166, add to n.608:] 

Arlington Central School Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455 (2006) (because Individuals with Disabilities Education Act, which was enacted pursuant to 

the Spending Clause, does not furnish clear notice to states that prevailing parents 

may recover fees for services rendered by experts in IDEA actions, it does not authorize recovery of such fees). 

Clause 3. Commerce Power 

POWER TO REGULATE COMMERCE 

Definition of Terms 

—Necessary and Proper Clause 

[P. 175, add to n.665:] 

Gonzales v. Raich, 125 S. Ct. 2195 (2005). 

[P. 175, add to text after n.665:] 

In other cases, the clause may not have been directly cited, but the 

dictates of Chief Justice Marshall have been used to justify more 

expansive applications of the commerce power.8

THE COMMERCE CLAUSE AS A SOURCE OF NATIONAL 

POLICE POWER 

Is There an Intrastate Barrier to Congress’ Commerce Power. 

[P. 212, substitute for second paragraph of section:] 

Congress’ commerce power has been characterized as having 

three, or sometimes four, very interrelated principles of decision, 

some old, some of recent vintage. The Court in 1995 described 

‘‘three broad categories of activity that Congress may regulate 

under its commerce power. First, Congress may regulate the use of 

the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate 

commerce, or persons or things in interstate commerce, even 

though the threat may come only from intrastate activities. Finally, 

Congress’ commerce authority includes the power to regulate those 

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9 United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted). Illustrative of the power to legislate to protect the channels and instrumentalities of 

interstate commerce is Pierce County v. Guillen, 537 U.S. 129, 147 (2003), in which 

the Court upheld a prohibition on the use in state or federal court proceedings of 

highway data required to be collected by states on the basis that ‘‘Congress could 

reasonably believe that adopting a measure eliminating an unforeseen side effect of 

the information-gathering requirement . . . would result in more diligent efforts [by 

states] to collect the relevant information.’’ 10 125 S. Ct. 2195 (2005). 11 84 Stat. 1242, 21 U.S.C. §§ 801 et seq. 12 125 S. Ct. at 2206-09. 13 125 S. Ct. at 2211, quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 720 (1966). 

activities having a substantial relation to interstate commerce, i.e., 

those activities that substantially affect interstate commerce.’’ 9

[P. 218, add to text at end of section:] 

Yet, the ultimate impact of these cases on the Congress’ power 

over commerce may be limited. In Gonzales v. Raich,10 the Court 

reaffirmed an expansive application of Wickard v. Filburn, and signaled that its jurisprudence is unlikely to threaten the enforcement 

of broad regulatory schemes based on the Commerce Clause. In 

Raich, the Court considered whether the cultivation, distribution, 

or possession of marijuana for personal medical purposes pursuant 

to the California Compassionate Use Act of 1996 could be prosecuted under the federal Controlled Substances Act (CSA).11 The 

respondents argued that this class of activities should be considered as separate and distinct from the drug-trafficking that was 

the focus of the CSA, and that regulation of this limited non-commercial use of marijuana should be evaluated separately. 

In Raich, the Court declined the invitation to apply the dictates of Lopez and Morrison to select applications of a statute, holding that the Court would defer to Congress if there was a rational 

basis to believe that regulation of home-consumed marijuana would 

affect the market for marijuana generally. The Court found that 

there was a rational basis to believe that diversion of medicinal 

marijuana into the illegal market would depress the price on the 

latter market.12 The Court also had little trouble finding that, even 

in application to medicinal marijuana, the CSA was an economic 

regulation. Noting that the definition of ‘‘economics’’ includes ‘‘the 

production, distribution, and consumption of commodities,’’ 13 the 

Court found that prohibiting the intrastate possession or manufacture of an article of commerce is a rational and commonly used 

means of regulating commerce in that product. 

The Court’s decision also contained an intertwined but potentially separate argument that the Congress had ample authority 

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14 125 S. Ct. at 2206, 2210, 2211 15 125 S. Ct. at 2206-09. 16 125 S. Ct. at 2216 (Scalia, J., concurring). 17The Court had developed the ‘‘original package’’ doctrine to restrict application of a state tax on imports from a foreign country in Brown v. Maryland, 25 U.S. 

(12 Wheat.) 419, 449 (1827). Although Chief Justice Marshall had indicated in dictum in Brown that the same rule would apply to imports from sister states, the 

Court had refused to follow that dictum in Woodruff v. Parham, 75 U.S. (8 Wall.) 

123 (1869). 18Mugler v. Kansas, 123 U.S. 623 (1887). Relying on the distinction between 

manufacture and commerce, the Court soon applied this ruling to authorize states 

to prohibit manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128 

U.S. 1 (1888). 19 125 U.S. 465 (1888) 

under the Necessary and Proper Clause to regulate the intrastate 

manufacture and possession of controlled substances, because failure to regulate these activities would undercut the ability of the 

government to enforce the CSA generally.14 The Court quotes language from Lopez that appears to authorize the regulation of such 

activities on the basis that they are an essential part of a regulatory scheme.15 Justice Scalia, in concurrence, suggests that this 

latter category of activities could be regulated under the Necessary 

and Proper Clause regardless of whether the activity in question 

was economic or whether it substantially affected interstate commerce.16

[P. 217, add to n.883:] 

Lopez did not ‘‘purport to announce a new rule governing Congress’ Commerce 

Clause power over concededly economic activity.’’ Citizens Bank v. Alafabco, Inc., 

539 U.S. 52, 58 (2003). 

THE COMMERCE CLAUSE AS A RESTRAINT ON STATE 

POWERS 

Doctrinal Background 

—Congressional Authorization of Impermissible State Action 

[Pp. 228-229, substitute for second paragraph of section:] 

The Court applied the ‘‘original package’’ doctrine to interstate 

commerce in intoxicants, which the Court denominated ‘‘legitimate 

articles of commerce.’’ 17 Although holding that a state was entitled 

to prohibit the manufacture and sale of intoxicants within its 

boundaries, 18 it contemporaneously laid down the rule, in Bowman 

v. Chicago & Northwestern Ry. Co., 19 that, so long as Congress remained silent in the matter, a state lacked the power, even as part 

and parcel of a program of statewide prohibition of the traffic in 

intoxicants, to prevent the importation of liquor from a sister state. 

This holding was soon followed by another to the effect that, so 

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20Leisy v. Hardin, 135 U.S. 100 (1890). 21 Ch. 728, 26 Stat. 313 (1890), upheld in In re Rahrer, 140 U.S. 545 (1891). 22 Rhodes v. Iowa, 170 U.S. 412 (1898). 23 Ch. 90, 37 Stat. 699 (1913), sustained in Clark Distilling Co. v. Western Md. 

Ry., 242 U.S. 311 (1917). See also Department of Revenue v. Beam Distillers, 377 

U.S. 341 (1964). 24Granholm v. Heald, 544 U.S. 460, 487 (2005). See also Bacchus Imports Ltd. 

v. Dias, 468 U.S. 263 (1984); Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986); Healy v. The Beer Institute, 491 U.S. 324 (1989), 

and the analysis of section 2 under Discrimination Between Domestic and Imported 

Products. 

long as Congress remained silent, a state had no power to prevent 

the sale in the original package of liquors introduced from another 

state.20 Congress soon attempted to overcome the effect of the latter decision by enacting the Wilson Act,21 which empowered states 

to regulate imported liquor on the same terms as domestically produced liquor, but the Court interpreted the law narrowly as subjecting imported liquor to local authority only after its resale.22

Congress did not fully nullify the Bowman case until 1913, when 

it enacted of the Webb-Kenyon Act 23 which clearly authorized 

states to regulate direct shipments for personal use. 

National Prohibition, imposed by the Eighteenth Amendment, 

temporarily mooted these conflicts, but they reemerged with repeal 

of Prohibition by the Twenty-first Amendment. Section 2 of the 

Twenty-first Amendment prohibits ‘‘the importation into any State 

. . . for delivery or use therein of intoxicating liquors, in violation 

of the laws thereof.’’ Initially the Court interpreted this language 

to authorize states to discriminate against imported liquor in favor 

of that produced in-state, but the modern Court has rejected this 

interpretation, holding instead that ‘‘state regulation of alcohol is 

limited by the nondiscrimination principle of the Commerce 

Clause.’’ 24

[P. 231, add to n.954 after initial citation:] 

See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003) (authorization of state laws 

regulating milk solids does not authorize milk pricing and pooling laws). 

State Taxation and Regulation: The Modern Law 

—Taxation 

[P. 246, add to n.1038:] 

But see American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 125 S. Ct. 2419 

(2005), upholding imposition of a flat annual fee on all trucks engaged in intrastate 

hauling (including trucks engaged in interstate hauling that ‘‘top off’’ loads with 

intrastate pickups and deliveries) and concluding that levying the fee on a per-truck 

rather than per-mile basis was permissible in view of the objectives of defraying 

costs of administering various size, weight, safety, and insurance requirements. 

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25 Reliance could not be placed on Executive statements, the Court explained, 

since ‘‘the Constitution expressly grants Congress, not the President, the power to 

‘regulate Commerce with foreign Nations.’’ 512 U.S. at 329. ‘‘Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide combined reporting.’’ Id. at 330. Dissenting Justice Scalia noted that, although 

the Court’s ruling correctly restored preemptive power to Congress, ‘‘it permits the 

authority to be exercised by silence.’’ Id. at 332. 26The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139- 

49 (1993). 

—Regulation 

[P. 249, add to n.1051:] 

But cf. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003) 

(state prescription drug program providing rebates to participating companies does 

not regulate prices of out-of-state transactions and does not favor in-state over outof-state companies). 

Foreign Commerce and State Powers 

[P. 256, substitute for last two sentences of first full paragraph:] 

The tax, it was found, did not impair federal uniformity or prevent 

the Federal Government from speaking with one voice in international trade, in view of the fact that Congress had rejected proposals that would have preempted California’s practice.25 The result of the case, perhaps intended, is that foreign corporations have 

less protection under the negative commerce clause.26

CONCURRENT FEDERAL AND STATE JURISDICTION 

The General Issue: Preemption 

—The Standards Applied 

[P. 262, add to n.1109:] 

Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit brought against HMO under 

state health care liability act for failure to exercise ordinary care when denying benefits is preempted). 

[P. 265, add to n.1118:] 

But cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (interpreting preemption 

language and saving clause in Federal Boat Safety Act as not precluding a state 

common law tort action). 

[P. 266, add footnote at end of second line of text on the page:] 

For a more recent decision applying express preemption language to a variety of 

state common law claims, see Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) 

(interpreting FIFRA, the federal law governing pesticides). 

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27Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 28 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America 

v. Universal City Studios, 464 U.S. 417, 429 (1984)). 29 537 U.S. at 204. 

COMMERCE WITH INDIAN TRIBES 

[P. 278, add to n.1189:] 

United States v. Lara, 541 U.S. 193, 200 (2004). 

[P. 281, add to n.1206:] 

Congress may also remove restrictions on tribal sovereignty. The Court has held 

that, absent authority from federal statute or treaty, tribes possess no criminal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 

The Court also held, in Duro v. Reina, 495 U.S. 676 (1990), that a tribe has no 

criminal jurisdiction over non-tribal Indians who commit crimes on the reservation; 

jurisdiction over members rests on consent of the self-governed, and absence of consent defeats jurisdiction. Congress, however, quickly enacted a statute recognizing 

inherent authority of tribal governments to exercise criminal jurisdiction over nonmember Indians, and the Court upheld congressional authority to do so in United 

States v. Lara, 541 U.S. 193 (2004). 

Clause 8. Copyrights and Patents 

Scope of the Power 

[P. 312, substitute for sentence ending with n.1421:] 

These English statutes curtailed the royal prerogative in the creation and bestowal of monopolistic privileges, and the Copyright 

and Patent Clause similarly curtails congressional power with regard both to subject matter and to the purpose and duration of the 

rights granted.27

[P. 313, convert final sentence of paragraph to a separate paragraph 

and place it after the following new paragraph to be added at end 

of section:] 

The constitutional limits, however, do not prevent the Court 

from being highly deferential to congressional exercise of its power. 

‘‘It is Congress that has been assigned the task of defining the 

scope of the limited monopoly that should be granted to authors,’’ 

the Court has said.28 ‘‘Satisfied’’ in Eldred v. Ashcroft that the 

Copyright Term Extension Act did not violate the ‘‘limited times’’ 

prescription, the Court saw the only remaining question as whether the enactment was ‘‘a rational exercise of the legislative authority conferred by the Copyright Clause.’’ 29 The Act, the Court concluded, ‘‘reflects judgments of a kind Congress typically makes, 

judgments we cannot dismiss as outside the Legislature’s domain.’’ 

Moreover, the limitation on the duration of copyrights and patents 

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30The Court in Eldred upheld extension of the term of existing copyrights from 

life of the author plus 50 years to life of the author plus 70 years. Although the 

more general issue was not raised, the Court opined that this length of time, extendable by Congress, was ‘‘clearly’’ not a regime of ‘‘perpetual’’ copyrights. The only 

two dissenting Justices, Stevens and Breyer, challenged this assertion. 31 Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S. 

(14 How.) 539, 548 (1852); Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864); 

Eunson v. Dodge, 85 U.S. (18 Wall.) 414, 416 (1873). 32 33 U.S. (8 Pet.) 591 (1834). 33 33 U.S. (8 Pet.) at 595. 34 33 U.S. (8 Pet.) at 667. 35 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine 

of common-law copyright was long statutorily preserved for unpublished works, but 

the 1976 revision of the federal copyright law abrogated the distinction between 

published and unpublished works, substituting a single federal system for that existing since the first copyright law in 1790. 17 U.S.C. § 301. 36 33 U.S. (8 Pet.) at 661. 

yond the life of the author or inventor.30 Congress may extend the 

duration of existing copyrights and patents, and in so doing may 

protect the rights of purchasers and assignees.31

Nature and Scope of the Right Secured 

[P. 316, substitute for first paragraph of section:] 

The leading case on the nature of the rights that Congress is 

authorized to ‘‘secure’’ under the Copyright and Patent Clause is 

Wheaton v. Peters.32 Wheaton was the official reporter for the Supreme Court from 1816 to 1827, and Peters was his successor in 

that role. Wheaton charged Peters with having infringed his copyright in the twelve volumes of ‘‘Wheaton’s Reports’’ by reprinting 

material from Wheaton’s first volume in ‘‘a volume called ‘Condensed Reports of Cases in the Supreme Court of the United 

States’’’; 33 Wheaton based his claim on both common law and a 

1790 act of Congress. On the statutory claim, the Court remanded 

to the trial court for a determination of whether Wheaton had complied with all the requirements of the act.34 On the common law 

claim, the Court held for Peters, finding that, under common law, 

publication divests an author of copyright protection. Wheaton argued that the Constitution should be held to protect his common 

law copyright, because ‘‘the word secure . . . clearly indicates an intention, not to originate a right, but to protect one already in existence.’’ 35 The Court found, however, that ‘‘the word secure, as used 

in the constitution, could not mean the protection of an acknowledged legal right,’’ but was used ‘‘in reference to a future right.’’ 36

Thus, the exclusive right that the Constitution authorizes Congress 

to ‘‘secure’’ to authors and inventors owes its existence solely to 

acts of Congress that secure it, from which it follows that the 

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37 33 U.S. (8 Pet.) at 662; Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815). A major 

limitation of copyright law is that ‘‘fair use’’ of a copyrighted work is not an infringement. Fair use can involve such things as quotation for the use of criticism and reproduction for classroom purposes, but it may not supersede the use of the original 

work. See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an 

unauthorized 300- to 400-word excerpt, published as a news ‘‘scoop’’ of the authorized prepublication excerpt of former President Ford’s memoirs and substantially affecting the potential market for the authorized version, was not a fair use within 

the meaning of § 107 of the Copyright Act. 17 U.S.C. § 107). For fair use in the 

context of a song parody, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 

(1994). 38 Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 (2006). But see, id. at 2773 (‘‘Exigency alone, of course, will not justify the establishment and use of penal tribunals 

not contemplated by Article I, § 8 and Article III, § 1 of the Constitution unless 

some other part of that document authorizes a response to the felt need.’’). 39 17 U.S. (4 Wheat.) 316 (1819). 

rights granted by a patent or copyright are subject to such qualifications and limitations as Congress sees fit to impose.37

[P. 317, add to n.1448:] 

Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) (active 

encouragement of infringement by distribution of software for sharing of copyrighted 

music and video files can constitute infringement). 

Clauses 11, 12, 13, and 14. War; Military Establishment 

CONSTITUTIONAL RIGHTS IN WARTIME 

The Constitution at Home in Wartime 

—Enemy Aliens 

[P. 347, add to text at end of section:] 

Because this use of military tribunals was sanctioned by Congress, 

the Court found it unnecessary to decide whether ‘‘the President 

may constitutionally convene military commissions ‘without the 

sanction of Congress’ in cases of ‘controlling necessity.’’’ 38

Clause 18. Necessary and Proper Clause 

Scope of Incidental Powers 

[P. 357, substitute for first sentence of section:] 

The Necessary and Proper Clause, sometimes called the ‘‘coefficient’’ or ‘‘elastic’’ clause, is an enlargement, not a constriction, of 

the powers expressly granted to Congress. Chief Justice Marshall’s 

classic opinion in McCulloch v. Maryland 39 set the standard in 

words that reverberate to this day. 

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40 Jinks v. Richland County, 538 U.S. 456 (2003). 41 538 U.S. 84 (2003). 42 538 U.S. at 92. 43The law’s requirements do not closely resemble punishments of public disgrace imposed in colonial times; the stigma of Megan’s Law results not from public 

shaming but from the dissemination of information about a criminal record, most 

of which is already public. 538 U.S. at 98. 

Operation of Clause 

[P. 358, add to n.1734:] 

Congress may also legislate to protect its spending power. Sabri v. United States, 

541 U.S. 600 (2004) (upholding imposition of criminal penalties for bribery of state 

and local officials administering programs receiving federal funds). 

Courts and Judicial Proceedings 

[P. 361, add clause in text after n.1759:] 

may require the tolling of a state statute of limitations while a 

state cause of action that is supplemental to a federal claim is 

pending in federal court,40

Section 10 — Powers Denied to States 

Clause 1. Making Treaties, Coining Money, Ex Post Facto Laws, Impairing Contracts 

Ex Post Facto Laws 

—Scope of the Provision 

[P. 382, add to text after n.1912:] 

Distinguishing between civil and penal laws was at the heart 

of the Court’s decision in Smith v. Doe 41 upholding application of 

Alaska’s ‘‘Megan’s Law’’ to sex offenders who were convicted before 

the law’s enactment. The Alaska law requires released sex offenders to register with local police and also provides for public notification via the Internet. The Court accords ‘‘considerable deference’’ to 

legislative intent; if the legislature’s purpose was to enact a civil 

regulatory scheme, then the law can be ex post facto only if there 

is ‘‘the clearest proof’’ of punitive effect.42 Here, the Court determined, the legislative intent was civil and non-punitive — to promote public safety by ‘‘protecting the public from sex offenders.’’ 

The Court then identified several ‘‘useful guideposts’’ to aid analysis of whether a law intended to be non-punitive nonetheless has 

punitive effect. Registration and public notification of sex offenders 

are of recent origin, and are not viewed as a ‘‘traditional means of 

punishment.’’ 43 The Act does not subject the registrants to an ‘‘affirmative disability or restraint’’; there is no physical restraint or 

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44 538 U.S. at 102. 45 Excessiveness was alleged to stem both from the law’s duration (15 years of 

notification by those convicted of less serious offenses; lifetime registration by serious offenders) and in terms of the widespread (Internet) distribution of the information. 46 538 U.S. at 105. Unlike involuntary civil commitment, where the ‘‘magnitude 

of restraint [makes] individual assessment appropriate,’’ the state may make ‘‘reasonable categorical judgments,’’ and need not provide individualized determinations 

of dangerousness. Id. at 103. 47 3 U.S. (3 Dall.) 386, 389 (1798). 48 539 U.S. 607, 632-33 (2003) (invalidating application of California’s law to revive child abuse charges 22 years after the limitations period had run for the alleged crimes). 

occupational disbarment, and there is no restraint or supervision of 

living conditions, as there can be under conditions of probation. 

The fact that the law might deter future crimes does not make it 

punitive. All that is required, the Court explained, is a rational 

connection to a non-punitive purpose, and the statute need not be 

narrowly tailored to that end.44 Nor is the act ‘‘excessive’’ in relation to its regulatory purpose.45 Rather, ‘‘the means chosen are 

‘reasonable’ in light of the [state’s] non-punitive objective’’ of promoting public safety by giving its citizens information about former 

sex offenders, who, as a group, have an alarmingly high rate of recidivism.46

—Changes in Punishment 

[P. 383, substitute for first sentence of section:] 

Justice Chase in Calder v. Bull gave an alternative description 

of the four categories of ex post facto laws, two of which related to 

punishment. One such category was laws that inflict punishment 

‘‘where the party was not, by law, liable to any punishment’’; the 

other was laws that inflict greater punishment than was authorized when the crime was committed.47

Illustrative of the first of these punishment categories is ‘‘a law 

enacted after expiration of a previously applicable statute of limitations period [as] applied to revive a previously time-barred prosecution.’’ Such a law, the Court ruled in Stogner v. California,48 is prohibited as ex post facto. Courts that had upheld extension of unexpired statutes of limitation had been careful to distinguish situations in which the limitations periods have expired. The Court 

viewed revival of criminal liability after the law had granted a person ‘‘effective amnesty’’ as being ‘‘unfair’’ in the sense addressed by 

the Ex Post Facto Clause. 

Illustrative of the second punishment category are statutes 

that changed an indeterminate sentence law to require a judge to 

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ARTICLE I—LEGISLATIVE DEPARTMENT 13 

49Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of 

Lindsey in Dobbert v. Florida, 432 U.S. 282, 298-301 (1977). 50 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 51Medley, Petitioner, 134 U.S. 160, 171 (1890). 

impose the maximum sentence,49 that required solitary confinement for prisoners previously sentenced to death,50 and that allowed a warden to fix, within limits of one week, and keep secret 

the time of execution.51

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15 

1Pub. L. 107-40, 115 Stat. 224 (2001). 

2 Hamdi v. Rumsfeld, 542 U.S. 507 (2004). There was no opinion of the Court. 

Justice O’Connor, joined by Chief Justice Rehnquist, Justice Kennedy and Justice 

ARTICLE II 

Section 1. The President 

Clause 1. Powers and Term of the President. 

NATURE AND SCOPE OF PRESIDENTIAL POWER 

—The Youngstown Case 

[P. 442, add to n.40:] 

And, in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 n.23 (2006), the Court cited 

Youngstown with approval, as did Justice Kennedy, in a concurring opinion joined 

by three other Justices, id. at 2800. 

Section 2. Powers and Duties of the President 

Clause 1. Commander-in-Chiefship; Presidential Advisers; Pardons 

COMMANDER-IN-CHIEF 

Martial Law and Constitutional Limitations 

[P. 483, add new section after ‘‘Articles of War: World War II 

Crimes’’:] 

—Articles of War: Response to the Attacks of September 11, 2001 

In response to the September 11, 2001 terrorist attacks on 

New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the Authorization for Use of Military 

Force,1 which provided that the President may use ‘‘all necessary 

and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the 

terrorist attacks [or] harbored such organizations or persons.’’ During a military action in Afghanistan pursuant to this authorization, 

a United States citizen, Yaser Hamdi, was taken prisoner. The Executive Branch argued that it had plenary authority under Article 

II to hold such an ‘‘enemy combatant’’ for the duration of hostilities, and to deny him meaningful recourse to the federal courts. 

In Hamdi v. Rumsfeld, the Court agreed that the President was 

authorized to detain a United States citizen seized in Afghanistan, 

although a majority of the Court appeared to reject the notion that 

such power was inherent in the Presidency, relying instead on statutory grounds.2 However, the Court did find that the government 

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16 ARTICLE II—EXECUTIVE DEPARTMENT 

Breyer, avoided ruling on the Executive Branch argument that such detentions 

could be authorized by its Article II powers alone, and relied instead on the ‘‘Authorization for Use of Military Force’’ passed by Congress. Justice Thomas also found 

that the Executive Branch had the power to detain the petitioner, although his dissenting opinion found that such detentions were authorized by Article II. Justice 

Souter, joined by Justice Ginsberg, rejected the argument that the Congress had authorized such detentions, while Justice Scalia, joined with Justice Stevens, denied 

that such congressional authorization was possible without a suspension of the writ 

of habeas corpus. 3 At a minimum, the petitioner must be given notice of the asserted factual 

basis for holding him, must be given a fair chance to rebut that evidence before a 

neutral decision maker, and must be allowed to consult an attorney. 542 U.S. at 

533, 539. 4 542 U.S. 466 (2004). 

5 Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). 

6The petitioners were Australians and Kuwaitis. 

7 Rasul v. Bush, 542 U.S. at 467. 

8The Court found that 28 U.S.C. § 2241, which had previously been construed 

to require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit 

Court of Ky., 410 U.S. 484 (1973). Another ‘‘enemy combatant’’ case, this one involving an American citizen arrested on American soil, was remanded after the Court 

found that a federal court’s habeas jurisdiction under 28 U.S.C. § 2241 was limited 

to jurisdiction over the immediate custodian of a petitioner. Rumsfeld v. Padilla, 542 

U.S. 426 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld was 

not sufficient to satisfy the presence requirement under 28 U.S.C. § 2241). 

may not detain the petitioner indefinitely for purposes of interrogation, without giving him the opportunity to offer evidence that he 

is not an enemy combatant.3

In Rasul v. Bush,4 the Court rejected an Executive Branch argument that foreign prisoners being held at Guantanamo Bay, 

Cuba were outside of federal court jurisdiction. The Court distinguished earlier case law arising during World War II that denied 

habeas corpus petitions from German citizens who had been captured and tried overseas by United States military tribunals.5 In 

Rasul, the Court noted that the Guantanamo petitioners were not 

citizens of a country at war with the United States,6 had not been 

afforded any form of tribunal, and were being held in a territory 

over which the United States exercised exclusive jurisdiction and 

control.7 In addition, the Court found that statutory grounds existed for the extension of habeas corpus to these prisoners.8

Clause 2. Treaties and Appointment of Officers 

THE TREATY-MAKING POWER 

Treaties as Law of the Land 

[P. 494, add to text after n.271:] 

The meaning of treaties, as of statutes, is determined by the courts. 

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ARTICLE II—EXECUTIVE DEPARTMENT 17 

9Sanchez-Llamas v. Oregon,126 S. Ct. 2669, 2684 (2006), quoting Marbury v. 

Madison, 5 U.S. (1 Cr.) 137, 177 (1803). In Sanchez-Llamas, two foreign nationals 

were arrested in the United States, and, in violation of Article 36 of the Vienna Convention on Consular Relations, their nations’ consuls were not notified that they had 

been detained by authorities in a foreign country (the U.S.). The foreign nationals 

were convicted in Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in challenging their convictions. The Court did not decide whether 

Article 36 grants rights that may be invoked by individuals in a judicial proceeding 

(four justices would have held that it did grant such rights). The reason that the 

Court did not decide whether Article 36 grants rights to defendants was that it held, 

by a 6-to-3 vote, that, even if Article 36 does grant rights, the defendants in the 

two cases before it were not entitled to relief on their claims. It found, specifically, 

that ‘‘suppression of evidence is [not] a proper remedy for a violation of Article 36,’’ 

and that ‘‘an Article 36 claim may be deemed forfeited under state procedural rules 

because a defendant failed to raise the claim at trial.’’ Id. at 2677. 10Sanchez-Llamas v. Oregon, 126 S. Ct. at 2685, quoting Kolovrat v. Oregon, 

366 U.S. 187, 194 (1961). 11Sanchez-Llamas v. Oregon, 126 S. Ct. at 2684, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis 

added by the Court). 12Sanchez-Llamas v. Oregon, 126 S. Ct. at 2685, quoting Breard v. Greene, 523 

U.S. 371, 375 (1998) (per curiam). 13 E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 

1919); 1 W. WILLOUGHBY, supra, at 589. The State Department held the same view. 

5 G. HACKWORTH, DIGEST OF INTERNATIONAL LAW 426 (1944). 

tem, determining their meaning as a matter of federal law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the Constitution.’’ 9 In 

addition, ‘‘[w]hile courts interpret treaties for themselves, the 

meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great 

weight.’’’ 10 Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have ‘‘no binding force except between 

the parties and in respect of that particular case.’’ 11 ICJ decisions 

‘‘are therefore entitled only to the ‘respectful consideration’ due an 

interpretation of an international agreement by an international 

court.’’ 12

INTERNATIONAL AGREEMENTS WITHOUT SENATE 

APPROVAL 

The Domestic Obligation of Executive Agreements 

[P. 527, substitute for first sentence of first full paragraph on page:] 

Initially, it was the view of most judges and scholars that executive agreements based solely on presidential power did not become 

the ‘‘law of the land’’ pursuant to the Supremacy Clause because 

such agreements are not ‘‘treaties’’ ratified by the Senate.13 The 

Supreme Court, however, found another basis for holding state 

laws to be preempted by executive agreements, ultimately relying 

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18 ARTICLE II—EXECUTIVE DEPARTMENT 

14 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453 

U.S. 654 (1981), was rich in learning on many topics involving executive agreements, but the preemptive force of agreements resting solely on presidential power 

was not at issue, the Court concluding that Congress had either authorized various 

presidential actions or had long acquiesced in others. 15 539 U.S. at 416. 16 539 U.S. at 413. 17 539 U.S. at 420. 18 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). See also United 

States v. Belmont, 301 U.S. 324, 331 (1937) (‘‘The external powers of the United 

on the Constitution’s vesting of foreign relations power in the national government. 

[P. 529, substitute for last paragraph of section:] 

Belmont and Pink were reinforced in American Insurance Association v. Garamendi.14 In holding that California’s Holocaust Victim Insurance Relief Act was preempted as interfering with the 

Federal Government’s conduct of foreign relations, as expressed in 

executive agreements, the Court reiterated that ‘‘valid executive 

agreements are fit to preempt state law, just as treaties are.’’ 15

The preemptive reach of executive agreements stems from ‘‘the 

Constitution’s allocation of the foreign relations power to the National Government.’’ 16 Because there was a ‘‘clear conflict’’ between 

the California law and policies adopted through the valid exercise 

of federal executive authority (settlement of Holocaust-era insurance claims being ‘‘well within the Executive’s responsibility for 

foreign affairs’’), the state law was preempted.17

[P. 529, add new section after ‘‘The Domestic Obligation of Executive Agreements’’:] 

State Laws Affecting Foreign Relations — Dormant Federal Power 

and Preemption 

If the foreign relations power is truly an exclusive federal 

power, with no role for the states, a logical consequence, the Supreme Court has held, is that some state laws impinging on foreign 

relations are invalid even in the absence of a relevant federal policy. There is, in effect, a ‘‘dormant’’ foreign relations power. The 

scope of this power remains undefined, however, and its constitutional basis is debated by scholars. 

The exclusive nature of the federal foreign relations power has 

long been asserted by the Supreme Court. In 1840, for example, the 

Court declared that ‘‘it was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state authorities.’’ 18 A hundred 

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ARTICLE II—EXECUTIVE DEPARTMENT 19 

States are to be exercised without regard to state laws or policies. . . . [I]n respect 

of our foreign relations generally, state lines disappear’’); The Chinese Exclusion 

Case, 130 U.S. 581, 606 (1889) (‘‘For local interests the several States of the Union 

exist; but for national purposes, embracing our relations with foreign nations, we 

are but one people, one nation, one power’’); Hines v. Davidowitz, 312 U.S. 52, 63 

(1941) (‘‘Our system of government . . . requires that federal power in the field affecting foreign relations be left entirely free from local interference’’). 19 United States v. Pink, 315 U.S. 203, 233-34 (1942). Chief Justice Stone and 

Justice Roberts dissented. 20 389 U.S. 429 (1968). 21 In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity requirement that did not have the additional requirement relating to confiscation. 22 389 U.S. at 440. 23 389 U.S. at 440, 441. 

years later the Court remained emphatic about federal exclusivity. 

‘‘No State can rewrite our foreign policy to conform to its own domestic policies. Power over external affairs is not shared by the 

States; it is vested in the national government exclusively. It need 

not be so exercised as to conform to State laws or State policies, 

whether they be expressed in constitutions, statutes, or judicial decrees. And the policies of the States become wholly irrelevant to judicial inquiry when the United States, acting within its constitutional sphere, seeks enforcement of its foreign policy in the 

courts.’’ 19

It was not until 1968, however, that the Court applied the general principle to invalidate a state law for impinging on the nation’s foreign policy interests in the absence of an established federal policy. In Zschernig v. Miller,20 the Court invalidated an Oregon escheat law that operated to prevent inheritance by citizens 

of Communist countries. The law conditioned inheritance by nonresident aliens on a showing that U.S. citizens would be allowed 

to inherit estates in the alien’s country, and that the alien heir 

would be allowed to receive payments from the Oregon estate 

‘‘without confiscation.’’ 21 Although a Justice Department amicus 

brief asserted that application of the Oregon law in this one case 

would not cause any ‘‘undu[e] interfer[ence] with the United States’ 

conduct of foreign relations,’’ the Court saw a ‘‘persistent and subtle’’ effect on international relations stemming from the ‘‘notorious’’ 

practice of state probate courts in denying payments to persons 

from Communist countries.22 Regulation of descent and distribution of estates is an area traditionally regulated by states, but such 

‘‘state regulations must give way if they impair the effective exercise of the Nation’s foreign policy.’’ If there are to be travel, probate, or other restraints on citizens of Communist countries, the 

Court concluded, such restraints ‘‘must be provided by the Federal 

Government.’’ 23

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20 ARTICLE II—EXECUTIVE DEPARTMENT 

24See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The 

Original Understanding of Foreign Policy Federalism, 75 NOTRE DAME L. REV. 341 

(1999); Carlos Manuel Vazquez, Whither Zschernig? 46 VILL. L. REV. 1259 (2001); 

Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 

1617 (1997); Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L. REV. 1223 

(1999). See also LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 149-69 

(2d ed. 1996). 25 Crosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (1999). For 

the appeals court’s application of Zschernig, see National Foreign Trade Council v. 

Natsios, 181 F.3d 38, 49-61 (1st Cir. 1999). 26 American Insurance Association v. Garamendi, 539 U.S. at 419 & n.11 (2003). 27 It is contended, for example, that Article I, § 10’s specific prohibitions against 

states’ engaging in war, making treaties, keeping troops in peacetime, and issuing 

letters of marque and reprisal would have been unnecessary if a more general, dormant foreign relations power had been intended. Similarly, there would have been 

no need to declare treaties to be the supreme law of the land if a more generalized 

foreign affairs preemptive power existed outside of the Supremacy Clause. See 

Ramsey, supra, 75 NOTRE DAME L. REV. 341. 28 Arguably, part of the ‘‘executive power’’ vested in the President by Art. II, § 

1 is a power to conduct foreign relations. 

Zschernig lay dormant for some time, and, although it has 

been addressed recently by the Court, it remains the only holding 

in which the Court has applied a dormant foreign relations power 

to strike down state law. There was renewed academic interest in 

Zschernig in the 1990s, as some state and local governments 

sought ways to express dissatisfaction with human rights policies 

of foreign governments or to curtail trade with out-of-favor countries.24 In 1999, the Court struck down Massachusetts’ Burma 

sanctions law on the basis of statutory preemption, and declined to 

address the appeals court’s alternative holding applying 

Zschernig.25 Similarly, in 2003 the Court held that California’s 

Holocaust Victim Insurance Relief Act was preempted as interfering with federal foreign policy reflected in executive agreements, 

and, although the Court discussed Zschernig at some length, it saw 

no need to resolve issues relating to its scope.26

Dictum in Garamendi recognizes some of the questions that 

can be raised about Zschernig. The Zschernig Court did not identify 

what language in the Constitution mandates preemption, and commentators have observed that a respectable argument can be made 

that the Constitution does not require a general foreign affairs preemption not tied to the Supremacy Clause, and broader than and 

independent of the Constitution’s specific prohibitions 27 and grants 

of power.28 The Garamendi Court raised ‘‘a fair question whether 

respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict 

preemption evident in the Zschernig opinions.’’ Instead, Justice 

Souter suggested for the Court in Garamendi, field preemption 

may be appropriate if a state legislates ‘‘simply to take a position 

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ARTICLE II—EXECUTIVE DEPARTMENT 21 

29 539 U.S. at 419 n.11. 30 Justice Ginsburg’s dissent in Garamendi, joined by the other three dissenters, 

suggested limiting Zschernig in a manner generally consistent with Justice Souter’s 

distinction. Zschernig preemption, Justice Ginsburg asserted, ‘‘resonates most audibly when a state action ‘reflects a state policy critical of foreign governments and 

involve[s] sitting in judgment on them.’’’ 539 U.S. at 439 (quoting HENKIN, supra 

n.24, at 164). But Justice Ginsburg also voiced more general misgivings about 

judges’ becoming ‘‘the expositors of the Nation’s foreign policy.’’ Id. at 442. In this 

context, see Goldsmith, supra n.24, at 1631, describing Zschernig preemption as ‘‘a 

form of the federal common law of foreign relations.’’ 31 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 

54 Stat. 767-768, applied the same broad ban to employees of federally funded state 

and local agencies, but this provision was amended in 1974 to restrict state and 

local government employees in only one respect: running for public office in partisan 

elections. Act of Oct. 15, 1974, P. L. 93-443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502. 32 330 U.S. 75 (1947). See also Civil Serv. Corp. v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973), in which the constitutional attack was renewed, in large 

part based on the Court’s expanding free speech jurisprudence, but the act was 

again sustained. A ‘‘little Hatch Act’’ of a state, applying to its employees, was sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973). 33P. L. 103-94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321-7326. Executive 

branch employees (except those appointed by the President, by and with the advice 

on a matter of foreign policy with no serious claim to be addressing 

a traditional state responsibility,’’ and conflict preemption may be 

appropriate if a state legislates within an area of traditional responsibility, ‘‘but in a way that affects foreign relations.’’ 29 We 

must await further litigation to see whether the Court employs this 

distinction.30

THE EXECUTIVE ESTABLISHMENT 

Appointments and Congressional Regulation of Offices 

—Congressional Regulation of Conduct in Office 

[P. 540, substitute for final paragraph of section:] 

Until 1993, § 9(a) of the Hatch Act 31 prohibited any person in 

the executive branch, or any executive branch department or agency, except the President and the Vice President and certain ‘‘policy 

determining’’ officers, to ‘‘take an active part in political management or political campaigns,’’ although employees had been permitted to ‘‘express their opinions on all political subjects and candidates.’’ In United Public Workers v. Mitchell,32 these provisions 

were upheld as ‘‘reasonable’’ against objections based on the First, 

Fifth, Ninth, and Tenth Amendments. The Hatch Act Reform 

Amendments of 1993, however, substantially liberalized the rules 

for political activities during off-duty hours for most executive 

branch employees, subject to certain limitations on off-duty hours 

activities and express prohibitions against on-the-job partisan political activities.33

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22 ARTICLE II—EXECUTIVE DEPARTMENT 

and consent of the Senate) who are listed in § 7323(b)(2), which generally include 

those employed by agencies involved in law enforcement or national security, remain under restrictions similar to the those in the old Hatch Act on taking an active 

part in political management or political campaigns. 34 Reynolds, 345 U.S. at 11, n.26. 35 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating and applying Totten’s ‘‘broader holding that lawsuits premised on alleged espionage agreements are altogether forbidden’’). The Court in Tenet distinguished 

Webster v. Doe on the basis of ‘‘an obvious difference . . . between a suit brought 

by an acknowledged (though covert) employee of the CIA and one filed by an alleged 

former spy.’’ Id. at 10. 36 Cheney v. United States District Court, 542 U.S. 367 (2004). 37 Although the information sought in Nixon was important to ‘‘the constitutional need for production of relevant evidence in a criminal proceeding,’’ the suit 

against the Vice President was civil, and withholding the information ‘‘does not 

hamper another branch’s ability to perform its ‘essential functions.’’’ 542 U.S. at 

383, 384. 38The Court recognized ‘‘the paramount necessity of protecting the Executive 

Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.’’ 542 U.S. at 382. But cf. Clinton v. Jones, 520 U.S. 

681, 702 (1997). 

The Presidential Aegis: Demands for Papers 

—Private Access to Government Information 

[P. 556, add to text at end of section:] 

Reynolds dealt with an evidentiary privilege. There are other circumstances, however, in which cases must be ‘‘dismissed on the 

pleadings without ever reaching the question of evidence.’’ 34 In 

holding that federal courts should refuse to entertain a breach of 

contract action seeking enforcement of an agreement to compensate 

someone who performed espionage services during the Civil War, 

the Court in Totten v. United States declared that ‘‘public policy 

forbids the maintenance of any suit in a court of justice, the trial 

of which would inevitably lead to the disclosure of matters which 

the law itself regards as confidential.’’ 35

—Prosecutorial and Grand Jury Access to Presidential Documents 

[P. 559, add to text at end of section:] 

Public disclosure was at issue in 2004 when the Court weighed 

a claim of executive privilege asserted as a bar to discovery orders 

for information disclosing the identities of individuals who served 

on an energy task force chaired by the Vice President.36 Although 

the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,37 and, in instructing the appeals 

court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.38

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PRESIDENTIAL ACTION IN THE DOMAIN OF 

CONGRESS: THE STEEL SEIZURE CASE 

Power Denied by Congress 

[P. 599, add to n.718:] 

In Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2800 (2006), Justice Kennedy, in a concurring opinion joined by three other Justices, endorsed ‘‘the three-part scheme used 

by Justice Jackson’’ as ‘‘[t]he proper framework for assessing whether Executive actions are authorized.’’ The Court in this case found ‘‘that the military commission 

convened [by the President, in Guantanamo Bay, Cuba] to try Hamdan lacks power 

to proceed because its structure and procedures violate [the Uniform Code of Military Justice].’’ Id. at 2759. Thus, as Justice Kennedy noted, ‘‘the President has acted 

in a field with a history of congressional participation and regulation.’’ Id. at 2800. 

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1 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. 

2 INS v. St. Cyr, 533 U.S. 289, 301 (2001), as quoted in Rasul v. Bush, 542 U.S. 

466, 474 (2004). 

3 Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973) (issue is 

whether ‘‘the custodian can be reached by service of process’’). See also Rasul v. 

Bush, 542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction of habeas petitions from prisoners held at U.S. Naval base at Guantanamo 

Bay, Cuba); Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New 

York lacks jurisdiction over prisoner being held in a naval brig in Charleston, South 

Carolina; the commander of the brig, not the Secretary of Defense, is the immediate 

custodian and proper respondent). 

ARTICLE III 

Section 1. Judicial Power, Courts, Judges 

ANCILLARY POWERS OF FEDERAL COURTS 

Power to Issue Writs: The Act of 1789 

—Habeas Corpus: Congressional and Judicial Control 

[P. 669, substitute for first sentence of section:] 

The writ of habeas corpus [text n.241] has a special status because its suspension is forbidden, except in narrow circumstances, 

by Article I, § 9, cl. 2. The writ also has a venerable common law 

tradition, long antedating its recognition in the Judiciary Act of 

1789,1 as a means ‘‘to relieve detention by executive authorities 

without judicial trial.’’ 2 Nowhere in the Constitution, however, is 

the power to issue the writ vested in the federal courts. 

—Habeas Corpus: The Process of the Writ 

[P. 671, add to text after n.254:] 

The writ acts upon the custodian, not the prisoner, so the issue 

under the jurisdictional statute is whether the custodian is within 

the district court’s jurisdiction.3

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26 ARTICLE III—JUDICIAL DEPARTMENT 

4DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1864-65 (2006) (standing denied to taxpayer claim that state tax credit given to vehicle manufacturer violated 

the Commerce Clause). 5 342 U.S. at 434. 

6 342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); 

quoted with approval in DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1863 

(2006). 

Section 2. Judicial Power and Jurisdiction 

Clause 1. Cases and Controversies; Grants of Jurisdiction 

JUDICIAL POWER AND JURISDICTION—CASES AND 

CONTROVERSIES 

Substantial Interest: Standing 

—Taxpayer Suits 

[P. 690, add to text after n.352:] 

Most recently, the Court refused to create an exception for Commerce Clause violations to the general prohibition on taxpayer 

standing.4

[P. 690, add to n.353:] 

In DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1865 (2006), the Court held that 

a plaintiff’s status as a municipal taxpayer does not give him standing to challenge 

a state tax credit. 

[P. 690, substitute for final sentence of section:] 

The taxpayer’s action in Doremus, the Court wrote, ‘‘is not a direct 

dollars-and-cents injury but is a religious difference.’’ 5 This rationale was similar to the spending program-regulatory program distinction of Flast. But, even a dollar-and-cents injury resulting from 

a state spending program will apparently not constitute a direct 

dollars-and-cents injury. The Court in Doremus wrote that a taxpayer challenging either a federal or a state statute ‘‘must be able 

to show not only that the statute is invalid but that he has sustained some direct injury as a result of its enforcement, and not 

merely that he suffers in some indefinite way in common with people generally.’’ 6

—Standing to Assert the Constitutional Rights of Others 

[P. 698, add to n.396:] 

Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 

(2004), the Court’s finding that attorneys seeking to represent hypothetical indigent 

clients in challenging procedures for appointing appellate counsel had ‘‘no relationship at all’’ with such potential clients, let alone a ‘‘close’’ relationship. 

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ARTICLE III—JUDICIAL DEPARTMENT 27 

7The doctrine derives its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 

(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). 8 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005) 

(Rooker-Feldman has no application when federal court proceedings have been initiated prior to state court proceedings; preclusion law governs in that situation.) 

The Requirement of a Real Interest 

—Retroactivity Versus Prospectivity 

[P. 722, add to n.534:] 

For recent application of the principles, see Schriro v. Summerlin, 542 U.S. 348 

(2004) (requirement that aggravating factors justifying death penalty be found by 

the jury was a new procedural rule that does not apply retroactively). 

Political Questions 

—The Doctrine Reappears 

[P. 734, add to n.605:] 

But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable standard has been 

found for measuring burdens on representational rights imposed by political gerrymandering). 

Clause 2. Original and Appellate Jurisdiction 

FEDERAL-STATE COURT RELATIONS 

Conflicts of Jurisdiction: Rules of Accommodation 

—Res Judicata 

[P. 842, add to text at end of section:] 

Closely related is the Rooker-Feldman doctrine, holding that federal subject-matter jurisdiction of federal district courts does not 

extend to review of state court judgments.7 The Supreme Court, 

not federal district courts, has such appellate jurisdiction. The doctrine thus prevents losers in state court from obtaining district 

court review, but ‘‘does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow 

federal courts to stay or dismiss proceedings in deference to statecourt actions.’’ 8

Conflicts of Jurisdiction: Federal Court Interference with State 

Courts 

—Habeas Corpus: Scope of the Writ 

[P. 858, add to n.1312:] 

In House v. Bell, 126 S. Ct. 2064, 2086-2087 (2006), the Court declined to resolve 

the issue that in Herrera it had assumed without deciding: that ‘‘a truly persuasive 

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demonstration of ‘actual innocence’ made after trial would render the execution of 

a defendant unconstitutional.’’ See Amendment 8, Limitations on Habeas Corpus 

Review of Capital Sentences. 

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1See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (statutes); and Smithsonian Institution v. St. John, 214 U.S. 19 (1909) (state constitutional provision). 2 Baker v. General Motors Corp., 522 U.S. 222, 232 (1998), quoted in Franchise 

Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Justice Nelson in the Dred Scott 

case drew an analogy to international law, concluding that states, as well as nations, judge for themselves the rules governing property and persons within their 

territories. Scott v. Sandford, 60 U.S. (19 How.) 393, 460 (1857). ‘‘One State cannot 

exempt property from taxation in another,’’ the Court concluded in Bonaparte v. Tax 

Court, 104 U.S. 592 (1882), holding that no provision of the Constitution, including 

the Full Faith and Credit Clause, enabled a law exempting from taxation certain 

debts of the enacting state to prevent another state (the state in which the creditor 

resided) from taxing the debts. See also Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 

519, 589-96 (1839); Kryger v. Wilson, 242 U.S. 171 (1916); and Bond v. Hume, 243 

U.S. 15 (1917). 3 Baker v. General Motors Corp., 522 U.S. at 232. 

4 Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935); 

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). When, in a state court, the validity of an act of the legislature of another state is not in question, and the controversy turns merely upon its interpretation or construction, no question arises 

ARTICLE IV 

Section 1. Full Faith and Credit 

RECOGNITION OF RIGHTS BASED UPON 

CONSTITUTIONS, STATUTES, COMMON LAW 

Development of the Modern Rule 

[P. 896, substitute for entire section:] 

Although the language of section one suggests that the same 

respect should be accorded to ‘‘public acts’’ that is accorded to ‘‘judicial proceedings’’ (‘‘full faith and credit shall be given in each State 

to the public acts, records, and judicial proceedings of every other 

State’’), and the Court has occasionally relied on this parity of 

treatment,1 the Court has usually differentiated ‘‘the credit owed to 

laws (legislative measures and common law) and to judgments.’’ 2

The current understanding is that the Full Faith and Credit 

Clause is ‘‘exacting’’ with respect to final judgments of courts, but 

‘‘is less demanding with respect to choice of laws.’’ 3

The Court has explained that where a statute or policy of the 

forum state is set up as a defense to a suit brought under the statute of another state or territory, or where a foreign statute is set 

up as a defense to a suit or proceedings under a local statute, the 

conflict is to be resolved, not by giving automatic effect to the Full 

Faith and Credit Clause and thus compelling courts of each state 

to subordinate their own statutes to those of others, but by weighing the governmental interests of each jurisdiction.4 That is, the 

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under the Full Faith and Credit Clause. See also Western Life Indemnity Co. v. 

Rupp, 235 U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893), Lloyd v. Matthews, 155 U.S. 222, 227 (1894); Banholzer v. New York Life Ins. Co., 178 U.S. 402 

(1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R.R. v. Miller, 

221 U.S. 408 (1911); National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904); 

Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania Fire Ins. 

Co. v. Gold Issue Mining Co. 243 U.S. 93 (1917). 

5 E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440 U.S. 

410 (1979); Carroll v. Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Industrial 

Accident Comm’n, 294 U.S. 532 (1935). 

6Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate 

Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion)). 

7Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 498, 499 (2003). 

8 ‘‘[A]bsence of an express statement . . . identifying out-of-state citizenship as 

a basis for disparate treatment is not a sufficient basis for rejecting [a] claim.’’ Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003). 

Full Faith and Credit Clause, in its design to transform the states 

from independent sovereigns into a single unified Nation, directs 

that a state, when acting as the forum for litigation having 

multistate aspects or implications, respect the legitimate interests 

of other states and avoid infringement upon their sovereignty. But 

because the forum state is also a sovereign in its own right, in appropriate cases it may attach paramount importance to its own legitimate interests.5 In order for a state’s substantive law to be selected in a constitutionally permissible manner, that state must 

have a significant contact or significant aggregation of contacts, 

creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.6 Once that threshold is met, the 

Court will not weigh the competing interests. ‘‘[T]he question of 

which sovereign interest should be deemed more weighty is not one 

that can be easily answered,’’ the Court explained, ‘‘declin[ing] to 

embark on the constitutional course of balancing coordinate States’ 

competing interests to resolve conflicts of laws under the Full Faith 

and Credit Clause.’’ 7

Section 2. Interstate Comity 

Clause 1. State Citizenship: Privileges and Immunities 

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES 

Origin and Purpose 

[P. 912, add to text at end of section:] 

A violation can occur whether or not a statute explicitly discriminates against out-of-state interests.8

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ARTICLE V 

AMENDMENT OF THE CONSTITUTION 

Proposing a Constitutional Amendment 

—Proposals by Congress 

[P. 941, substitute for n.20:] 

In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Court rejected a challenge to the Eleventh Amendment based on the argument that it had not been submitted to the President for approval or veto. The Court’s brief opinion merely determined that the Eleventh Amendment was ‘‘constitutionally adopted.’’ Id. at 382. Apparently during oral argument, Justice Chase opined that ‘‘[t]he negative of the 

President applies only to the ordinary cases of legislation: He has nothing to do with 

the proposition, or adoption, of amendments to the Constitution.’’ Id. at 381. See 

Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly 

Reasoned, 83 TEX. L. REV. 1265 (2005), for extensive analysis of what Hollingsworth’s delphic pronouncement could mean. Whatever the Court decided in Hollingsworth, it has since treated the issue as settled. See Hawke v. Smith, 253 U.S. 

221, 229 (1920) (in Hollingsworth, ‘‘this court settled that the submission of a constitutional amendment did not require the action of the President’’); INS v. Chadha, 

462 U.S. 919, 955 n.21 (1983) (in Hollingsworth, the Court ‘‘held Presidential approval was unnecessary for a proposed constitutional amendment’’). 

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1McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722 (2005). 

2 Van Orden v. Perry, 125 S. Ct. 2854 (2005). 

3 125 S. Ct. at 2738. The Court in its previous Ten Commandments case, Stone 

v. Graham, 449 U.S. 39, 41 (1980) (invalidating display in public school classrooms) 

had concluded that the Ten Commandments are ‘‘undeniably a sacred text,’’ and the 

2005 Court accepted that characterization. McCreary, 125 S. Ct. at 2732. 4 125 S. Ct. at 2745. An ‘‘indisputable’’ religious purpose was evident in the resolutions authorizing a second display, and the Court characterized statements of 

purpose accompanying authorization of the third displays as ‘‘only . . . a litigating 

position.’’ 125 S. Ct. at 2739, 2740. 5Only Justice Breyer voted to invalidate the courthouse displays and uphold the 

capitol grounds display. The other eight Justices were split evenly, four (Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both 

displays, and four (Justices Stevens, O’Connor, Souter, and Ginsburg) voting to invalidate both. 

FIRST AMENDMENT 

RELIGION 

Establishment of Religion 

—Governmental Encouragement of Religion in Public Schools: Prayers and Bible Readings 

[P. 1047, add to n.163:] 

An opportunity to flesh out this distinction was lost when the Court dismissed for 

lack of standing an Establishment Clause challenge to public school recitation of the 

Pledge of Allegiance with the words ‘‘under God.’’ Elk Grove Unified School District 

v. Newdow, 542 U.S. 1 (2004). 

—Religious Displays on Government Property 

[P. 1058, add to text at end of section:] 

Displays of the Ten Commandments on government property 

occasioned two decisions in 2005. As in Allegheny County, a closely 

divided Court determined that one display violated the Establishment Clause and one did not. And again, context and imputed purpose made the difference. The Court struck down display of the 

Ten Commandments in courthouses in two Kentucky counties,1 but 

held that a display on the grounds of the Texas State Capitol was 

permissible.2 The displays in the Kentucky courthouses originally 

‘‘stood alone, not part of an arguably secular display.’’ 3 Moreover, 

the history of the displays revealed ‘‘a predominantly religious purpose’’ that had not been eliminated by steps taken to give the appearance of secular objectives.4

There was no opinion of the Court in Van Orden. Justice 

Breyer, the swing vote in the two cases,5 distinguished the Texas 

Capitol grounds display from the Kentucky courthouse displays. In 

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6 125 S. Ct. at 2869, 2871. 

7 125 S. Ct. at 2871. 

8Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davy, 540 U.S. 712, 

718 (2004); Cutter v. Wilkinson, 544 U.S. 709, 713 (2005). 9 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987). 10Locke v. Davy, 540 U.S. 712 (2004). 11 540 U.S. at 720-21. Excluding theology students but not students training for 

other professions was permissible, the Court explained, because ‘‘[t]raining someone 

to lead a congregation is an essentially religious endeavor,’’ and the Constitution’s 

some contexts, the Ten Commandments can convey a moral and 

historical message as well as a religious one, the Justice explained. 

Although it was ‘‘a borderline case’’ turning on ‘‘a practical matter 

of degree,’’ the capitol display served ‘‘a primarily nonreligious purpose.’’ 6 The monument displaying the Ten Commandments was 

one of 17 monuments and 21 historical markers on the Capitol 

grounds; it was paid for by a private, civic, and primarily secular 

organization; and it had been in place, unchallenged, for 40 years. 

Under the circumstances, Justice Breyer thought it unlikely that 

the monument will be understood to represent an attempt by government to favor religion.7

Free Exercise of Religion 

[P. 1060, add to text after n.234:] 

‘‘There is room for play in the joints productive of a benevolent 

neutrality which will permit religious exercise to exist without 

[governmental] sponsorship and without interference.’’ 8

[P. 1061, add to n.236:] 

Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a provision of the Religious 

Land Use and Institutionalized Persons Act of 2000 that prohibits governments 

from imposing a ‘‘substantial burden on the religious exercise’’ of an institutionalized person unless the burden furthers a ‘‘compelling governmental interest’’). 

[P. 1061, add to text at end of section:] 

Government need not, however, offer the same accommodations to 

secular entities that it extends to religious practitioners in order to 

facilitate their religious exercise; ‘‘[r]eligious accommodations . . . 

need not ‘come packaged with benefits to secular entities.’’’ 9

‘‘Play in the joints’’ can work both ways, the Court ruled in upholding a state’s exclusion of theology students from a college scholarship program.10 Although the state could have included theology 

students in its scholarship program without offending the Establishment Clause, its choice not to fund religious training did not offend the Free Exercise Clause even though that choice singled out 

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special treatment of religion finds ‘‘no counterpart with respect to other callings or 

professions.’’ Id. at 721. 12 540 U.S. at 720-21 (distinguishing Church of the Lukumi Babalu Aye v. City 

of Hialeah, 508 U.S. 520 (1993) (law aimed at restricting ritual of a single religious 

group); McDaniel v. Paty, 435 U.S. 618 (1978) (law denying ministers the right to 

serve as delegates to a constitutional convention); and Sherbert v. Verner, 374 U.S. 

398 (1963) (among the cases prohibiting denial of benefits to Sabbatarians)). 13See, e.g., In re Young, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811 

(1998) (RFRA is a valid exercise of Congress’ bankruptcy powers as applied to insulate a debtor’s church tithes from recovery by the bankruptcy trustee); O’Bryan v. 

Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003) (RFRA may be applied to require 

the Bureau of Prisons to accommodate religious exercise by prisoners); Kikumura 

v. Hurley, 242 F.3d 950 (10th Cir. 2001) (RFRA applies to Bureau of Prisons). 14Pub. L. 106-274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq. 15The Act requires that state and local zoning and landmark laws and regulations which impose a substantial burden on an individual’s or institution’s exercise 

of religion be measured by a strict scrutiny test, and applies the same strict scrutiny 

test for any substantial burdens imposed on the exercise of religion by persons institutionalized in state or locally run prisons, mental hospitals, juvenile detention facilities, and nursing homes. Both provisions apply if the burden is imposed in a program that receives federal financial assistance, or if the burden or its removal would 

affect commerce. 16 544 U.S. 709 (2005). 

ing, the Court observed, was ‘‘far milder’’ than restrictions on religious practices that have been held to offend the Free Exercise 

Clause.12

—Free Exercise Exemption from General Governmental Requirements 

[P. 1066, add to n.264:] 

In 2004, the Court rejected for lack of standing an Establishment Clause challenge 

to recitation of the Pledge of Allegiance in public schools. Elk Grove Unified School 

District v. Newdow, 542 U.S. 1 (2004). 

[P. 1075, substitute for final paragraph of section:] 

Boerne did not close the books on Smith, however, or even on 

RFRA. Although Boerne held that RFRA was not a valid exercise 

of Fourteenth Amendment enforcement power as applied to restrict 

states, it remained an open issue whether RFRA may be applied 

to the federal government, and whether its requirements could be 

imposed pursuant to other powers. Several lower courts answered 

these questions affirmatively.13

Congress responded to Boerne by enacting a new law purporting to rest on its commerce and spending powers. The Religious 

Land Use and Institutionalized Persons Act (RLUIPA) 14 imposes 

the same strict scrutiny test struck down in Boerne but limits its 

application to certain land use regulations and to religious exercise 

by persons in state institutions.15 In Cutter v. Wilkinson,16 the 

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36 AMENDMENT 1—RELIGION, FREE SPEECH, ETC 

17 544 U.S. at 714. 18 544 U.S. at 720. 

lenge under the Establishment Clause, but it did not rule on congressional power to enact RLUIPA. The Court held that RLUIPA 

‘‘does not, on its face, exceed the limits of permissible government 

accommodation of religious practices.’’ 17 Rather, the provision ‘‘fits 

within the corridor’’ between the Free Exercise and Establishment 

Clauses, and is ‘‘compatible with the [latter] because it alleviates 

exceptional government-created burdens on private religious exercise.’’ 18

FREEDOM OF EXPRESSION — SPEECH AND PRESS 

The Doctrine of Prior Restraint 

—Obscenity and Prior Restraint 

[P. 1090, add to n.394 after citation to Fort Wayne Books:] 

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 784 (2004) (‘‘Where (as here 

and as in FW/PBS) the regulation simply conditions the operation of an adult business on compliance with neutral and nondiscretionary criteria . . . and does not seek 

to censor content, an adult business is not entitled to an unusually speedy judicial 

decision of the Freedman type’’); 

Subsequent Punishment: Clear and Present Danger and Other Tests 

—Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, Narrow Tailoring, and Effectiveness of Speech 

Restrictions 

[P. 1108, add to text immediately before comma preceding n.481:] 

and indecency 

[P. 1108, add to n.481:] 

Reno v. ACLU, 521 U.S. 844, 870-874 (1997). In National Endowment for the Arts 

v. Finley, 524 U.S. 569 (1998), the Court held that a ‘‘decency’’ criterion for the 

awarding of grants, which ‘‘in a criminal statute or regulatory scheme . . . could 

raise substantial vagueness concerns,’’ was not unconstitutionally vague in the context of a condition on public subsidy for speech. 

[P. 1108, substitute for rest of section after n.484:] 

But, even in a First Amendment situation, the Court has written, ‘‘there are substantial social costs created by the overbreadth 

doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits 

of declaring a law ‘overbroad,’ we have insisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute 

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19 Virginia v. Hicks, 539 U.S. 113, 119-20, 124 (2003) (italics in original; citations omitted) (upholding, as not addressed to speech, an ordinance banning from 

streets within a low-income housing development any person who is not a resident 

or employee and who ‘‘cannot demonstrate a legitimate business or social purpose 

for being on the premises’’). Virginia v. Hicks cited Broadrick v. Oklahoma, 413 U.S. 

601 (1973), which, in the opinion of the Court and in Justice Brennan’s dissent, id. 

at 621, contains extensive discussion of the overbreadth doctrine. Other restrictive 

decisions are Arnett v. Kennedy, 416 U.S. 134, 158-64 (1974); Parker v. Levy, 417 

U.S. 733, 757-61 (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982). Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815-18 (1975); Erznoznik v. City of 

Jacksonville, 422 U.S. 205 (1975); Doran v. Salem Inn, 422 U.S. 922, 932-34 (1975); 

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633-39 

(1980); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 

(1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); 

City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to 

‘‘oppose, molest, abuse, or interrupt’’ police officer in performance of duty); Board of 

Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all 

‘‘First Amendment activities’’ at airport); Reno v. ACLU, 521 U.S. 844, 874-879 

(1997) (statute banning ‘‘indecent’’ material on the Internet). 20Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002). 21Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989). 22 E.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (time, place, and manner restriction upheld as ‘‘narrowly tailored to serve a significant government interest, 

and leav[ing] open ample alternative channels of communication’’); Ward v. Rock 

Against Racism, 491 U.S. 781, 798-799 (1989) (incidental restriction upheld as 

sense, but also relative to the scope of the law’s plainly legitimate 

applications, before applying the ‘strong medicine’ of overbreadth 

invalidation. . . . Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed 

to speech or to conduct necessarily associated with speech (such as 

picketing or demonstrating).’’ 19

Closely related at least to the overbreadth doctrine, the Court 

has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, 

‘‘[i]f the First Amendment means anything, it means that regulating speech must be a last — not first — resort.’’ 20 Thus, when 

the Court applies ‘‘strict scrutiny’’ to a content-based regulation of 

fully protected speech, it requires that the regulation be ‘‘the least 

restrictive means to further the articulated interest.’’ 21 Similarly, 

the Court requires ‘‘narrow tailoring’’ even of restrictions to which 

it does not apply strict scrutiny. Thus, in the case of restrictions 

that are not content-based (time, place, or manner restrictions; incidental restrictions); or in the case of restrictions of speech to 

which the Court accords less than full First Amendment protection 

(campaign contributions and other freedoms of association; commercial speech), though the Court does not require that the government use the least restrictive means available to accomplish its 

end, it does require that the regulation not restrict speech unreasonably.22 The Court uses tests closely related to one another in 

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‘‘promot[ing] a substantial governmental interest that would be achieved less effectively absent the regulation’’); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (campaign 

contribution ceiling ‘‘may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment 

of associational freedom’’); Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) (commercial speech restrictions need not be ‘‘absolutely the least severe that will achieve 

the desired end,’’ but must exhibit ‘‘a ‘fit’ between the legislature’s ends and the 

means chosen to accomplish those ends — a fit that is not necessarily perfect, but 

reasonable . . .’’) (internal quotation mark and citation ommited)). But see Thompson 

v. Western States Medical Center, 535 U.S. 357, 371 (2002) (commercial speech restriction struck down as ‘‘more extensive than necessary to serve’’ the government’s 

interests). 

23 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984). 

24 United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993). 

25Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental restriction on speech). The Court has applied the same principle with respect to commercial speech restrictions (Edenfield v. Fane, 507 U.S. 761, 770-771 (1993)), and 

campaign contribution restrictions (Nixon v. Shrink Missouri Government PAC, 528 

U.S. 377, 392 (2000)). With respect to denying minors’ access to sexually explicit 

material, one court wrote: ‘‘We recognize that the Supreme Court’s jurisprudence 

does not require empirical evidence. Only some minimal amount of evidence is required when sexually explicit programming and children are involved.’’ Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998), aff’d, 529 

U.S. 803 (2000). In a case upholding a statute that, to shield minors from ‘‘indecent’’ 

material, limited the hours that such material may be broadcast on radio and television, the court of appeals wrote, ‘‘Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable 

minds that can result from a persistent exposure to sexually explicit material. . . .’’ 

Action for Children’s Television v. FCC, 58 F.3d 654, 662 (D.C. Cir. 1995) (en banc), 

cert. denied, 516 U.S. 1043 (1996). A dissenting opinion complained that ‘‘[t]here is 

not one iota of evidence in the record . . . to support the claim that exposure to indecency is harmful — indeed, the nature of the alleged ‘harm’ is never explained.’’ Id. 

at 671 (Edwards, C.J., dissenting). 

these instances in which it does not apply strict scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech ‘‘in the last analysis is little, if any, 

different from the standard applied to time, place, or manner restrictions,’’ 23 and that ‘‘the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.’’ 24

Also, except apparently when the government seeks to deny 

minors access to sexually explicit material, the Supreme Court, 

even when applying less than strict scrutiny, requires that, ‘‘[w]hen 

the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more 

than simply ‘posit the existence of the disease sought to be cured.’ 

It must demonstrate that the recited harms are real, not merely 

conjectural, and that the regulation will in fact alleviate these 

harms in a direct and material way.’’ 25

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26 Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). 

In Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), 

the Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from donors, but falsely represented that ‘‘a significant amount of each dollar 

donated would be paid over to’’ a charitable organization, could be sued for fraud. 27Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas 

& Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986), a Court plurality held 

that a state could not require a privately owned utility company to include in its 

billing envelopes views of a consumer group with which it disagrees. 28McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 29 Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). 

Freedom of Belief 

—Flag Salute Cases 

[P. 1111, change heading to ‘‘Flag Salutes and Other Compelled 

Speech’’] 

[P. 1111, add to n.501:] 

The First Amendment is not violated when the government compels financial contributions to fund government speech, even if the contributions are raised through 

a targeted assessment rather than through general taxes. Johanns v. Livestock 

Marketing Ass’n, 544 U.S. 550 (2005). 

[P. 1112, add to text at end of section:] 

Other governmental efforts to compel speech have also been 

held by the Supreme Court to violate the First Amendment; these 

include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,26 a 

Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers’ criticism and attacks on their records,27 an Ohio statute that prohibited the distribution of anonymous campaign literature,28 and a Massachusetts 

statute that required private citizens who organized a parade to include among the marchers a group imparting a message — in this 

case support for gay rights — that the organizers did not wish to 

convey.29

By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial 

speech, or when it compels the labeling of foreign political propaganda. Regarding compelled disclosures in commercial speech, the 

Court held that an advertiser’s ‘‘constitutionally protected interest 

in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are reasonably protected as long as disclosure requirements are reasonably related to 

the State’s interest in preventing deception of consumers. . . . The 

right of a commercial speaker not to divulge accurate information 

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30Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985). 31Meese v. Keene, 481 U.S. 465, 480 (1987). 32 543 U.S. 77 (2004) (per curiam). 

regarding his services is not . . . a fundamental right.’’ 30 Regarding 

compelled labeling of foreign political propaganda, the Court 

upheld a provision of the Foreign Agents Registration Act of 1938 

that required that, when an agent of a foreign principal seeks to 

disseminate foreign ‘‘political propaganda,’’ he must label such material with certain information, including his identity, the principal’s identity, and the fact that he has registered with the Department of Justice. The Court found that ‘‘Congress did not prohibit, edit, or restrain the distribution of advocacy materials. . . . 

To the contrary, Congress simply required the disseminators of 

such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda.’’ 31

Right of Association 

[P. 1120, substitute for n.556:] 

530 U.S. at 653. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 

126 S. Ct. 1297, 1312 (2006), the Court held that the Solomon Amendment’s forcing 

law schools to allow military recruiters on campus does not violate the schools’ freedom of expressive association because ‘‘[r]ecruiters are, by definition, outsiders who 

come onto campus for the limited purpose of trying to hire students — not to become 

members of the school’s expressive association. This distinction is critical. Unlike 

the public accommodations law in Dale, the Solomon Amendment does not force a 

law school ‘to accept members it does not desire.’’’ Rumsfeld is discussed below 

under ‘‘Government and the Power of the Purse.’’ 

[P. 1121, add to n.561:] 

California Democratic Party v. Jones, 530 U.S. 567, 577 (2000) (requirement of a 

‘‘blanket’’ primary, in which all registered voters, regardless of political affiliation, 

may participate, unconstitutionally ‘‘forces political parties to associate with — to 

have their nominees, and hence their positions, determined by — those who, at best, 

have refused to affiliate with the party, and, at worst, have expressly affiliated with 

a rival.’’ Clingman v. Beaver, 544 U.S. 581 (2005) (Oklahoma statute that allowed 

only registered members of a political party, and registered independents, to vote 

in the party’s primary does not violate freedom of association; Oklahoma’s 

‘‘semiclosed primary system’’ distinguished from Connecticut’s closed primary that 

was struck down in Tashjian. 

Particular Government Regulations That Restrict Expression 

—Government as Employer: Free Expression Generally 

[P. 1148, add to text after n.699:] 

In City of San Diego v. Roe,32 the Court held that a police department could fire a police officer who sold a video on the adultsonly section of eBay that showed him stripping off a police uniform 

and masturbating. The Court found that the officer’s ‘‘expression 

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33 543 U.S. at 84. 34 513 U.S. 454 (1995) (discussed under ‘‘Government as Employer: Political and 

Other Outside Activities,’’ supra). 35 543 U.S. at 84. 36 543 U.S. at 80. 37 126 S. Ct. 1951, 1960 (2006). 38 126 S. Ct. at 1960. 39The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 

(1979), for these points. In Givhan, the Court had upheld the First Amendment 

right of a public school teacher to complain to the school principal about ‘‘employment policies and practices at [the] school which [she] conceived to be racially discriminatory in purpose or effect.’’ Id. at 413. The difference between Givhan and 

Ceballos was apparently that Givhan’s complaints were not made pursuant to her 

job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas 

Ceballos spoke as a government employee. See Ceballos, 126 S. Ct. at 1959. 

does not qualify as a matter of public concern . . . and Pickering 

balancing does not come into play.’’ 33 The Court also noted that 

the officer’s speech, unlike federal employees’ speech in United 

States v. National Treasury Employees Union (NTEU),34 was linked 

to his official status as a police officer, and designed to exploit his 

employer’s image,’’ and therefore ‘‘was detrimental to the mission 

and functions of his employer.’’ 35 Therefore, the Court had ‘‘little 

difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i.e., Pickering or NTEU].’’ 36

This leaves uncertain whether, had the officer’s expression not 

been linked to his official status, the Court would have overruled 

his firing under NTEU or would have upheld it under Pickering on 

the ground that his expression was not a matter of public concern. 

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is 

no protection — Pickering balancing is not to be applied — ‘‘when 

public employees make statements pursuant to their official duties,’’ even if those statements are about matters of public concern.37 In this case, a deputy district attorney had presented his 

supervisor with a memo expressing his concern that an affidavit 

that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that 

he was subjected to retaliatory employment actions, and sued. The 

Supreme Court held ‘‘that when public employees make statements 

pursuant to their official duties, the employees are not speaking as 

citizens for First Amendment purposes, and the Constitution does 

not insulate their communications from employer discipline.’’ 38 The 

fact that the employee’s speech occurred inside his office, and the 

fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.39 Rather, the ‘‘controlling factor’’ was that his expressions 

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40 126 S. Ct. at 1959-60. 41 424 U.S. at 22. 42 424 U.S. at 25 (internal quotation mark omitted). 43 539 U.S. 146 (2003). 44 539 U.S. at 157. 45 540 U.S. 93 (2003). 

were made pursuant to his duties.’’ 40 Therefore, another employee 

in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district 

attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of 

a newspaper. In these two instances, a court would apply Pickering 

balancing. 

—Government as Regulator of the Electoral Process: Elections 

[P. 1156, add to text after first full paragraph on page, and change 

beginning of second paragraph as indicated:] 

The Court in Buckley recognized that political contributions 

‘‘serve[ ] to affiliate a person with a candidate’’ and ‘‘enable[ ] likeminded persons to pool their resources in furtherance of common 

political goals.’’ Contribution ceilings, therefore, ‘‘limit one important means of associating with a candidate or committee. . . .’’ 41

Yet ‘‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to 

avoid unnecessary abridgment of associational freedoms.’’ 42

Applying this standard, the Buckley Court sustained the contribution limitation as imposing . . . . 

[P. 1162, add to text at end of section:] 

In FEC v. Beaumont,43 the Court held that the federal law 

that bars corporations from contributing directly to candidates for 

federal office may constitutionally be applied to nonprofit advocacy 

corporations. Corporations may make such contributions only 

through PACs, and the Court in Beaumont wrote that, in National 

Right to Work, it had ‘‘specifically rejected the argument . . . that 

deference to congressional judgments about proper limits on corporate contributions turns on details of corporate form or the affluence of particular corporations.’’ 44 Though nonprofit advocacy corporations, the Court held in Massachusetts Citizens for Life, have 

a First Amendment right to make independent expenditures, the 

same is not true for direct contributions to candidates. 

In McConnell v. Federal Election Commission,45 the Court 

upheld against facial constitutional challenges key provisions of the 

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46 540 U.S. at 133. 47 540 U.S. at 123. 48 540 U.S. at 204. 49 540 U.S. at 190. 50 540 U.S. at 141. 51 540 U.S. at 136 (internal quotation marks omitted). 52 540 U.S. at 136. 53 540 U.S. at 205. 

Bipartisan Campaign Reform Act of 2002 (BCRA). A majority opinion coauthored by Justices Stevens and O’Connor upheld two major 

provisions of BCRA: (1) the prohibition on ‘‘national party committees and their agents from soliciting, receiving, directing, or spending any soft money,’’ 46 which is money donated for the purpose of 

influencing state or local elections, or for ‘‘mixed-purpose activities 

— including get-out-the-vote drives and generic party advertising,’’ 47 and (2) the prohibition on corporations and labor unions’ 

using funds in their treasuries to finance ‘‘electioneering communications,’’ 48 which BCRA defines as ‘‘any broadcast, cable, or satellite communication’’ that ‘‘refers to a clearly identified candidate 

for Federal Office,’’ made within 60 days before a general election 

or 30 days before a primary election. Electioneering communications thus include both ‘‘express advocacy and so-called issue advocacy.’’ 49

As for the soft-money prohibition on national party committees, the Court applied ‘‘the less rigorous scrutiny applicable to contribution limits.’’ 50 and found it ‘‘closely drawn to match a sufficiently important interest.’’ 51 The Court’s decision to use less rigorous scrutiny, it wrote, ‘‘reflects more than the limited burdens 

they [i.e., the contribution restrictions] impose on First Amendment 

freedoms. It also reflects the importance of the interests that underlie contribution limits — interests in preventing ‘both the actual 

corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.’’’ 52

As for the prohibition on corporations and labor unions’ using 

their general treasury funds to finance electioneering communications, the Court applied strict scrutiny, but found a compelling governmental interest in preventing ‘‘the corrosive and distorting effects of immense aggregations of wealth that are accumulated with 

the help of the corporate form and that have little or no correlation 

to the public’s support for the corporation’s political ideals.’’ 53

These corrosive and distorting effects result both from express advocacy and from so-called issue advocacy. The Court also noted 

that, because corporations and unions ‘‘remain free to organize and 

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54 540 U.S. at 204. 55 126 S. Ct. 2479 (2006). Justice Breyer wrote the plurality opinion, with only 

Chief Justice Roberts joining it in full. Justice Alito joined the opinion as to the contribution limitations but not as to the expenditure limitations. Justice Alito and 

three other Justices concurred in the judgment as to the limitations on both expenditures and contributions, and three Justices dissented. 56 126 S. Ct. at 2492 (citation omitted). 57 126 S. Ct. at 2493 (citation omitted). The plurality noted that, ‘‘in terms of 

real dollars (i.e., adjusting for inflation),’’ they were lower still. Id. 58 126 S. Ct. at 2495. 

administer segregated funds, or PACs,’’ for electioneering communications, the provision was not a complete ban on expression.54

In Randall v. Sorrell, a plurality of the Court struck down a 

Vermont campaign finance statute’s limitations on both expenditures and contributions.55 As for the statute’s expenditure limitations, the plurality found Buckley to control and saw no reason to 

overrule it and no adequate basis upon which to distinguish it. As 

for the statute’s contribution limitations, the plurality, following 

Buckley, considered whether the ‘‘contribution limits prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy’; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to 

survive First Amendment scrutiny.’’ 56 The plurality found that 

they were. Vermont’s limit of $200 per gubernatorial election ‘‘(with 

significantly lower limits for contributions to candidates for State 

Senate and House of Representatives) . . . are well below the limits 

this Court upheld in Buckley,’’ and ‘‘are the lowest in the Nation.’’ 57 But the plurality struck down Vermont’s contribution limits ‘‘based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on 

volunteer activity in Vermont elections.’’ 58

—Government as Investigator: Reporter’s Privilege 

[P. 1165, substitute for n.783:] 

Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the 

Court’s opinion. Justice Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available 

if, in a particular case, ‘‘the newsman is called upon to give information bearing only 

a remote and tenuous relationship to the subject of the investigation, or if he has 

some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.’’ 408 U.S. at 710. Justice 

Stewart’s dissenting opinion in Branzburg referred to Justice Powell’s concurring 

opinion as ‘‘enigmatic.’’ Id. at 725. Judge Tatel of the D.C. Circuit wrote, ‘‘Though 

providing the majority’s essential fifth vote, he [Powell] wrote separately to outline 

a ‘case-by-case’ approach that fits uncomfortably, to say the least, with the 

Branzburg majority’s categorical rejection of the reporters’ claims.’’ In re: Grand 

Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurbjneal on GSDDPC74 with NOTICES

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59 408 U.S. at 706. 60 E.g., Cal. Evid. Code § 1070; N.J. Rev. Stat. §§ 2A:84A-21, -21a, -29. The reported cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr 

v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Rosato 

v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 

U.S. 912 (1976). The greatest difficulty these laws experience, however, is the possibility of a constitutional conflict with the Fifth and Sixth Amendment rights of 

criminal defendants. See Matter of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied 

sub nom. New York Times v. New Jersey, 439 U.S. 997 (1978). See also New York 

Times v. Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay). 61 Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law. 62See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C. 

Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 

F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), 

reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia ‘‘is not of one mind on the existence of a common 

law privilege’’). 

ring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) 

(Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted 

material, 438 F.3d 1141 (D.C. Cir. 2006). 

‘‘[C]ourts in almost every circuit around the country interpreted Justice Powell’s 

concurrence, along with parts of the Court’s opinion, to create a balancing test when 

faced with compulsory process for press testimony and documents outside the grand 

jury context.’’ Association of the Bar of the City of New York, The Federal Common 

Law of Journalists’ Privilege: A Position Paper (2005) at 4-5 [http://www.abcny.org/ 

pdf/report/ White%20paper%20on%20reporters%20 privilege.pdf](citing examples). 

[P. 1165, substitute for paragraph in text that begins ‘‘The Court’’:] 

The Court observed that Congress, as well as state legislatures 

and state courts, are free to adopt privileges for reporters.59 Although efforts in Congress have failed, 49 states have done so — 

33 (plus the District of Columbia) by statute and 16 by court decision, with Wyoming the sole holdout.60 As for federal courts, Federal Rule of Evidence 501 provides that ‘‘the privilege of a witness 

. . . shall be governed by the principles of the common law as they 

may be interpreted by the courts of the United States in the light 

of reason and experience.’’ 61 The federal courts have not resolved 

whether the common law provides a journalists’ privilege.62

—Government as Administrator of Prisons 

[P. 1171, add to n.814:] 

In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court applied Turner to uphold various restrictions on visitation by children and by former inmates, and on all visitation except attorneys and members of the clergy for inmates with two or more substance-abuse violations; an inmate subject to the latter restriction could apply for 

reinstatement of visitation privileges after two years. ‘‘If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied 

in an arbitrary manner to a particular inmate, the case would present different considerations.’’ Id. at 137. 

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63 482 U.S. at 89. 64 Beard v. Banks,126 S. Ct. 2572, 2578 (2006) (citations and internal quotation 

marks omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 

89-90). 65 490 U.S. 401, 411-14 (1989). Thornburgh v. Abbott noted that, if regulations 

deny prisoners publications on the basis of their content, but the grounds on which 

the regulations do so is content-neutral, e.g., to protect prison security), then the 

regulations will be deemed neutral. Id. at 415-16. 66 126 S. Ct. 2572, 2575 (2006). This was a 4-2-2 decision, with Justice Alito, 

who had written the court of appeals decision, not participating. 67 126 S. Ct. at 2579. 

[P. 1171: substitute in text for material between n.814 and n.817:] 

Four factors ‘‘are relevant in determining the reasonableness of a 

regulation at issue.’’ 63 ‘‘First, is there a valid, rational connection 

between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means 

of exercising the right that remain open to prison inmates? Third, 

what impact will accommodation of the asserted constitutional 

right . . . have on guards and other inmates, and on the allocation 

of prison resources generally? And, fourth, are ready alternatives 

for furthering the governmental interest available?’’ 64 Two years 

after Turner v. Safley, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to the regulation of outgoing correspondence, finding that the needs of prison security justify a 

more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence 

from other prisoners, correspondence from nonprisoners, or outside 

publications.65

In Beard v. Banks, a plurality of the Supreme Court upheld ‘‘a 

Pennsylvania prison policy that ‘denies newspapers, magazines, 

and photographs’ to a group of specially dangerous and recalcitrant 

inmates.’’ 66 These inmates were housed in Pennsylvania’s Long 

Term Segregation Unit and one of the prison’s penological rationales for its policy, which the plurality found to satisfy the four 

Turner factors, was to motivate better behavior on the part of the 

prisoners by providing them with an incentive to move back to the 

regular prison population.67 Applying the four Turner factors to 

this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines 

and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was ‘‘not ‘conclusive’ of the reasonableness of the 

Policy’’; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would ‘‘fully 

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68 126 S. Ct. at 2579-2580. 

69 126 S. Ct. at 2580. 

70 126 S. Ct. at 2582-2583 (Thomas, J., concurring), quoting Overton v. 

Bazzetta, 539 U.S. at 139 (Thomas, J., concurring) (emphasis originally in Overton). 

71 539 U.S. 194, 199 (2003). 

72 539 U.S. at 211. 

logical interests.’’ 68 The plurality believed that its ‘‘real task in this 

case is not balancing these factors, but rather determining whether 

the Secretary shows more than simply a logical relation, that is, 

whether he shows a reasonable relation’’ between the Policy and legitimate penological objections, as Turner requires.69 The plurality 

concluded that he had. Justices Thomas and Scalia concurred in 

the result but would do away with Turner factors because they believe that ‘‘States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of 

deprivation — provided only that those deprivations are consistent 

with the Eighth Amendment.70

—Government and Power of the Purse 

[P. 1176, add to text at end of section:] 

In United States v. American Library Association, Inc., a fourjustice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, 

provides that a public school or ‘‘library may not receive federal assistance to provide Internet access unless it installs software to 

block images that constitute obscenity or child pornography, and to 

prevent minors from obtaining access to material that is harmful 

to them.’’ 71 The plurality considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance by requiring public libraries (public schools were not involved in the 

case) to limit their freedom of speech if they accept federal funds. 

The plurality, citing Rust v. Sullivan, found that, assuming that 

government entities have First Amendment rights (it did not decide 

the question), CIPA does not infringe them. This is because CIPA 

does not deny a benefit to libraries that do not agree to use filters; 

rather, the statute ‘‘simply insist[s] that public funds be spent for 

the purposes for which they were authorized.’’ 72 The plurality distinguished Legal Services Corporation v. Velazquez on the ground 

that public libraries have no role comparable to that of legal aid 

attorneys ‘‘that pits them against the Government, and there is no 

comparable assumption that they must be free of any conditions 

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73 539 U.S. at 213 (emphasis in original). Other grounds for the plurality decision are discussed under ‘‘Non-obscene But Sexually Explicit and Indecent Expression’’ and ‘‘Internet as Public Forum.’’ 74 126 S. Ct. 1297, 1302 (2006). 75 126 S. Ct. at 1307. The Court stated that Congress’ authority to directly require campus access for military recruiters comes from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide 

and maintain a navy. 126 S. Ct. at 1306. 76 126 S. Ct. at 1307. 77 126 S. Ct. at 1310. 78 126 S. Ct. at 1311. 

that their benefactors might attach to the use of donated funds or 

other assistance.’’ 73

In Rumsfeld v. Forum for Academic and Institutional Rights, 

Inc., the Supreme Court upheld the Solomon Amendment, which 

provides that, in the Court’s summary, ‘‘if any part of an institution of higher education denies military recruiters access equal to 

that provided other recruiters, the entire institution would lose certain federal funds.’’ 74 FAIR, the group that challenged the Solomon 

Amendment, is an association of law schools that barred military 

recruiting on their campuses because of the military’s discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools 

to choose between enforcing their nondiscrimination policy against 

military recruiters and continuing to receive specified federal funding. The Court concluded: ‘‘Because the First Amendment would 

not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.’’ 75 The Court 

found that ‘‘[t]he Solomon Amendment neither limits what law 

schools may say nor requires them to say anything. . . . It affects 

what law schools must do — afford equal access to military recruiters — not what they may or may not say.’’ 76 The law schools’ conduct in barring military recruiters, the Court found, ‘‘is not inherently expressive,’’ and, therefore, unlike flag burning, for example, 

is not ‘‘symbolic speech.’’ 77 Applying the O’Brien test for restrictions on conduct that have an incidental effect on speech, the Court 

found that the Solomon Amendment clearly ‘‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’’ 78

The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government’s message. As for compelling speech, law 

schools must ‘‘send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. . . . This sort of recruiting assistance, however, is a far cry from the compelled speech 

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79 126 S. Ct. at 1308. 80 126 S. Ct. at 1309. 81 126 S. Ct. at 1310. 82 126 S. Ct. at 1312, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 

(2000). 83 126 S. Ct. at 1312. 

in Barnette and Wooley. . . . [It] is plainly incidental to the Solomon 

Amendment’s regulation of conduct.’’ 79 As for forcing one speaker 

to host or accommodate another, ‘‘[t]he compelled-speech violation 

in each of our prior cases . . . resulted from the fact that the complaining speaker’s own message was affected by the speech it was 

forced to accommodate.’’ 80 By contrast, the Court wrote, ‘‘Nothing 

about recruiting suggests that law schools agree with any speech 

by recruiters, and nothing in the Solomon Amendment restricts 

what the law schools may say about the military’s policies.’’ 81 Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to 

accept a homosexual scoutmaster, and that the Supreme Court 

struck down as violating the Boy Scouts’ ‘‘right of expressive association.’’ 82 Recruiters, unlike the scoutmaster, are ‘‘outsiders who 

come onto campus for the limited purpose of trying to hire students 

— not to become members of the school’s expressive association.’’ 83

Government Regulation of Communications Industries 

—Commercial Speech 

[P. 1179, add to n.862:] 

In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. dismissed, 539 U.S. 654 (2003), 

Nike was sued for unfair and deceptive practices for allegedly false statements it 

made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certioriari, but then dismissed it as improvidently granted, 

with a concurring and two dissenting opinions. The issue left undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared 

in press releases and letters rather than in advertisements for its products, should 

be deemed ‘‘‘commercial speech’ because they might affect consumers’ opinions about 

the business as a good corporate citizen and thereby affect their purchasing decisions.’’ Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit. 

Government Restraint of Content of Expression 

—Group Libel, Hate Speech 

[P. 1206, add new paragraph at end of section:] 

In Virginia v. Black, the Court held that its opinion in R.A.V. 

did not make it unconstitutional for a state to prohibit burning a 

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84 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as ‘‘a burning cross is not always intended to intimidate,’’ but may constitute a constitutionally protected expression of 

opinion. 538 U.S. at 365-66. 85 538 U.S. at 362-63. 86 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote 

that blocking and filtering software is not a less restrictive alternative because ‘‘it 

is part of the status quo’’ and ‘‘[i]t is always less restrictive to do nothing than to 

do something.’’ Id. at 684. In addition, Breyer asserted, ‘‘filtering software depends 

upon parents willing to decide where their children will surf the Web and able to 

enforce that decision.’’ Id. The majority opinion countered that Congress ‘‘may act 

to encourage the use of filters,’’ and ‘‘[t]he need for parental cooperation does not 

automatically disqualify a proposed less restrictive alternative.’’ Id. at 669. 87 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 

2007). 

sons.84 Such a prohibition does not discriminate on the basis of a 

defendant’s beliefs — ‘‘as a factual matter it is not true that cross 

burners direct their intimidating conduct solely to racial or religious minorities. . . . The First Amendment permits Virginia to outlaw cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead 

of prohibiting all intimidating messages, Virginia may choose to 

regulate this subset of intimidating messages. . . .’’ 85

—Non-obscene but Sexually Explicit and Indecent Expression 

[P. 1234. add to text after n.1254:] 

Upon remand, the Third Circuit again upheld the preliminary 

injunction, and the Supreme Court affirmed and remanded the case 

for trial. The Supreme Court found that the district court had not 

abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives 

to COPA would not be as effective in accomplishing its goal. The 

primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because 

‘‘[t]hey impose selective restrictions on speech at the receiving end, 

not universal restriction at the source.’’ 86 Subsequently, a federal 

district court issued a permanent injunction against the enforcement of COPA.87

In United States v. American Library Association, a four-justice 

plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides 

that a public school or ‘‘library may not receive federal assistance 

to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent 

minors from obtaining access to material that is harmful to 

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88 539 U.S. 194, 199 (2003). 89 539 U.S. at 203. 90 539 U.S. at 205. 91 539 U.S. at 208. 92 539 U.S. at 209. Justice Kennedy, concurring, noted that, ‘‘[i]f some libraries 

do not have the capacity to unblock specific Web sites or to disable the filter . . . 

that would be the subject for an as-applied challenge, not the facial challenge made 

in this case.’’ Id. at 215. Justice Souter, dissenting, noted that ‘‘the statute says only 

that a library ‘may’ unblock, not that it must.’’ Id. at 233. 93 539 U.S. at 212. 94 539 U.S. 194, 205 (2003). 

them.’’ 88 The plurality asked ‘‘whether libraries would violate the 

First Amendment by employing the filtering software that CIPA requires.’’ 89 Does CIPA, in other words, effectively violate library patrons’ rights? The plurality concluded that it does not, after finding 

that ‘‘Internet access in public libraries is neither a ‘traditional’ nor 

a ‘designated’ public forum,’’ and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering 

requirements are constitutional.90

The plurality acknowledged ‘‘the tendency of filtering software 

to ‘overblock’ — that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.’’ 91 It found, however, that, ‘‘[a]ssuming 

that such erroneous blocking presents constitutional difficulties, 

any such concerns are dispelled by the ease with which patrons 

may have the filtering software disabled.’’ 92

The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance — in other 

words, does it violate public libraries’ rights by requiring them to 

limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First 

Amendment rights (it did not decide the question), ‘‘CIPA does not 

‘penalize’ libraries that choose not to install such software, or deny 

them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing so.’’ 93

Speech Plus — The Constitutional Law of Leafleting, Picketing, and 

Demonstrating 

—The Public Forum 

[P. 1245, substitute for final paragraph of section:] 

In United States v. American Library Association, Inc., a fourjustice plurality of the Supreme Court found that ‘‘Internet access 

in public libraries is neither a ‘traditional’ nor a ‘designated’ public 

forum.’’ 94 The plurality therefore did not apply ‘‘strict scrutiny’’ in 

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52 AMENDMENT 1—RELIGION, FREE SPEECH, ETC 

95 539 U.S. at 199. 96 539 U.S. at 206. 97 539 U.S. at 206 (citation omitted). 98 A federal court of appeals wrote: ‘‘Aspects of cyberspace may, in fact, fit into 

the public forum category, although the Supreme Court has also suggested that the 

category is limited by tradition. Compare Forbes, 523 U.S. at 679 (’’reject[ing] the 

view that traditional public forum status extends beyond its historic confines‘‘ [to 

a public television station]) with Reno v. ACLU, 521 U.S. 844, 851-53 (1997) (recognizing the communicative potential of the Internet, specifically the World Wide 

Web).’’ Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 2000) (alternate citations to Forbes and Reno omitted). 

upholding the Children’s Internet Protection Act, which, as the plurality summarized it, provides that a public school or ‘‘library may 

not receive federal assistance to provide Internet access unless it 

installs software to block images that constitute obscenity or child 

pornography, and to prevent minors from obtaining access to material that is harmful to them.’’ 95 The plurality found that Internet 

access in public libraries is not a ‘‘traditional’’ public forum because 

‘‘[w]e have ‘rejected the view that traditional public forum status 

extends beyond its historical confines.’’’ 96 And Internet access at 

public libraries is not a ‘‘designated’’ public forum because ‘‘[a] public library does not acquire Internet terminals in order to create a 

public forum for Web publishers to express themselves, any more 

than it collects books in order to provide a public forum for the authors of books to speak. It provides Internet access, not to ‘encourage a diversity of views from private speakers,’ but for the same 

reasons it offers other library resources: to facilitate research, 

learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.’’ 97

Nevertheless, although Internet access in public libraries is not 

a public forum, and particular Web sites, like particular newspapers, would not constitute public fora, the Internet as a whole 

might be viewed as a public forum, despite its lack of a historic tradition. The Supreme Court has not explicitly held that the Internet 

as a whole is a public forum, but, in Reno v. ACLU, which struck 

down the Communications Decency Act’s prohibition of ‘‘indecent’’ 

material on the Internet, the Court noted that the Internet ‘‘constitutes a vast platform from which to address and hear from a 

worldwide audience of millions of readers, viewers, researchers, 

and buyers. Any person or organization with a computer connected 

to the Internet can ‘publish’ information.’’ 98

—Door-to-Door Solicitation 

[P. 1262, add to n.1312:] 

In Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003), the Court 

held unanimously that the First Amendment does not prevent a state from bringing 

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fraud actions against charitable solicitors who falsely represent that a ‘‘significant’’ 

amount of each dollar donated would be used for charitable purposes. 

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55 

FOURTH AMENDMENT 

SEARCH AND SEIZURE 

History and Scope of the Amendment 

—Scope of the Amendment 

[P. 1285, add to n.22:] 

Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006) (warrantless entry into a home 

when police have an objectively reasonable basis for believing that an occupant is 

seriously injured or imminently threatened with such injury). 

—The Interest Protected 

[P. 1291, add to n.53 after citation to Steagald v. United States:] 

Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam). 

—Arrests and Other Detentions 

[P. 1292, add to n.61 after citation to Terry v. Ohio:] 

Kaupp v. Texas, 538 U.S. 626 (2003). 

[P. 1293, add new footnote after ‘‘person,’’ in second line on page:] 

The justification must be made to a neutral magistrate, not to the arrestee. There 

is no constitutional requirement that an officer inform an arrestee of the reason for 

his arrest. Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense for which 

there is probable cause to arrest need not be closely related to the offense stated 

by the officer at the time of arrest). 

[P. 1294, add to n.69 after citation to Taylor v. Alabama:] 

Kaupp v. Texas, 538 U.S. 626 (2003). 

Searches and Seizures Pursuant to Warrant 

—Probable Cause 

[P. 1301, add to n. 101:] 

An ‘‘anticipatory’’ warrant does not violate the Fourth Amendment as long as there 

is probable cause to believe that the condition precedent to execution of the search 

warrant will occur and that, once it has occurred, ‘‘there is a fair probability that 

contraband or evidence of a crime will be found in a specified place.’’ United States 

v. Grubbs, 126 S. Ct. 1494, 1499, 1500 (2006), quoting Illinois v. Gates, 462 U.S. 

213, 238 (1983). ‘‘An anticipatory warrant is ‘a warrant based upon an affidavit 

showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place.’’’ 126 S. Ct. at 1498. 

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56 AMENDMENT 4—SEARCHES AND SEIZURES 

1Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did 

not describe the items to be seized was ‘‘plainly invalid’’; particularity contained in 

supporting documents not cross-referenced by the warrant and not accompanying 

the warrant is insufficient). United States v. Grubbs, 126 S. Ct. 1494, 1500-01 

(2006) (because the language of the Fourth Amendment ‘‘specifies only two matters 

that must be ‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and 

‘the persons or things to be seized[,]’ . . . the Fourth Amendment does not require 

that the triggering condition for an anticipatory warrant be set forth in the warrant 

itself.’’ 

2 United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after 

officers executing a warrant to search for drugs knocked, announced ‘‘police search 

warrant,’’ and waited 15-20 seconds with no response). 

3Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (also upholding questioning the 

handcuffed detainee about her immigration status). 

—Particularity 

[P. 1304, add to text at end of section:] 

The purpose of the particularity requirement extends beyond prevention of general searches; it also assures the person whose property is being searched of the lawful authority of the executing officer and of the limits of his power to search. It follows, therefore, 

that the warrant itself must describe with particularity the items 

to be seized, or that such itemization must appear in documents incorporated by reference in the warrant and actually shown to the 

person whose property is to be searched.1

—Execution of Warrants 

[P. 1311, add to text after n.168:] 

Similarly, if officers choose to knock and announce before searching 

for drugs, circumstances may justify forced entry if there is not a 

prompt response.2

[P. 1312, add to n.173:] 

But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis 

that passengers in car often have ‘‘common enterprise,’’ and noting that the tip in 

Di Re implicated only the driver). 

[P. 1312, add to text after n.175:] 

For the same reasons, officers may use ‘‘reasonable force,’’ including handcuffs, to effectuate a detention.3

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4 Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). 

5 542 U.S. at 186. 

Valid Searches and Seizures Without Warrants 

—Detention Short of Arrest: Stop-and-Frisk 

[P. 1315, add to text after first sentence of paragraph that begins on 

page, and begin new paragraph with second sentence, as indicated:] 

The Court provided a partial answer in 2004, when it upheld a 

state law that required a suspect to disclose his name in the course 

of a valid Terry stop.4 Questions about a suspect’s identity ‘‘are a 

routine and accepted part of many Terry stops,’’ the Court explained.5

After Terry, the standard for stops . . . . 

[P. 1318, add to n.208:] 

See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold 

a bus search in which one officer stationed himself in the front of the bus and one 

in the rear, while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his 

traveling companion, the defendant had consented to the search of his person. 

[P. 1319, add to n.213:] 

Cf. Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of 

a car following a routine traffic stop does not offend the Fourth Amendment if the 

duration of the stop is justified by the traffic offense). 

—Vehicular Searches 

[P. 1324, add to n.244 after parenthetical that ends with ‘‘Mexican 

ancestry’’:] 

But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable suspicion justified 

stop by border agents of vehicle traveling on unpaved backroads in an apparent effort to evade a border patrol checkpoint on the highway). 

[P. 1325, add to n.247:] 

See also United States v. Flores-Montano, 541 U.S. 149 (2004) (upholding a search 

at the border involving disassembly of a vehicle’s fuel tank). 

[P. 1325, add to n.248:] 

Edmond was distinguished in llinois v. Lidster, 540 U.S. 419 (2004), upholding use 

of a checkpoint to ask motorists for help in solving a recent hit-and-run accident 

that had resulted in death. The public interest in solving the crime was deemed 

‘‘grave,’’ while the interference with personal liberty was deemed minimal. 

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58 AMENDMENT 4—SEARCHES AND SEIZURES 

6Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passengers 

based on officers finding $783 in glove compartment and cocaine hidden beneath 

back seat armrest, and on driver and passengers all denying ownership of the cocaine). 7Georgia v. Randolph, 126 S. Ct. 1515 (2006) (warrantless search of a defendant’s residence based on his estranged wife’s consent was unreasonable and invalid 

as applied to a physically present defendant who expressly refused to permit entry). 

The Court in Randolph admitted that it was ‘‘drawing a fine line,’’ id. at 1527, between situations where the defendant is present and expressly refuses consent, and 

that of United States v. Matlock, 415 U.S. 164, 171 (1974), and Illinois v. Rodriguez, 

497 U.S. 177 (1990), where the defendants were nearby but were not asked for their 

permission. In a dissenting opinion, Chief Justice Roberts observed that the majority’s ruling ‘‘provides protection on a random and happenstance basis, protecting, for 

example, a co-occupant who happens to be at the front door when the other occupant 

consents to a search, but not one napping or watching television in the next room.’’ 

Id. at 1531. 

[P. 1325, add to n.250:] 

And, because there also is no legitimate privacy interest in possessing contraband, 

and because properly conducted canine sniffs are ‘‘generally likely, to reveal only the 

presence of contraband,’’ police may conduct a canine sniff around the perimeter of 

a vehicle stopped for a traffic offense. Illinois v. Caballes, 543 U.S. 405, 409 (2005). 

[P. 1325, add to n.252 after citation to New York v. Belton:] 

Thornton v. United States, 541 U.S. 615 (2004) (the Belton rule applies regardless 

of whether the arrestee exited the car at the officer’s direction, or whether he did 

so prior to confrontation); 

[P. 1326, add to end of sentence containing n.258:] 

, or unless there is individualized suspicion of criminal activity 

by the passengers.6

—Consent Searches 

[P. 1328, add to n. 271:] 

United States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated that bus passenger consented to search even though officer did not explicitly 

state that passenger was free to refuse permission). 

[P. 1329, add to text at end of section:] 

If, however, one occupant consents to a search of shared premises, 

but a physically present co-occupant expressly objects to the search, 

the search is unreasonable.7

—Border Searches 

[P. 1330, add to n.283 after citation to United States v. Cortez:] 

, and United States v. Arvizu, 534 U.S. 266 (2002) 

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8 United States v. Knights, 534 U.S. 112 (2005) (probationary status informs 

both sides of the reasonableness balance). 9Samson v. California, 126 S. Ct. 2193, 2198 (2006). 

10 126 S. Ct. at 2199. The parole condition at issue in Samson required prisoners to ‘‘agree in writing to be subject to a search or seizure by a parole officer 

or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.’’ Id. at 2196, quoting Cal. Penal Code Ann. 

§ 3067(a). 11 536 U.S. 822 (2002). 12 536 U.S. at 831. 13 536 U.S. at 831 14 536 U.S. at 836. 

—Prisons and Regulation of Probation 

[P. 1333, change heading to ‘‘Prisons and Regulation of Probation 

and Parole’’] 

[P. 1334, add to text at end of section:] 

A warrant is also not required if the purpose of a search of a probationer is investigate a crime rather than to supervise probation.8

‘‘[O]n the ‘continuum’ of state-imposed punishments . . . , parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.’’ 9 The Fourth Amendment, therefore, is not violated by 

a warrantless search of a parolee that is predicated upon a parole 

condition to which a prisoner agreed to observe during the balance 

of his sentence.10

—Drug Testing 

[P. 1336, add to text after n.322:] 

Seven years later, the Court in Board of Education v. Earls 11

extended Vernonia to uphold a school system’s drug testing of all 

junior high and high school students who participated in extra-curricular activities. The lowered expectation of privacy that athletes 

have ‘‘was not essential’’ to the decision in Vernonia, Justice Thomas wrote for a 5-4 Court majority.12 Rather, that decision ‘‘depended primarily upon the school’s custodial responsibility and authority.’’ 13 Another distinction was that, although there was some 

evidence of drug use among the district’s students, there was no 

evidence of a significant problem, as there had been in Vernonia. 

Rather, the Court referred to ‘‘the nationwide epidemic of drug 

use,’’ and stated that there is no ‘‘threshold level’’ of drug use that 

need be present.14 Because the students subjected to testing in 

Earls had the choice of not participating in extra-curricular activities rather than submitting to drug testing, the case stops short of 

holding that public school authorities may test all junior and senior 

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60 AMENDMENT 4—SEARCHES AND SEIZURES 

15Drug testing was said to be a ‘‘reasonable’’ means of protecting the school 

board’s ‘‘important interest in preventing and deterring drug use among its students,’’ and the decision in Vernonia was said to depend ‘‘primarily upon the school’s 

custodial responsibility and authority.’’ 536 U.S. at 838, 831. 16 Concurring Justice Breyer pointed out that the testing program ‘‘preserves an 

option for a conscientious objector,’’ who can pay a price of nonparticipation that is 

‘‘serious, but less severe than expulsion.’’ 536 U.S. at 841. Dissenting Justice Ginsburg pointed out that extracurricular activities are ‘‘part of the school’s educational 

program’’ even though they are in a sense ‘‘voluntary.’’ ‘‘Voluntary participation in 

athletics has a distinctly different dimension’’ because it ‘‘expose[s] students to physical risks that schools have a duty to mitigate.’’ Id. at 845, 846. 17 536 U.S. at 831-32. The best the Court could do to support this statement was 

to assert that ‘‘some of these clubs and activities require occasional off-campus travel and communal undress,’’ to point out that all extracurricular activities ‘‘have their 

own rules and requirements,’’ and to quote from general language in Vernonia. Id. 

Dissenting Justice Ginsburg pointed out that these situations requiring change of 

clothes on occasional out-of-town trips are ‘‘hardly equivalent to the routine communal undress associated with athletics.’’ Id. at 848. 18The ‘‘knock and announce’’ requirement is codified at 18 U.S.C. § 3109, and 

the Court has held that the rule is also part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995). 19 Hudson v. Michigan, 126 S. Ct. 2159 (2006). Writing for the majority, Justice 

Scalia explained that the exclusionary rule was inappropriate because the purpose 

of the knock-and-announce requirement was to protect human life, property, and the 

homeowner’s privacy and dignity; the requirement has never protected an individual’s interest in preventing seizure of evidence described in a warrant. Id. at 2165. 

high school students for drugs. Thus, although the Court’s rationale seems broad enough to permit across-the-board testing,15 Justice Breyer’s concurrence, emphasizing among other points that 

‘‘the testing program avoids subjecting the entire school to testing,’’ 16 raises some doubt on this score. The Court also left another 

basis for limiting the ruling’s sweep by asserting that ‘‘regulation 

of extracurricular activities further diminishes the expectation of 

privacy among schoolchildren.’’ 17

Enforcing the Fourth Amendment: The Exclusionary Rule 

—Alternatives to the Exclusionary Rule 

[P. 1344, add to n.361 after citation to Saucier v. Katz:] 

See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a ‘‘hazy 

border between excessive and acceptable force,’’ an officer’s misunderstanding as to 

her authority to shoot a suspect attempting to flee in a vehicle was not unreasonable). 

—Narrowing Application of the Exclusionary Rule 

[P. 1354, add to text after n.409:] 

In addition, a violation of the ‘‘knock-and-announce’’ procedure that 

police officers must follow to announce their presence before entering a residence with a lawful warrant 18 does not require suppression of the evidence gathered pursuant to the warrant.19

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Furthermore, the Court believed that the ‘‘substantial social costs’’ of applying the 

exclusionary rule would outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The Court also reasoned that other means of deterrence, 

such as civil remedies, were available and effective, and that police forces have become increasingly professional and respectful of constitutional rights in the past 

half-century. Id. at 2168. Justice Kennedy wrote a concurring opinion emphasizing 

that ‘‘the continued operation of the exclusionary rule . . . is not in doubt.’’ Id. at 

2170. In dissent, Justice Breyer asserted that the majority’s decision ‘‘weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce 

protection.’’ Id. at 2171. 

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1 United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting 

a federal officer after tribal conviction for ‘‘violence to a policeman’’). The Court concluded that Congress has power to recognize tribal sovereignty to prosecute nonmember Indians, that Congress had done so, and that consequently the tribal prosecution was an exercise of tribal sovereignty, not an exercise of delegated federal 

power on which a finding of double jeopardy could be based. 2 United States v. Martin Linen Supply Co., 430 U.S. 564, 570-72 (1977); 

Sanabria v. United States, 437 U.S. 54, 63-65 (1978); Finch v. United States, 433 

U.S. 676 (1977). 3 In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged 

that the trial judge’s action in acquitting was ‘‘based upon an egregiously erroneous 

foundation,’’ but it was nonetheless final and could not be reviewed. Id. at 143. 4 As a general rule a state may prescribe that a judge’s midtrial determination 

of the sufficiency of the prosecution’s proof may be reconsidered. Smith v. Massachusetts, 543 U.S. 462 (2005) (Massachusetts had not done so, however, so the judge’s 

FIFTH AMENDMENT 

DOUBLE JEOPARDY 

Development and Scope 

[P. 1370, add to end of sentence containing n.58:] 

, and to permit a federal prosecution after a conviction in an 

Indian tribal court for an offense stemming from the same conduct.1

Reprosecution Following Conviction 

—Sentence Increases 

[P. 1385, add to n.134:] 

But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death 

penalty in a retrial when defendant appealed following discharge of the sentencing 

jury under a statute authorizing discharge based on the court’s ‘‘opinion that further 

deliberation would not result in a unanimous agreement as to the sentence, in 

which case the court shall sentence the defendant to life imprisonment’’). 

Reprosecution Following Acquittal 

—Acquittal by the Trial Judge 

[P. 1379, substitute for first paragraph of section:] 

When a trial judge acquits a defendant, that action concludes 

the matter to the same extent that acquittal by jury verdict does.2

There is no possibility of retrial for the same offense.3 But it may 

be difficult at times to determine whether the trial judge’s action 

was in fact an acquittal or whether it was a dismissal or some 

other action, which the prosecution may be able to appeal or the 

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64 AMENDMENT 5—RIGHTS OF PERSONS 

midtrial acquittal on one of three counts became final for double jeopardy purposes 

when the prosecution rested its case). 5 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 

6 430 U.S. at 570-76. See also United States v. Scott, 437 U.S. 82, 87-92 (1978); 

Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency of evidence is acquittal). 7 437 U.S. 54 (1978). 

8See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on erroneous interpretation of precedent). 9 Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought by 

suspect interrogated in hospital but not prosecuted). 

ing of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’’ 5 Thus, an appeal by the Government was held 

barred in a case in which the deadlocked jury had been discharged, 

and the trial judge had granted the defendant’s motion for a judgment of acquittal under the appropriate federal rule, explicitly 

based on the judgment that the Government had not proved facts 

constituting the offense.6 Even if, as happened in Sanabria v. 

United States,7 the trial judge erroneously excludes evidence and 

then acquits on the basis that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final 

and unreviewable.8

SELF-INCRIMINATION 

Development and Scope 

[P. 1396, add to text following n.185:] 

, and there can be no valid claim if there is no criminal prosecution.9

Confessions: Police Interrogation, Due Process, and Self-Incrimination 

—Miranda v. Arizona 

[P. 1425, add to n.340:] 

Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court determination that teenager brought to police station by his parents was not ‘‘in custody’’ was not ‘‘unreasonable’’ for purposes of federal habeas review). 

[P. 1429, add to n.363:] 

Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600 (2004), however, when 

the failure to warn prior to the initial questioning was a deliberate attempt to circumvent Miranda by use of a two-step interrogation technique, and the police, prior 

to eliciting the statement for the second time, did not alert the suspect that the first 

statement was likely inadmissible. 

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10 United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, described as a ‘‘nontestimonial fruit’’ of an unwarned statement). See also Michigan v. Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant’s statement elicited without proper Miranda warning). Note too that confessions 

may be the poisonous fruit of other constitutional violations, such as illegal searches 

or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 

U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). 11See discussion under Art. I, § 8, cl. 4, ‘‘The Power of Congress to Exclude 

Aliens.’’ 12 538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be 

‘‘no longer practically attainable,’’ and detention therefore ‘‘no longer [bore] a reasonable relation to the purpose for which the individual was committed.’’ 538 U.S. 

at 527. 

[P. 1429, add to n.365:] 

See also Harrison v. United States, 392 U.S. 219 (1968) (rejecting as tainted the 

prosecution’s use at the second trial of defendant’s testimony at his first trial rebutting confessions obtained in violation of McNabb-Mallory). 

[P. 1429, substitute for clause containing n.367:] 

On the other hand, the ‘‘fruits’’ of such an unwarned confession or 

admission may be used in some circumstances if the statement was 

voluntary.10

DUE PROCESS 

Procedural Due Process 

—Aliens: Entry and Deportation 

[P. 1443, add as first sentence of section:] 

The Court has frequently said that Congress exercises ‘‘sovereign’’ or ‘‘plenary’’ power over the substance of immigration law, 

and this power is at its greatest when it comes to exclusion of 

aliens.11

[P. 1444, add as first sentence of only paragraph beginning on page:] 

Procedural due process rights are more in evidence when it 

comes to deportation or other proceedings brought against aliens 

already within the country. 

[P. 1445, add to text following n.444:] 

In Demore v. Kim,12 however, the Court indicated that its holding in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a determination of removability, the Court reaffirmed Congress’ broad powers over 

aliens. ‘‘[W]hen the Government deals with deportable aliens, the 

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66 AMENDMENT 5—RIGHTS OF PERSONS 

13 538 U.S. at 528. There was disagreement among the Justices as to whether 

existing procedures afforded the alien an opportunity for individualized determination of danger to society and risk of flight. 

14 542 U.S. 507 (2004). 

15 In response to the September 11, 2001, terrorist attacks on New York City’s 

World Trade Center and the Pentagon in Washington, D.C., Congress passed the 

‘‘Authorization for Use of Military Force,’’ Pub. L. 107-40, 115 Stat. 224 (2001), 

which served as the basis for military action against the Taliban government of Afghanistan and the al Qaeda forces that were harbored there. 

16There was no opinion of the Court in Hamdi. Rather, a plurality opinion, authored by Justice O’Connor (joined by Chief Justice Rehnquist, Justice Kennedy and 

Justice Breyer) relied on the statutory ‘‘Authorization for Use of Military Force’’ to 

support the detention. Justice Thomas also found that the Executive Branch had the 

power to detain the petitioner, but he based his conclusion on Article II of the Constitution. 

17 542 U.S. 533, 539 (2004). Although only a plurality of the Court voted for 

both continued detention of the petitioner and for providing these due process 

rights, four other Justices would have extended due process at least this far. Justice 

Souter, joined by Justice Ginsberg, while rejecting the argument that Congress had 

authorized such detention, agreed with the plurality as to the requirement of providing minimal due process. Id. at 553 (concurring in part, dissenting in part, and 

concurring in judgement). Justice Scalia, joined by Justice Stevens, denied that such 

congressional authorization was possible without a suspension of the writ of habeas 

corpus, and thus would have required a criminal prosecution of the petitioner. Id. 

at 554 (dissenting). 

Due Process Clause does not require it to employ the least burdensome means to accomplish its goal.’’ 13

—Judicial Review of Administrative or Military Proceedings 

[P. 1446, add new paragraph after only full paragraph on page:] 

Failure of the Executive Branch to provide for any type of proceeding for prisoners alleged to be ‘‘enemy combatants,’’ whether in 

a military tribunal or a federal court, was at issue in Hamdi v. 

Rumsfeld.14 During a military action in Afghanistan,15 a United 

States citizen, Yaser Hamdi, was taken prisoner. The Executive 

Branch argued that it had authority to detain Hamdi as an ‘‘enemy 

combatant,’’ and to deny him meaningful access to the federal 

courts. The Court agreed that the President was authorized to detain a United States citizen seized in Afghanistan.16 However, the 

Court ruled that the Government may not detain the petitioner indefinitely for purposes of interrogation, but must give him the opportunity to offer evidence that he is not an enemy combatant. At 

a minimum, the petitioner must be given notice of the asserted factual basis for holding him, must be given a fair chance to rebut 

that evidence before a neutral decision maker, and must be allowed 

to consult an attorney.17

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18 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. 

at 242 n.2 (Justice Scalia dissenting). 19 125 S. Ct. 2665 (2005). 20 125 S. Ct. at 2667. 21Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and 

Chief Justice Rehnquist. 22 125 S. Ct. at 2675. 

NATIONAL EMINENT DOMAIN POWER 

Public Use 

[P. 1464, add new footnote on line 3 after ‘‘determination.’’:] 

Kelo v. City of New London, 125 S. Ct. 2655, 2664 (2005). The taking need only be 

‘‘rationally related to a conceivable public purpose.’’ Id. at 2669 (Justice Kennedy 

concurring). 

[P. 1465, add to text after n.575:] 

Subsequently, the Court put forward an added indicium of ‘‘public 

use’’: whether the government purpose could be validly achieved by 

tax or user fee.18

[P. 1466, add new footnote at end of sentence beginning ‘‘For ‘public 

use’’’:] 

Most recently, the Court equated public use with ‘‘public purpose.’’ Kelo v. City of 

New London, 125 S. Ct. 2655, 2662 (2005). 

[P. 1466, add new paragraph to text at end of section:] 

The expansive interpretation of public use in eminent domain 

cases may have reached its outer limit in Kelo v. City of New London.19 There, a five-justice majority upheld as a public use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered, areawide redevelopment plan adopted by a municipality to invigorate a depressed 

economy. The Court saw no principled way to distinguish economic 

development from the economic purposes endorsed in Berman and 

Midkiff, and stressed the importance of judicial deference to the 

legislative judgment as to public needs. At the same time, the 

Court cautioned that private-to-private condemnations of individual 

properties, not part of an ‘‘integrated development plan . . . raise 

a suspicion that a private purpose [is] afoot.’’ 20 A vigorous four-justice dissent countered that localities will always be able to manufacture a plausible public purpose, so that the majority opinion 

leaves the vast majority of private parcels subject to condemnation 

when a higher-valued use is desired.21 Backing off from the Court’s 

past endorsements in Berman and Midkiff of a public use/police 

power equation, the dissenters asserted that such was ‘‘errant language’’ that was ‘‘unnecessary’’ to the holdings of those decisions.22

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23 544 U.S. 528 (2005). 24 544 U.S. at 542. 25 483 U.S. 825 (1987). 26 483 U.S. at 837. Justice Scalia, author of the Court’s opinion in Nollan, amplified his views in a concurring and dissenting opinion in Pennell v. City of San 

Jose, 485 U.S. 1 (1988), explaining that ‘‘common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas 

to public streets, are in accord with [constitutional requirements] because the proposed property use would otherwise be the cause of’’ the social evil (e.g., congestion) 

Just Compensation 

[P. 1467, add to n.584 after first citation:] 

The owner’s loss, not the taker’s gain, is the measure of such compensation. Brown 

v. Legal Found. of Washington, 538 U.S. 216, 236 (2003). 

When Property is Taken 

—Regulatory Takings 

[P. 1483, substitute for n.683:] 

Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra’s sharp physical-regulatory dichotomy 

is hard to reconcile with dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 

(2005), to the effect that the Penn Central regulatory takings test, like the physical 

occupations rule of Loretto, ‘‘aims to identify regulatory actions that are functionally 

equivalent to the classic taking in which government directly appropriates private 

property or ousts the owner from his domain.’’ 

[Pp. 1485-86, substitute for paragraph that begins on page 1485 and 

for first paragraph that begins on page 1486:] 

The first prong of the Agins test, asking whether land use controls ‘‘substantially advance legitimate governmental interests,’’ 

has now been erased from takings jurisprudence, after a quartercentury run. The proper concern of regulatory takings law, said 

Lingle v. Chevron U.S.A. Inc.,23 is the magnitude, character, and 

distribution of the burdens that a regulation imposes on property 

rights. In ‘‘stark contrast,’’ the ‘‘substantially advances’’ test addresses the means-end efficacy of a regulation, more in the nature 

of a due process inquiry.24 As such, it is not a valid takings test. 

A third type of inverse condemnation, in addition to regulatory 

and physical takings, is the exaction taking. A two-part test has 

emerged. The first part debuted in Nollan v. California Coastal 

Commission,25 and holds that in order not to be a taking, an exaction condition on a development permit approval (requiring, for example, that a portion of a tract to be subdivided be dedicated for 

public roads) must substantially advance a purpose related to the 

underlying permit. There must, in short, be an ‘‘essential nexus’’ 

between the two; otherwise the condition is ‘‘an out-and-out plan of 

extortion.’’ 26 The second part of the exaction-takings test, anbjneal on GSDDPC74 with NOTICES

AMENDMENT 5—RIGHTS OF PERSONS 69 

that the regulation seeks to remedy. By contrast, the Justice asserted, a rent control 

restriction pegged to individual tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to impose on a few individuals public burdens that 

‘‘should be borne by the public as a whole.’’ 485 U.S. at 20, 22. 27 512 U.S. 374 (1994) 28 526 U.S. 687 (1999). 29 A strong hint that monetary exactions are indeed outside Nollan/Dolan was 

provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining that 

these decisions were grounded on the doctrine of unconstitutional conditions as applied to easement conditions that would have been per se physical takings if condemned directly. 30Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). The other two decisions are Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). 

nounced in Dolan v. City of Tigard,27 specifies that the condition, 

to not be a taking, must be related to the proposed development 

not only in nature, per Nollan, but also in degree. Government 

must establish a ‘‘rough proportionality’’ between the burden imposed by such conditions on the property owner, and the impact of 

the property owner’s proposed development on the community — at 

least in the context of adjudicated (rather than legislated) conditions. 

Nollan and Dolan occasioned considerable debate over the 

breadth of what became known as the ‘‘heightened scrutiny’’ test. 

The stakes were plainly high in that the test, where it applies, 

lessens the traditional judicial deference to local police power and 

places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey, 

Ltd.,28 the Court unanimously confined the Dolan rough proportionality test, and, by implication, the Nollan nexus test, to the exaction context that gave rise to those cases. Still unclear, however, 

is whether the Court meant to place outside Dolan exactions of a 

purely monetary nature, in contrast with the physically invasive 

dedication conditions involved in Nollan and Dolan.29

The announcement following Penn Central of the above per se 

rules in Loretto (physical occupations), Agins and Lucas (total 

elimination of economic use), and Nollan/Dolan (exaction conditions) prompted speculation that the Court was replacing its ad hoc 

Penn Central approach with a more categorical takings jurisprudence. Such speculation was put to rest, however, by three decisions from 2001 to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn Central as 

the dominant mode of analysis for inverse condemnation claims, 

confining the Court’s per se rules to the ‘‘relatively narrow’’ physical occupation and total wipeout circumstances, and the ‘‘special 

context’’ of exactions.30

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70 AMENDMENT 5—RIGHTS OF PERSONS 

31 125 S. Ct. 2491 (2005). 32 28 U.S.C. § 1738. The statute commands that ‘‘judicial proceedings . . . shall 

have the same full faith and credit in every court within the United States . . . as 

they have by law or usage in the courts of such State . . . .’’ The statute has been 

held to encompass the doctrines of claim and issue preclusion. 33See England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). 34 125 S. Ct. at 2507 (Chief Justice Rehnquist, and Justices O’Connor, Kennedy, 

and Thomas). 

[P. 1490, add new paragraph to text at end of section:] 

The requirement that state remedies be exhausted before 

bringing a federal taking claim to federal court has occasioned 

countless dismissals of takings claims brought initially in federal 

court, while at the same time posing a bar under doctrines of preclusion to filing first in state court, per Williamson County, then 

relitigating in federal court. The effect in many cases is to keep federal takings claims out of federal court entirely — a consequence 

the plaintiffs’ bar has long argued could not have been intended by 

the Court. In San Remo Hotel, L.P. v. City and County of San 

Francisco,31 the Court unanimously declined to create an exception 

to the federal full faith and credit statute 32 that would allow relitigation of federal takings claims in federal court. Nor, said the 

Court, may an England reservation of the federal taking claim in 

state court 33 be used to require a federal court to review the reserved claim, regardless of what issues the state court may have 

decided. While concurring in the judgment, four justices asserted 

that the state-exhaustion prong of Williamson County ‘‘may have 

been mistaken.’’ 34

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71 

1Washington v. Recuenco, 126 S. Ct. 2546, 2552 (2006). Apprendi is discussed 

in the next section. 2Ford v. Wainwright, 477 U.S. 399, 416-417 (1986); Atkins v. Virginia, 536 U.S. 

304, 317 (2002); Schriro v. Smith, 126 S. Ct. 7, 9 (2005). See Eighth Amendment, 

‘‘Limitations on Capital Punishment: Diminished Capacity,’’ infra. 3 In Washington v. Recuenco, however, the Court held that ‘‘[f]ailure to submit 

a sentencing factor to the jury, like failure to submit an element [of a crime] to the 

jury, is not structural error,’’ entitling the defendant to automatic reversal, but can 

be harmless error. 126 S. Ct. 2546, 2553 (2006). 4For instance, the Court held that whether a defendant ‘‘visibly possessed a 

gun’’ during a crime may be designated by a state as a sentencing factor, and deterSIXTH AMENDMENT 

RIGHT TO TRIAL BY IMPARTIAL JURY 

Jury Trial 

—The Attributes and Function of the Jury 

[P. 1505, add to text at end of section:] 

Subsequently, the Court held that, just as failing to prove materiality to the jury beyond a reasonable doubt can be harmless error, 

so can failing to prove a sentencing factor to the jury beyond a reasonable doubt. ‘‘Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that 

elements and sentencing factors must be treated the same for Sixth 

Amendment purposes.’’ 1

—Criminal Proceedings to Which the Guarantee Applies 

[P.1506, add to end of first full paragraph:] 

The Court has consistently, held, however, that a jury is not required for purposes of determining whether a defendant is insane 

or mentally retarded and consequently not eligible for the death 

penalty.2

[P. 1506-1507, substitute for last two paragraphs of section:] 

Within the context of a criminal trial, what factual issues are 

submitted to the jury has traditionally been determined by whether 

the fact to be established is an element of a crime or instead is a 

sentencing factor.3 Under this approach, the right to a jury extends 

to the finding of all facts establishing the elements of a crime, and 

sentencing factors may be evaluated by a judge. Evaluating the 

issue primarily under the Fourteenth Amendment’s Due Process 

Clause, the Court initially deferred to Congress and the states on 

this issue, allowing them broad leeway in determining which facts 

are elements of a crime and which are sentencing factors.4

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72 AMENDMENT 6—RIGHTS OF ACCUSED 

mined by a judge based on the preponderance of evidence. McMillan v. Pennsylvania, 477 U.S. 79 (1986). After resolving the issue under the Due Process Clause, 

the Court dismissed the Sixth Amendment jury trial claim as ‘‘merit[ing] little discussion.’’ Id. at 93. For more on the due process issue, see the discussion in the main 

text under ‘‘Proof, Burden of Proof, and Presumptions.’’ 5 530 U.S. 466, 490 (2000). 

6 530 U.S. at 494. ‘‘[M]erely because the state legislature placed its hate crime 

sentence enhancer within the sentencing provisions of the criminal code does not 

mean that the finding of a biased purpose to intimidate is not an essential element 

of the offense.’’ Id. at 495 (internal quotation omitted). 7 530 U.S. at 490. 

8 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally 

considered a part of sentencing, and a judge may find the existence of previous valid 

convictions even if the result is a significant increase in the maximum sentence 

available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien 

reentering the United States is subject to a maximum sentence of two years, but 

upon proof of a felony record, is subject to a maximum of twenty years). See also 

Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has the burden of establishing 

a prior conviction, a defendant can be required to bear the burden of challenging 

the validity of such a conviction). 9Prior to its decision in Apprendi, the Court had held that factors determinative 

of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 

U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, 

McMillan was subsequently reaffirmed in Harris v. United States, 536 U.S. 545, 

568-69 (2002). Five Justices in Harris thought that factfinding required for imposition of mandatory minimums fell within Apprendi’s reasoning, but one of the five, 

Justice Breyer, concurred in the judgment on practical grounds despite his recognition that McMillan was not ‘‘easily’’ distinguishable ‘‘in terms of logic.’’ 536 U.S. at 

569. Justice Thomas’ dissenting opinion, id. at 572, joined by Justices Stevens, 

Souter, and Ginsburg, elaborated on the logical inconsistency, and suggested that 

the Court’s deference to Congress’ choice to treat mandatory minimums as sentencing factors made avoidance of Apprendi a matter of ‘‘clever statutory drafting.’’ 

Id. at 579. 10 536 U.S. 584 (2002). 

Breaking with this tradition, however, the Court in Apprendi 

v. New Jersey held that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.5

‘‘The relevant inquiry is one not of form, but of effect.’’ 6 Apprendi 

had been convicted of a crime punishable by imprisonment for no 

more than ten years, but had been sentenced to 12 years based on 

a judge’s findings, by a preponderance of the evidence, that enhancement grounds existed under the state’s hate crimes law. 

‘‘[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum,’’ the Court concluded, ‘‘must be submitted to a jury, and proved beyond a reasonable doubt.’’ 7 The one 

exception the Apprendi Court recognized was for sentencing enhancements based on recidivism.8 Subsequently, the Court refused 

to apply Apprendi’s principles to judicial factfinding that supports 

imposition of mandatory minimum sentences.9

Apprendi’s importance soon became evident as the Court applied its reasoning in other situations. In Ring v. Arizona,10 the 

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AMENDMENT 6—RIGHTS OF ACCUSED 73 

11Walton v. Arizona, 497 U.S. 639 (1990). The Court’s decision in Ring also appears to overrule a number of previous decisions on the same issue, such as 

Spaziano v. Florida, 468 U.S. 447 (1984), and Hildwin v. Florida, 490 U.S. 638, 640- 

41 (1989) (per curiam), and undercuts the reasoning of another. See Clemons v. Mississippi, 494 U.S. 738 (1990) (appellate court may reweigh aggravating and mitigating factors and uphold imposition of death penalty even though jury relied on 

an invalid aggravating factor). 12 ‘‘Because Arizona’s enumerated aggravating factors operate as ‘the functional 

equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires 

that they be found by a jury.’’ 536 U.S. at 609. The Court rejected Arizona’s request 

that it recognize an exception for capital sentencing in order not to interfere with 

elaborate sentencing procedures designed to comply with the Eighth Amendment. 

Id. at 605-07. 13 542 U.S. 296 (2004). 14 542 U.S. at 303-304 (italics in original; citations omitted). 15 543 U.S. 220 (2005). 

Court, overruling precedent,11 applied Apprendi to invalidate an 

Arizona law that authorized imposition of the death penalty only 

if the judge made a factual determination as to the existence of any 

of several aggravating factors. Although Arizona required that the 

judge’s findings as to aggravating factors be made beyond a reasonable doubt, and not merely by a preponderance of the evidence, the 

Court ruled that those findings must be made by a jury.12

In Blakely v. Washington,13 the Court sent shockwaves 

through federal as well as state sentencing systems when it applied 

Apprendi to invalidate a sentence imposed under Washington 

State’s sentencing statute. Blakely, who pled guilty to an offense 

for which the ‘‘standard range’’ under the state’s sentencing law 

was 49 to 53 months, was sentenced to 90 months based on the 

judge’s determination — not derived from facts admitted in the 

guilty plea — that the offense had been committed with ‘‘deliberate 

cruelty,’’ a basis for an ‘‘upward departure’’ under the statute. The 

90-month sentence was thus within a statutory maximum, but the 

Court made ‘‘clear . . . that the ‘statutory maximum’ for Apprendi 

purposes is the maximum sentence a judge may impose solely on 

the basis of the facts reflected in the jury verdict or admitted by the 

defendant. In other words, the relevant ‘statutory maximum’ is not 

the maximum sentence a judge may impose after finding additional 

facts, but the maximum he may impose without any additional 

findings.’’ 14

In United States v. Booker,15 the Court held that the same 

principles limit sentences that courts may impose under the federal 

Sentencing Guidelines. As the Court restated the principle in Booker, ‘‘[a]ny fact (other than a prior conviction) which is necessary to 

support a sentence exceeding the maximum authorized by the facts 

established by a plea of guilty or a jury verdict must be admitted 

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74 AMENDMENT 6—RIGHTS OF ACCUSED 

16 543 U.S. at 244. 17 543 U.S. at 233. 18 543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989), 

the Court also rejected a separation-of-powers argument. Id. at 754-55. 19There were two distinct opinions of the Court in Booker. The first, authored 

by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the 

same Justices who comprised the five-Justice Blakely majority), applied Blakely to 

find a Sixth Amendment violation; the other, authored by Justice Breyer, and joined 

by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the 

Blakely dissenters joined by Justice Ginsburg), set forth the remedy. 20 543 U.S. at 259. The Court substituted a ‘‘reasonableness’’ standard for the 

de novo review standard. Id. at 262. 21 543 U.S. at 245-246 (statutory citations omitted). 22 ‘‘[O]nce a witness is shown to be unavailable . . . , the Clause countenances 

only hearsay marked with such trustworthiness that ‘there is no material departure 

from the reason of the general rule.’’’ 448 U.S. at 65, quoting Snyder v. Massachusetts, 291 U.S. 97, 107 (1934). The Court indicated that reliability could be inferred 

without more if the evidence falls within a firmly rooted hearsay exception. 23 Applying Roberts, the Court held that the fact that defendant’s and codefendant’s confessions ‘‘interlocked’’ on a number of points was not a sufficient indicium 

of reliability, since the confessions diverged on the critical issues of the respective 

roles of the two defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts was narrowed in United States v. Inadi, 475 U.S. 387 (1986), which held that the rule of 

‘‘necessity’’ is confined to use of testimony from a prior judicial proceeding, and is 

by the defendant or proved to a jury beyond a reasonable doubt.’’ 16

Attempts to distinguish Blakely were rejected. Because the Sentencing Reform Act made application of the Guidelines ‘‘mandatory 

and binding on all judges,’’ 17 the Court concluded that the fact that 

the Guidelines were developed by the Sentencing Commission rather than by Congress ‘‘lacks constitutional significance.18 The mandatory nature of the Guidelines was also important to the Court’s 

formulation of a remedy.19 Rather than engrafting a jury trial requirement onto the Sentencing Reform Act, the Court instead invalidated two of its provisions, one making application of the 

Guidelines mandatory, and one requiring de novo review for appeals of departures from the mandatory Guidelines, and held that 

the remainder of the Act could remain intact.20 As the Court explained, this remedy ‘‘makes the Guidelines effectively advisory. It 

requires a sentencing court to consider Guidelines ranges, but it 

permits the court to tailor the sentence in light of other statutory 

concerns as well.’’ 21

CONFRONTATION 

[P. 1522, substitute for both paragraphs on page (entire content of 

page):] 

In Ohio v. Roberts, 448 U.S. 56 (1980), a Court majority adopted the reliability test for satisfying the confrontation requirement 

through use of a statement by an unavailable witness.22 Roberts 

was applied and narrowed over the course of 24 years,23 and then 

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AMENDMENT 6—RIGHTS OF ACCUSED 75 

inapplicable to co-conspirators’ out-of-court statements. See also White v. Illinois, 

502 U.S. 346, 357 (1992) (holding admissible ‘‘evidence embraced within such firmly 

rooted exceptions to the hearsay rule as those for spontaneous declarations and 

statements made for medical treatment’’); and Idaho v. Wright, 497 U.S. 805, 822- 

23 (1990) (insufficient evidence of trustworthiness of statements made by child sex 

crime victim to her pediatrician; statements were admitted under a ‘‘residual’’ hearsay exception rather than under a firmly rooted exception). 24 541 U.S. 36 (2004). 25 541 U.S. at 60-61. 26 541 U.S. at 63. 27 541 U.S. at 68-69. 28The Roberts Court had stated a two-part test, the first a ‘‘necessity’’ rule 

under which the prosecution must produce or demonstrate unavailability of the declarant despite reasonable, good-faith efforts to produce the declarant at trial (448 

U.S. at 65, 74), and the second part turning on the reliability of a hearsay statement 

by an unavailable witness. Crawford overruled Roberts only with respect to reliability, and left the unavailability test intact. 29 541 U.S. at 68. 30 126 S. Ct. 2266 (2006). 

overruled in Crawford v. Washington.24 The Court in Crawford rejected reliance on ‘‘particularized guarantees of trustworthiness’’ as 

inconsistent with the requirements of the Confrontation Clause. 

The Clause ‘‘commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.’’ 25 Reliability is an ‘‘amorphous’’ concept 

that is ‘‘manipulable,’’ and the Roberts test had been applied ‘‘to 

admit core testimonial statements that the Confrontation Clause 

plainly meant to exclude.’’ 26 ‘‘Where testimonial statements are at 

issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.’’ 27

Crawford represents a decisive turning point for Confrontation 

Clause analysis. The basic principles are now clearly stated. ‘‘Testimonial evidence’’ may be admitted against a criminal defendant 

only if the declarant is available for cross-examination at trial, or, 

if the declarant is unavailable even though the government has 

made reasonable efforts to procure his presence, the defendant has 

had a prior opportunity to cross-examine as to the content of the 

statement.28 The Court left ‘‘for another day any effort to spell out 

a comprehensive definition of ‘testimonial.’’’ The Court indicated, 

however, that the term covers ‘‘at a minimum’’ prior testimony at 

a preliminary hearing, at a former trial, or before a grand jury, and 

statements made during police interrogation.29

In Davis v. Washington,30 the Court began an exploration of 

the parameters of Crawford by considering when a police interrogation is ‘‘testimonial’’ for purposes of the Confrontation Clause. The 

Davis case involved a 911 call in which a women described being 

assaulted by a former boyfriend. A tape of that call was admitted 

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76 AMENDMENT 6—RIGHTS OF ACCUSED 

31 Id. at 2273. 32 Id. at 2277-78. Thus, where police responding to a domestic violence report 

interrogated a woman in the living room while her husband was being questioned 

in the kitchen, there was no present threat to the woman, so such information as 

was solicited was testimonial. Id. at 2278 (facts of Hammon v. Indiana, considered 

together with Davis.) 33 United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2561-62 (2006). 34 Arizona v. Fulminante, 499 U.S. 279, 307-310 (1991). 35Gonzalez-Lopez, 126 S. Ct. at 2557, 2563-64. The Court noted that an important component of the finding that denial of the right to choose one’s own counsel 

was a ‘‘structural defect’’ was the difficulty of assessing the effect of such denial on 

a trial’s outcome. Id. at 2564 n.4. 

as evidence of a felony violation of a domestic no-contact order, despite the fact that the women in question did not testify. While 

again declining to establish all parameters of when a response to 

police interrogation is testimonial, the Court did hold that statements to the police are nontestimonial when made under circumstances that ‘‘objectively indicat[e] that the primary purpose of 

the interrogation is to enable police assistance to meet an ongoing 

emergency.’’ 31 Statements made after such emergency has ended, 

however, would be treated as testimonial, and could not be introduced.32

ASSISTANCE OF COUNSEL 

Development of an Absolute Right to Counsel at Trial 

—Johnson v. Zerbst 

[P. 1528, add to n.208:] 

A waiver must be knowing, voluntary, and intelligent, but need not be based on a 

full and complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 

77 (2004) (holding that warnings by trial judge detailing risks of waiving right to 

counsel are not constitutionally required before accepting guilty plea from 

uncounseled defendant). 

—Protection of the Right to Retained Counsel 

[P. 1531, add new paragraph in text after n.229:] 

Where the right to be assisted by counsel of one’s choice is 

wrongly denied, a Sixth Amendment violation occurs regardless of 

whether the alternate counsel retained was effective, or whether 

the denial caused prejudice to the defendant.33 Further, because 

such a denial is not a ‘‘trial error’’ (a constitutional error that occurs during presentation of a case to the jury), but a ‘‘structural defect’’ (a constitutional error that affects the framework of the 

trial),34 the Court had held that the decision is not subject to a 

‘‘harmless error’’ analysis.35

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AMENDMENT 6—RIGHTS OF ACCUSED 77 

36There is no obligation to present on appeal all nonfrivolous issues requested 

by the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal). 

37Strickland and Cronic were decided the same day, and the Court’s opinion in 

each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. 

The Cronic presumption of prejudice may be appropriate when counsel’s ‘‘overall 

performance’’ is brought into question, while Strickland is generally the appropriate 

test for ‘‘claims based on specified [counsel] errors.’’ Cronic, 466 U.S. at 666 n.41. 

The narrow reach of Cronic has been illustrated by subsequent decisions. Not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of 

appeal, or in some circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 

430, 432 (1991) (per curiam). See also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant has failed to consent to a tenable strategy 

counsel has adequately disclosed to and discussed with him). A standard somewhat 

different from Cronic and Strickland governs claims of attorney conflict of interest. 

See discussion of Cuyler v. Sullivan, supra. 

—Effective Assistance of Counsel 

[P. 1535, add new footnote after ‘‘virtually unchallengeable,’’ in sentence ending with n.252:] 

Strickland, 466 U.S. at 689-91. See also Yarborough v. Gentry, 540 U.S. 1 (2003) 

(deference to attorney’s choice of tactics for closing argument). 

[P. 1535, substitute for n.252:] 

Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by ‘‘severe’’ aggravating factors). But see Wiggins v. Smith, 539 U.S. 510 (2003) (attorney’s failure 

to pursue defendant’s personal history and present important mitigating evidence 

at capital sentencing was objectively unreasonable); and Rompilla v. Beard, 125 S. 

Ct. 2456 (2005) (attorneys’ failure to consult trial transcripts from a prior conviction 

that the attorneys knew the prosecution would rely on in arguing for the death penalty was inadequate). 

[P. 1535, change period in text preceding n.252 to comma and add 

to text after n.252:] 

and decisions selecting which issues to raise on appeal.36

[P. 1536, substitute for n.261:] 

Cronic, 466 U.S. at 659 n.26. 

[P. 1536, change the period in text before n.261 to a comma, and add 

after new comma:] 

and consequently most claims of inadequate representation are to be measured by 

the Strickland standard.37

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78 AMENDMENT 6—RIGHTS OF ACCUSED 

—Self-Representation 

[P. 1536, add to n. 262 before sentence beginning with ‘‘Related’’:] 

The Court, however, has not addressed what state aid, such as access to a law library, might need to be made available to a defendant representing himself. Kane 

v. Garcia Espitia, 126 S. Ct. 407 (2005). 

Right to Assistance of Counsel in Nontrial Situations 

—Custodial Interrogation 

[P. 1539, add new footnote at end of paragraph continued from page 

1538:] 

The different issues in Fifth and Sixth Amendment cases were recently summarized 

in Fellers v. United States, 540 U.S. 519 (2004), holding that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry. 

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79 

1 126 S. Ct. 884, 892 (2006). In some states, ‘‘the only aggravating factors permitted to be considered by the sentencer [are] the specified eligibility factors.’’ Id. 

at 890. These are known as weighing states; non-weighing states, by contrast, are 

those that permit ‘‘the sentencer to consider aggravating factors different from, or 

in addition to, the eligibility factors.’’ Id. Prior to Brown v. Sanders, in weighing 

states, the Court deemed ‘‘the sentencer’s consideration of an invalid eligibility factor’’ to require ‘‘reversal of the sentence (unless a state appellate court determined 

the error was harmless or reweighed the mitigating evidence against the valid aggravating factors).’’ Id. 

EIGHTH AMENDMENT 

CRUEL AND UNUSUAL PUNISHMENTS 

Capital Punishment 

—Implementation of Procedural Requirements 

[P. 1581, add to n.91:] 

Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a 

narrowing construction because it had done so numerous times). 

[P. 1583, add to n.99:] 

Although, under the Eighth and Fourteenth Amendments, the state must bear the 

burden ‘‘to prove the existence of aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating 

circumstances sufficiently substantial to call for leniency.’’ Walton v. Arizona, 497 

U.S. 639, 650 (1990) (plurality). A fortiori, a statute ‘‘may direct imposition of the 

death penalty when the State has proved beyond a reasonable doubt that mitigators 

do not outweigh aggravators, including where the aggravating circumstances and 

mitigating circumstances are in equipoise.’’ Kansas v. Marsh, 126 S. Ct. 2516, 2524 

(2006). 

[P. 1586, add new paragraph after paragraph carried over from page 

1585:] 

What is the effect on a death sentence if an ‘‘eligibility factor’’ 

(a factor making the defendant eligible for the death penalty) or an 

‘‘aggravating factor’’ (a factor, to be weighed against mitigating factors, in determining whether a defendant who has been found eligible for the death penalty should receive it) is found invalid? In 

Brown v. Sanders, the Court announced ‘‘the following rule: An invalidated sentencing factor (whether an eligibility factor or not) 

will render the sentence unconstitutional by reason of its adding an 

improper element to the aggravation scale in the weighing process 

unless one of the other sentencing factors enables the sentencer to 

give aggravating weight to the same facts and circumstances.’’ 1

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80 AMENDMENT 8—PUNISHMENT FOR CRIME 

2 126 S. Ct. 1226, 1231, 1230 (2006). 

3 126 S. Ct. at 1231, 1232 (Court’s emphasis deleted in part). 

4 126 S. Ct. at 1232. 

5 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright. 

6 126 S. Ct. 7, 9 (2005) (per curiam). 

7 126 S. Ct. at 9. 

[P. 1586, add new paragraph after first full paragraph:] 

In Oregon v. Guzek, the Court could ‘‘find nothing in the 

Eighth or Fourteenth Amendments that provides a capital defendant a right to introduce,’’ at sentencing, new evidence, available to 

him at the time of trial, ‘‘that shows he was not present at the 

scene of the crime.’’ 2 Although ‘‘the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character 

or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death,’’ such 

evidence is a traditional concern of sentencing because it tends to 

show ‘‘how, not whether,’’ the defendant committed the crime.3

Alibi evidence, by contrast, concerns ‘‘whether the defendant committed the basic crime’’, and ‘‘thereby attacks a previously determined matter in a proceeding [i.e., sentencing] at which, in principle, that matter is not at issue.’’ 4

—Limitations on Capital Punishment: Diminished Capacity 

[P. 1590, add to n.139:] 

See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should 

be admissible for mitigating purposes without being screened on basis of severity 

of disability). 

[P. 1591, add new paragraph in text after n.143:] 

In Atkins, the Court wrote, ‘‘As was our approach in Ford v. 

Wainwright with regard to insanity, ‘we leave to the State[s] the 

task of developing appropriate ways to enforce the constitutional 

restriction upon [their] execution of sentences.’’’ 5 In Schriro v. 

Smith, the Court again quoted this language, holding that ‘‘[t]he 

Ninth Circuit erred in commanding the Arizona courts to conduct 

a jury trial to resolve Smith’s mental retardation claim.’’ 6 States, 

the Court added, are entitled to ‘‘adopt[ ] their own measures for 

adjudicating claims of mental retardation,’’ though ‘‘those measures 

might, in their application, be subject to constitutional challenge.’’ 7

[P. 1591, substitute for first two sentences of first full paragraph:] 

The Court’s conclusion that execution of juveniles constitutes 

cruel and unusual punishment evolved in much the same manner. 

Initially, a closely divided Court invalidated one statutory scheme 

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AMENDMENT 8—PUNISHMENT FOR CRIME 81 

8 536 U.S. at 314, n.18. 

9 543 U.S. 551 (2005). The case was decided by 5-4 vote. Justice Kennedy wrote 

the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and 

Breyer. Justice O’Connor, who had joined the Court’s 6-3 majority in Atkins, wrote 

a dissenting opinion, as did Justice Scalia, who was joined by Chief Justice 

Rehnquist and Justice Thomas. 10Dissenting in Simmons, Justice O’Connor disputed the consistency of the 

trend, pointing out that since Stanford two states had passed laws reaffirming the 

permissibility of executing 16- and 17-year-old-offenders. 543 U.S. at 596. 11 543 U.S. at 564. The Stanford Court had been split over the appropriate 

scope of inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality 

would have focused almost exclusively on an assessment of what the state legislatures and Congress have done in setting an age limit for application of capital punishment. 492 U.S. at 377 (‘‘A revised national consensus so broad, so clear and so 

enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the 

people have approved.’’). The Stanford dissenters would have broadened this inquiry 

with a proportionality review that considers the defendant’s culpability as one aspect of the gravity of the offense, that considers age as one indicator of culpability, 

and that looks to other statutory age classifications to arrive at a conclusion about 

the level of maturity and responsibility that society expects of juveniles. 492 U.S. 

that permitted capital punishment to be imposed for crimes committed before age 16, but upheld other statutes authorizing capital 

punishment for crimes committed by 16 and 17 year olds. 

[P. 1591, substitute for rest of paragraph following n.148:] 

Although the Court in Atkins v. Virginia contrasted the national consensus said to have developed against executing the mentally retarded with what it saw as a lack of consensus regarding 

execution of juvenile offenders over age 15,8 less than three years 

later the Court held that such a consensus had developed. The 

Court’s decision in Roper v. Simmons 9 drew parallels with Atkins. 

A consensus had developed, the Court held, against the execution 

of juveniles who were age 16 or 17 when they committed their 

crimes. Since Stanford, five states had eliminated authority for 

executing juveniles, and no states that formerly prohibited it had 

reinstated the authority. In all, 30 states prohibited execution of juveniles: 12 that prohibited the death penalty altogether, and 18 

that excluded juveniles from its reach. This meant that 20 states 

did not prohibit execution of juveniles, but the Court noted that 

only five of these states had actually executed juveniles since Stanford, and only three had done so in the 10 years immediately preceding Simmons. Although the pace of change was slower than had 

been the case with execution of the mentally retarded, the consistent direction of change toward abolition was deemed more important.10

As in Atkins, the Simmons Court relied on its ‘‘own independent judgment’’ in addition to its finding of consensus among 

the states.11 Three general differences between juveniles and 

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82 AMENDMENT 8—PUNISHMENT FOR CRIME 

at 394-96. The Atkins majority adopted the approach of the Stanford dissenters, conducting a proportionality review that brought their own ‘‘evaluation’’ into play 

alongwith their analysis of consensus on the issue of executing the mentally retarded. 12 543 U.S. at 569, 570. 13 543 U.S. at 570. 14w543 U.S. at 572-573. Strongly disagreeing, Justice O’Connor wrote that ‘‘an 

especially depraved juvenile offender may . . . be just as culpable as many adult 

offenders considered bad enough to deserve the death penalty. . . . [E]specially for 

17-year-olds . . . the relevant differences between ‘adults’ and ‘juveniles’ appear to 

be a matter of degree, rather than of kind.’’ Id. at 600. 15 543 U.S. at 578 (noting ‘‘the stark reality that the United States is the only 

country in the world that continues to give official sanction to the juvenile death 

penalty,’’ id. at 575). 16 Citing as precedent Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion); Atkins, 536 U.S. at 317, n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 

(1982); Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion). 

adults make juveniles less morally culpable for their actions. Because juveniles lack maturity and have an underdeveloped sense of 

responsibility, they often engage in ‘‘impetuous and ill-considered 

actions and decisions.’’ Juveniles are also more susceptible than 

adults to ‘‘negative influences’’ and peer pressure. Finally, the character of juveniles is not as well formed, and their personality traits 

are ‘‘more transitory, less fixed.’’ 12 For these reasons, irresponsible 

conduct by juveniles is ‘‘not as morally reprehensible,’’ they have ‘‘a 

greater claim than adults to be forgiven,’’ and ‘‘a greater possibility 

exists that a minor’s character deficiencies will be reformed.13 Because of the diminished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s maturity, explaining that ‘‘[t]he differences between juvenile and adult offenders are too marked and well understood to risk 

allowing a youthful person to receive the death penalty despite insufficient culpability.’’ 14

The Simmons Court found confirmation for its holding in ‘‘the 

overwhelming weight of international opinion against the juvenile 

death penalty.’’ 15 Although ‘‘not controlling,’’ the rejection of the juvenile death penalty by other nations and by international authorities was ‘‘instructive,’’ as it had been in earlier cases, for Eighth 

Amendment interpretation.16

—Limitations on Habeas Corpus Review of Capital Sentences 

[P. 1594, delete everything after citation in n.161, and add new footnote at end of second sentence of paragraph in text:] 

The ‘‘new rule’’ limitation was suggested in a plurality opinion in Teague. A Court 

majority in Penry and later cases has adopted it. ‘‘Teague by its terms applies only 

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AMENDMENT 8—PUNISHMENT FOR CRIME 83 

17 Ewing v. California, 538 U.S. 11 (2003). 18 538 U.S. at 29-30. 19 538 U.S. at 31. 

to procedural rules.’’ Bousley v. United States, 523 U.S. 614, 620 (1998). ‘‘New substantive rules generally apply retroactively.’’ This is so because new substantive 

rules ‘‘necessarily carry a significant risk that a defendant stands convicted of an 

act that the law does not make criminal or faces a punishment that the law cannot 

impose on him.’’ Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004) (citation and 

internal quotation omitted) (decision in Ring v. Arizona, holding that jury not judge 

must decide existence of aggravating factors on which imposition of death sentence 

may be based, was a procedural, not a substantive rule). 

[P. 1594, add to n.162 following initial citation:] 

The first exception parallels the standard for substantive rules. The second exception, for ‘‘watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding,’’ Saffle v. Parks, 494 U.S. 484, 495 

(1990), was at issue in Sawyer v. Smith . . . . 

[P. 1595, add to n.167:] 

Accord, House v. Bell, 126 S. Ct. 2064, 2086-2087 (2006) (defendant failed to meet 

Herrera standard but nevertheless put forward enough evidence of innocence to 

meet the less onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which ‘‘held 

that prisoners asserting innocence as a gateway to [habeas relief for claims forfeited 

under state law] must establish that, in light of new evidence, ‘it is more likely than 

not that no reasonable juror would have found petitioner guilty beyond a reasonable 

doubt.’’’ Id. at 2076-2077, quoting Schlup v. Delo, 513 U.S. at 327.) The Court here 

distinguished ‘‘freestanding’’ claims under Herrera from ‘‘gateway’’ claims under 

Schlup, the difference apparently being that success on a freestanding claim results 

in the overturning of a conviction, whereas success on a gateway claim results in 

a remand to the trial court to hear the claim. See also Article III, ‘‘Habeas Corpus: 

Scope of the Writ.’’ 

Proportionality 

[P. 1601, add new paragraph at end of section:] 

Twelve years after Harmelin the Court still could not reach a 

consensus on rationale for rejecting a proportionality challenge to 

California’s ‘‘three-strikes’’ law, as applied to sentence a repeat 

felon to 25 years to life imprisonment for stealing three golf clubs 

valued at $399 apiece.17 A plurality of three Justices (O’Connor, 

Kennedy, and Chief Justice Rehnquist) determined that the sentence was ‘‘justified by the State’s public safety interest in incapacitating and deterring recidivist felons, and amply supported by [the 

petitioner’s] long, serious criminal record,’’ and hence was not the 

‘‘rare case’’ of ‘‘gross disproportional[ity].’’ 18 The other two Justices 

voting in the majority were Justice Scalia, who objected that the 

proportionality principle cannot be intelligently applied when the 

penological goal is incapacitation rather than retribution,19 and 

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84 AMENDMENT 8—PUNISHMENT FOR CRIME 

20 538 U.S. at 32. The dissenting Justices thought that the sentence was invalid 

under the Harmelin test used by the plurality, although they suggested that the 

Solem v. Helm test would have been more appropriate for a recidivism case. See 538 

U.S. at 32, n.1 (opinion of Justice Stevens). 21Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used 

to impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two 

petty thefts with a prior conviction. 22 538 U.S. at 72. 

ments Clause ‘‘contains no proportionality principle.’’ 20 Not surprisingly, the Court also rejected a habeas corpus challenge to California’s ‘‘three-strikes’’ law for failure to clear the statutory hurdle 

of establishing that the sentencing was contrary to, or an unreasonable application of, ‘‘clearly established federal law.’’ 21 Justice 

O’Connor’s opinion for a five-Justice majority explained, in understatement, that the Court’s precedents in the area ‘‘have not been 

a model of clarity . . . that have established a clear or consistent 

path for courts to follow.’’ 22

Prisons and Punishment 

[P. 1601, add to n.200:] 

See also Overton v. Bazzetta, 539 U.S. 126 (2003) (rejecting a challenge to a twoyear withdrawal of visitation as punishment for prisoners who commit multiple substance abuse violations, characterizing the practice as ‘‘not a dramatic departure 

from accepted standards for conditions of confinement,’’ but indicating that a permanent ban ‘‘would present different considerations’’). 

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85 

1See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446-48 (2004) 

(exercise of bankruptcy court’s in rem jurisdiction over a debtor’s estate to discharge 

a debt owed to a state does not infringe the state’s sovereignty); California v. Deep 

Sea Research, Inc., 523 U.S. 491, 507-08 (1998) (despite state claims to title of a 

ship-wrecked vessel, the Eleventh Amendment does not bar federal court in rem admiralty jurisdiction where the res is not in the possession of the sovereign) 2 Central Virginia Community College v. Katz, 126 S. Ct. 990, 996 (2006). 

3 A ‘‘preferential transfer’’ was defined as the transfer of a property interest 

from an insolvent debtor to a creditor, which occurred on or within 90 days before 

the filing of a bankruptcy petition, and which exceeds what the creditor would have 

been entitled to receive under such bankruptcy filing. 11 U.S.C. § 547(b). 4 126 S. Ct. at 1001-02. 

ELEVENTH AMENDMENT 

STATE SOVEREIGN IMMUNITY 

Suits Against States 

[P. 1636, add to text at end of section:] 

In some of these cases, the state’s immunity is either waived or abrogated by Congress. In other cases, the 11th Amendment does not apply because the procedural 

posture is such that the Court does not view the suit as being against a state. As 

discussed below, this latter doctrine is most often seen in suits to enjoin state officials. However, it has also been invoked in bankruptcy and admiralty cases, where 

the res, or property in dispute, is in fact the legal target of a dispute.1

The application of this last exception to the bankruptcy area 

has become less relevant, because even when a bankruptcy case is 

not focused on a particular res the Court has held that a state’s 

sovereign immunity is not infringed by being subject to an order 

of a bankruptcy court. ‘‘The history of the Bankruptcy Clause, the 

reasons it was inserted in the Constitution, and the legislation both 

proposed and enacted under its auspices immediately following 

ratification of the Constitution demonstrate that it was intended 

not just as a grant of legislative authority to Congress, but also to 

authorize limited subordination of state sovereign immunity in the 

bankruptcy arena.’’ 2 Thus, where a federal law authorized a bankruptcy trustee to recover ‘‘preferential transfers’’ made to state educational institutions,3 the court held that the sovereign immunity 

of the state was not infringed despite the fact that the issue was 

‘‘ancillary’’ to a bankruptcy court’s in rem jurisdiction.4

[P. 1639, add to n.80 after citation to Mt. Healthy City Bd. of Education v. Doyle:] 

Northern Insurance Company of New York v. Chatham County, 126 S. Ct. 1689, 

1693 (2006). 

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86 AMENDMENT 11—SUITS AGAINST STATES 

—Congressional Withdrawal of Immunity 

[P. 1639, add to n.85:] 

See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent 

decree). 

Suits Against State Officials 

[P. 1648, add new footnote at end of first paragraph:] 

In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree 

regarding its state Medicaid program, attempted to extend the reasoning of 

Pennhurst, arguing that unless an actual violation of federal law had been found 

by a court, such court would be without jurisdiction to enforce such decree. The 

Court, in a unanimous opinion, declined to so extend the 11th Amendment, noting, 

among other things, that the principles of federalism were served by giving state 

officials the latitude and discretion to enter into enforceable consent decrees. Id. at 

442. 

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87 

1 478 U.S. 186 (1986). 

2The Court upheld the statute only as applied to the plaintiff, who was a homosexual, 478 U.S. at 188 (1986), and thus rejected an argument that there is a ‘‘fundamental right of homosexuals to engage in acts of consensual sodomy.’’ Id. at 192- 

93. In a dissent, Justice Blackmun indicated that he would have evaluated the statute as applied to both homosexual and heterosexual conduct, and thus would have 

resolved the broader issue not addressed by the Court — whether there is a general 

right to privacy and autonomy in matters of sexual intimacy. Id. at 199-203 (Justice 

Blackmun dissenting, joined by Justices Brennan, Marshall and Stevens). 3 539 U.S. 558 (2003) (overruling Bowers). 

FOURTEENTH AMENDMENT 

Section 1. Rights Guaranteed 

DUE PROCESS OF LAW 

Definitions 

—‘‘Liberty’’ 

[P. 1682, add to n.57:] 

But see Chavez v. Martinez, 538 U.S. 760 (2003) (case remanded to federal circuit 

court to determine whether coercive questioning of severely injured suspect gave 

rise to a compensable violation of due process). 

Fundamental Rights (Noneconomic Substantive Due Process) 

—Development of the Right of Privacy 

[P. 1767, Substitute for portion of paragraph following n.552:] 

However, in Bowers v. Hardwick,1 the Court majority rejected 

a challenge to a Georgia sodomy law despite the fact that it prohibited types of intimate activities engaged in by married as well as 

unmarried couples.2 Then, in Lawrence v. Texas,3 the Supreme 

Court reversed itself, holding that a Texas statute making it a 

crime for two persons of the same sex to engage in intimate sexual 

conduct violates the Due Process Clause. 

—Abortion 

[P. 1778, add new footnote at end of last paragraph in the section:] 

As to the question of whether an abortion statute that is unconstitutional in some 

instances should be struck down in application only or in its entirety, see Ayotte v. 

Planned Parenthood of Northern New England, 126 S. Ct. 961 (2006) (challenge to 

parental notification restrictions based on lack of emergency health exception remanded to determine legislative intent regarding severability of those applications). 

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88 AMENDMENT 14—RIGHTS GUARANTEED 

4 539 U.S. 558 (2003). 

5 431 U.S. 678 (1977). 

6 431 U.S. at 684-91. The opinion of the Court on the general principles drew 

the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice 

White concurred in the result in the voiding of the ban on access to adults while 

not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented. 

The limitation of the number of outlets to adults ‘‘imposes a significant burden 

on the right of the individuals to use contraceptives if they choose to do so’’ and was 

unjustified by any interest put forward by the state. The prohibition on sale to minors was judged not by the compelling state interest test, but instead by inquiring 

whether the restrictions serve ‘‘any significant state interest . . . that is not present 

in the case of an adult.’’ This test is ‘‘apparently less rigorous’’ than the test used 

with adults, a distinction justified by the greater governmental latitude in regulating the conduct of children and the lesser capability of children in making important decisions. The attempted justification for the ban was rejected. Doubting the 

permissibility of a ban on access to contraceptives to deter minors’ sexual activity, 

the Court even more doubted, because the state presented no evidence, that limiting 

access would deter minors from engaging in sexual activity. Id. at 691-99. This portion of the opinion was supported by only Justices Brennan, Stewart, Marshall, and 

Blackmun. Justices White, Powell, and Stevens concurred in the result, id. at 702, 

703, 712, each on more narrow grounds than the plurality. Again, Chief Justice 

Burger and Justice Rehnquist dissented. Id. at 702, 717. 

—Privacy After Roe: Informational Privacy, Privacy of the Home or 

Personal Autonomy? 

[P. 1784, substitute for final sentence of paragraph carried over 

from p.1783:] 

Although Bowers has since been overruled by Lawrence v. Texas 4 based on precepts 

of personal autonomy, the latter case did not appear to signal the resurrection of 

the doctrine of protecting activities occurring in private places. 

[P. 1784, substitute for second full paragraph and all remaining 

paragraphs within the topic:] 

Despite the limiting language of Roe, the concept of privacy 

still retains sufficient strength to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services International,5 recognition of the ‘‘constitutional protection of 

individual autonomy in matters of childbearing’’ led the Court to 

invalidate a state statute that banned the distribution of contraceptives to adults except by licensed pharmacists and that forbade any 

person to sell or distribute contraceptives to a minor under 16.6

The Court significantly extended the Griswold-Baird line of cases 

so as to make the ‘‘decision whether or not to beget or bear a child’’ 

a ‘‘constitutionally protected right of privacy’’ interest that government may not burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to protect 

only that interest or interests. 

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AMENDMENT 14—RIGHTS GUARANTEED 89 

7 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and 

joined by Chief Justice Burger and by Justices Powell, Rehnquist, and O’Connor. 

The Chief Justice and Justice Powell added brief concurring opinions. Justice Blackmun dissented, joined by Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by Justices Brennan and Marshall, added a separate dissenting opinion. 8 ‘‘[N]one of the rights announced in those cases bears any resemblance to the 

claimed constitutional right of homosexuals to engage in acts of sodomy.’’ 478 U.S. 

at 190-91. 9 Justice White’s opinion for the Court in Hardwick sounded the same opposition to ‘‘announcing rights not readily identifiable in the Constitution’s text’’ that 

underlay his dissents in the abortion cases. 478 U.S. at 191. The Court concluded 

that there was no ‘‘fundamental right [of] homosexuals to engage in acts of consensual sodomy’’ because homosexual sodomy is neither a fundamental liberty ‘‘implicit 

in the concept of ordered liberty’’ nor is it ‘‘deeply rooted in this Nation’s history 

and tradition.’’ 478 U.S. at 191-92. 10 478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified 

this theme, concluding that constitutional protection for ‘‘the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.’’ Id. at 197. Justice Powell 

cautioned that Eighth Amendment proportionality principles might limit the severity with which states can punish the practices (Hardwick had been charged but not 

prosecuted, and had initiated the action to have the statute under which he had 

been charged declared unconstitutional). Id. 11The Court voiced concern that ‘‘it would be difficult . . . to limit the claimed 

right to homosexual conduct while leaving exposed to prosecution adultery, incest, 

and other sexual crimes even though they are committed in the home.’’ 478 U.S. 

at 195- 96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217- 

18) suggested that these crimes are readily distinguishable. 12 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, prohibits the practices regardless of the sex or marital status of the participants. See 

id. at 188 n.1. Justice Stevens too focused on this aspect, suggesting that the earlier 

privacy cases clearly bar a state from prohibiting sodomous acts by married couples, 

and that Georgia had not justified selective application to homosexuals. Id. at 219. 

Justice Blackmun would instead have addressed the issue more broadly as to 

whether the law violated an individual’s privacy right ‘‘to be let alone.’’ The privacy 

cases are not limited to protection of the family and the right to procreation, he asFor a time, the limits of the privacy doctrine were contained 

by the 1986 case of Bowers v. Hardwick,7 where the Court by a 5- 

4 vote roundly rejected the suggestion that the privacy cases protecting ‘‘family, marriage, or procreation’’ extend protection to private consensual homosexual sodomy,8 and also rejected the more 

comprehensive claim that the privacy cases ‘‘stand for the proposition that any kind of private sexual conduct between consenting 

adults is constitutionally insulated from state proscription.’’ 9

Heavy reliance was placed on the fact that prohibitions on sodomy 

have ‘‘ancient roots,’’ and on the fact that half of the states still 

prohibited the practice. 10 The privacy of the home does not protect 

all behavior from state regulation, and the Court was ‘‘unwilling to 

start down [the] road’’ of immunizing ‘‘voluntary sexual conduct between consenting adults.’’ 11 Interestingly, Justice Blackmun, in 

dissent, was most critical of the Court’s framing of the issue as one 

of homosexual sodomy, as the sodomy statute at issue was not so 

limited.12

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90 AMENDMENT 14—RIGHTS GUARANTEED 

serted, but instead stand for the broader principle of individual autonomy and 

choice in matters of sexual intimacy. 478 U.S. at 204-06. This position was rejected 

by the majority, however, which held that the thrust of the fundamental right of 

privacy in this area is one functionally related to ‘‘family, marriage, motherhood, 

procreation, and child rearing.’’ 478 U.S. at 190. See also Paul v. Davis, 424 U.S. 

693, 713 (1976). 13 539 U.S. 558 (2003). 14 Id. at 567. 15 Id. 16The Court noted with approval Justice Stevens’ dissenting opinion in Bowers 

v. Hardwick stating ‘‘that a governing majority in a State has traditionally viewed 

a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.’’ Id. at 577-78, citing Bowers v. Hardwick, 478 

U.S. at 216. 17The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality 

opinion), although Justices White, Powell, and Stevens in concurrence seemed to see 

no barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712. 

Yet, Lawrence v. Texas,13 by overruling Bowers, brought the 

outer limits of noneconomic substantive due process into question 

by once again using the language of ‘‘privacy’’ rights. Citing the 

line of personal autonomy cases starting with Griswold, the Court 

found that sodomy laws directed at homosexuals ‘‘seek to control a 

personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . . When sexuality finds overt expression in intimate conduct with another person, the conduct can 

be but one element in a personal bond that is more enduring. The 

liberty protected by the Constitution allows homosexual persons 

the right to make this choice.’’ 14

Although it quarreled with the Court’s finding in Bowers v. 

Hardwick that the proscription against homosexual behavior had 

‘‘ancient roots,’’ the Lawrence Court did not attempt to establish 

that such behavior was in fact historically condoned. This raises 

the question as to what limiting principles are available in evaluating future arguments based on personal autonomy. While the 

Court does seem to recognize that a State may have an interest in 

regulating personal relationships where there is a threat of ‘‘injury 

to a person or abuse of an institution the law protects,’’ 15 it also 

seems to reject reliance on historical notions of morality as guides 

to what personal relationships are to be protected.16 Thus, the parameters for regulation of sexual conduct remain unclear. 

For instance, the extent to which the government may regulate 

the sexual activities of minors has not been established.17 Analysis 

of this question is hampered, however, because the Court has still 

not explained what about the particular facets of human relationships — marriage, family, procreation — gives rise to a protected 

liberty, and how indeed these factors vary significantly enough 

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AMENDMENT 14—RIGHTS GUARANTEED 91 

18 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in 

Carey, 431 U.S. at 684-85. 

19 In the same Term the Court significantly restricted its equal protection doctrine of ‘‘fundamental’’ interests - compelling interest justification by holding that 

the ‘‘key’’ to discovering whether an interest or a relationship is a ‘‘fundamental’’ 

one is not its social significance, but is whether it is ‘‘explicitly or implicitly guaranteed by the Constitution.’’ San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33- 

34 (1973). That this limitation has not been honored with respect to equal protection 

analysis or due process analysis can be easily discerned. Compare Zablocki v. 

Redhail, 434 U.S. 374 (1978) (opinion of Court), with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring). 

20 Jones v. Flowers, 126 S. Ct. 1708, 1719 (2006) (state’s certified letter, intended to notify a property owner that his property would be sold unless he satisfied 

a tax delinquency, was returned by the post office marked ‘‘unclaimed’’; the state 

should have taken additional reasonable steps to notify the property owner, as it 

would have been practicable for it to have done so.) 

from other human relationships. The Court’s observation in Roe v. 

Wade ‘‘that only personal rights that can be deemed ‘fundamental’ 

are included in this guarantee of personal privacy,’’ occasioning justification by a ‘‘compelling’’ interest,18 little elucidates the answers.19

Despite the Court’s decision in Lawrence, there is a question 

as to whether the development of noneconomic substantive due 

process will proceed under an expansive right of ‘‘privacy’’ or under 

the more limited ‘‘liberty’’ set out in Roe. There still appears to be 

a tendency to designate a right or interest as a right of privacy 

when the Court has already concluded that it is valid to extend an 

existing precedent of the privacy line of cases. Because much of 

this protection is also now accepted as a ‘‘liberty’’ protected under 

the due process clauses, however, the analytical significance of 

denominating the particular right or interest as an element of privacy seems open to question. 

PROCEDURAL DUE PROCESS: CIVIL 

Generally 

—The Requirements of Due Process 

[P. 1796, add to text after n.697] 

This may include an obligation, upon learning that an attempt at notice has failed, 

to take ‘‘reasonable followup measures’’ that may be available.20

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92 AMENDMENT 14—RIGHTS GUARANTEED 

21 125 S. Ct. 2796 (2005). 

22 125 S. Ct. at 2805. The Court also noted that the law did not specify the precise means of enforcement required; nor did it guarantee that, if a warrant were 

sought, it would be issued. Such indeterminancy is not the ‘‘hallmark of a duty that 

is mandatory.’’ Id. at 2807-08. 

23 125 S. Ct. at 2809-10. 

The Procedure Which is Due Process 

—The Property Interest 

[P. 1804, add new paragraph to text after paragraph ending with 

n.647:] 

The further one gets from traditional precepts of property, the 

more difficult it is to establish a due process claim based on entitlements. In Town of Castle Rock v. Gonzales,21 the Court considered 

whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by 

an estranged wife against her husband, despite having probable 

cause to believe the order had been violated. While noting statutory 

language that required that officers either use ‘‘every reasonable 

means to enforce [the] restraining order’’ or ‘‘seek a warrant for the 

arrest of the restrained person,’’ the Court resisted equating this 

language with the creation of an enforceable right, noting a longstanding tradition of police discretion coexisting with apparently 

mandatory arrest statutes.22 Finally, the Court even questioned 

whether finding that the statute contained mandatory language 

would have created a property right, as the wife, with no criminal 

enforcement authority herself, was merely an indirect recipient of 

the benefits of the governmental enforcement scheme.23

—The Liberty Interest 

[P. 1807, add new footnote to end of second paragraph] 

In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 6-7 (2003), holding 

that the state’s posting on the Internet of accurate information regarding convicted 

sex offenders did not violate their due process rights, the Court stated that Paul 

v. Davis ‘‘held that mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest.’’ 

[P. 1809, add to n.770:] 

Wilkinson v. Austin, 125 S. Ct. 2384, 2394-95 (2005) (assignment to SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an ‘‘atypcial and significant’’ deprivation.) 

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24 538 U.S. 715 (2003). 

—When Process is Due 

[P. 1815, add new paragraph to text after paragraph ending with 

n.801:] 

A delay in processing a claim for recovery of money paid to the 

government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David,24 a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by 

the city. When he subsequently sought to challenge the imposition 

of this impoundment fee, he was unable to obtain a hearing until 

27 days after his car had been towed. The Court held that the 

delay was reasonable, as the private interest affected — the temporary loss of the use of the money — could be compensated by the 

addition of an interest payment to any refund of the fee. Further 

factors considered were that a 30-day delay was unlikely to create 

a risk of significant factual errors, and that shortening the delay 

significantly would be administratively burdensome for the city. 

Jurisdiction 

—Notice: Service of Process 

[P. 1834, add to the beginning of n.903:] 

Thus, in Jones v. Flowers, 126 S. Ct. 1708 (2006), the Court held that, after a state’s 

certified letter, intended to notify a property owner that his property would be sold 

unless he satisfied a tax delinquency, was returned by the post office marked ‘‘unclaimed,’’ the state should have taken additional reasonable steps to notify the property owner, as it would have been practicable for it to have done so. 

Power of the States to Regulate Procedure 

—Costs, Damages, and Penalties 

[P. 1838, add to n.932 after citation to BMW v. Gore:] 

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (applying BMW 

v. Gore guideposts to hold that a $145 million judgment for refusing to settle an 

insurance claim was excessive, in part because it included consideration of conduct 

occurring in other states as well as conduct bearing no relation to the plaintiffs’ 

harm). 

[P. 1838, add to n.933:] 

The Court has suggested that awards exceeding a single-digit ratio between punitive 

and compensatory damages would be unlikely to pass scrutiny under due process, 

and that the greater the compensatory damages, the less this ratio should be. State 

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 424 (2003). 

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25 544 U.S. 622 (2005). 26 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court held, 

in dicta, that ‘‘no person should be tried while shackled or gagged except as a last 

resort.’’ 27 544 U.S. at 630, 631 (internal quotation marks omitted). 

PROCEDURAL DUE PROCESS — CRIMINAL 

The Elements of Due Process 

—Fair Trial 

[P. 1855, add to n.1025 after the citation to Rose v. Clark:] 

Middleton v. McNeil, 541 U.S. 43 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other 

instructions made correct standard clear). 

[P. 1856, add new paragraph to text following n.1028:] 

The use of visible physical restraints, such as shackles, leg 

irons or belly chains, in front of a jury, has been held to raise due 

process concerns. In Deck v. Missouri,25 the Court noted a rule dating back to English common law against bringing a defendant to 

trial in irons, and a modern day recognition that such measures 

should be used ‘‘only in the presence of a special need.’’ 26 The 

Court found that the use of visible restraints during the guilt 

phase of a trial undermines the presumption of innocence, limits 

the ability of a defendant to consult with counsel, and ‘‘affronts the 

dignity and decorum of judicial proceedings.’’ 27 Even where guilt 

has already been adjudicated, and a jury is considering the application of the death penalty, the latter two considerations would preclude the routine use of visible restraints. Only in special circumstances, such as where a judge has made particularized findings that security or flight risk requires it, can such restraints be 

used. 

[P. 1856, add to n.1030 after the citation to Crane v. Kentucky:] 

Holmes v. South Carolina, 126 S. Ct. 1727 (2006) (overturning rule that evidence 

of third-party guilt can be excluded if there is strong forensic evidence establishing 

defendant’s culpability). 

—Prosecutorial Misconduct 

[P. 1857, add to n.1037:] 

Nor has it been settled whether inconsistent prosecutorial theories in separate cases 

can be the basis for a due process challenge. Bradshaw v. Stumpf, 125 S. Ct. 2398 

(2005) (Court remanded case to determine whether death sentence was based on defendant’s role as shooter because subsequent prosecution against an accomplice proceeded on the theory that, based on new evidence, the accomplice had done the 

shooting). 

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28 Youngblood v. West Virginia, 126 S. Ct. 2188, 2190 (2006) (per curiam), 

quoting Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995). 

[P. 1858, add new footnote after the words ‘‘prosecutor withheld it’’ 

four lines from bottom of page:] 

A statement by the prosecution that it will ‘‘open its files’’ to the defendant appears 

to relieve the defendant of his obligation to request such materials. See Strickler v. 

Greene, 527 U.S. 263, 283-84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004). 

[P. 1859, add to n.1044:] 

Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag 

of cocaine 11 years after an arrest, the defendant having fled prosecution during the 

intervening years, does not violate due process). 

[P. 1859, add new paragraph to text after n.1049:] 

The Supreme Court has also held that ‘‘Brady suppression occurs when the government fails to turn over even evidence that is 

‘known only to police investigators and not to the prosecutor.’ . . . 

‘[T]he individual prosecutor has a duty to learn of any favorable 

evidence known to others acting on the government’s behalf in the 

case, including the police.’’’ 28

[P. 1859, add to n.1049:] 

See also Banks v. Dretke, 540 U.S. 668, 692-94 (2004) (failure of prosecution to correct perjured statement that witness had not been coached and to disclose that separate witness was a paid government informant established prejudice for purposes 

of habeas corpus review). 

—Proof, Burden of Proof, and Presumptions 

[P. 1861, add new footnote following ‘‘constitute the crime charged’’ 

in first sentence of first full paragraph of text:] 

Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These 

cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court 

remanded the cases to determine if the new interpretation was in effect at the time 

of the previous convictions, in which case those convictions would violate due process. 

[P. 1862, add to n.1063:] 

See also Dixon v. United States, 126 S. Ct. 2437 (2006) (requiring defendant in a 

federal firearms case to prove her duress defense by a preponderance of evidence 

did not violate due process). In Dixon, the prosecution had the burden of proving 

all elements of two federal firearms violations, one requiring a ‘‘willful’’ violation 

(having knowledge of the facts that constitute the offense) and the other requiring 

a ‘‘knowing’’ violation (acting with knowledge that the conduct was unlawful). Although establishing other forms of mens rea (such as ‘‘malicious intent’’) might require that a prosecutor prove that a defendant’s intent was without justification or 

excuse, the Court held that neither of the forms of mens rea at issue in Dixon contained such a requirement. Consequently, the burden of establishing the defense of 

duress could be placed on the defendant without violating due process. 

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29 126 S. Ct. 2709 (2006). 30 126 S. Ct. at 2731-32, 34-36. 31 Clark v. Arizona, 126 S. Ct. 2709 (2006). 32M’Naghten’s Case, 8 Eng. Rep. 718 (1843) states that ‘‘[T]o establish a defence 

on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from 

disease of the mind, as not to know the nature and quality of the act he was doing; 

or, if he did know it, that he did not know he was doing what was wrong.’’ 8 Eng. 

Rep., at 722. 33See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (‘‘If some controlling disease was, in truth, the acting power within [the defendant] which he could not resist, then he will not be responsible’’). 34See State v. Jones, 50 N.H. 369 (1871) (‘‘If the defendant had a mental disease which irresistibly impelled him to kill his wife — if the killing was the product 

of mental disease in him — he is not guilty; he is innocent — as innocent as if the 

act had been produced by involuntary intoxication, or by another person using his 

hand against his utmost resistance’’). 35 Clark, 126 S. Ct. at 2772. In Clark, the Court considered an Arizona statute, 

based on the M’Naghten case, that was amended to eliminate the defense of cog-

[P. 1862, add new paragraph to text after n.1064:] 

Despite the requirement that states prove each element of a 

criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be limited 

in the evidence that he may present to challenge this presumption. 

In Clark v. Arizona,29 the Court considered a rule adopted by the 

Supreme Court of Arizona that prohibited the use of expert testimony regarding mental disease or mental capacity to show lack of 

mens rea, ruling that the use of such evidence could be limited to 

an insanity defense. In Clark, the Court weighed competing interests to hold that such evidence could be ‘‘channeled’’ to the issue 

of insanity due to the controversial character of some categories of 

mental disease, the potential of mental-disease evidence to mislead, 

and the danger of according greater certainty to such evidence than 

experts claim for it.30

—The Problem of the Incompetent or Insane Defendant or Convict 

[P. 1865, add new paragraph to text after n.1078:] 

Where a defendant is found competent to stand trial, a state 

appears to have significant discretion in how it takes account of 

mental illness or defect at the time of the offense in determining 

criminal responsibility.31 The Court has identified several tests 

that are used by states in varying combinations to address the 

issue: the M’Naghten test (cognitive incapacity or moral incapacity),32 volitional incapacity,33 and the irresistible-impulse test.34

‘‘[I]t is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the 

conceptualization of criminal offenses, is substantially open to state 

choice.’’ 35

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nitive incapacity. The Court noted that, despite the amendment, proof of cognitive 

incapacity could still be introduced as it would be relevant (and sufficient) to prove 

the remaining moral incapacity test. Id. at 2722. 

36 477 U.S. at 416-17. 

37 536 U.S. at 317 (citation omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 

416-17 (1986)). The Court quoted this language again in Schriro v. Smith, holding 

that ‘‘[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury 

trial to resolve Smith’s mental retardation claim.’’ 126 S. Ct. 7, 9 (2005) (per curiam). States, the Court added, are entitled to ‘‘adopt[ ] their own measures for adjudicating claims of mental retardation,’’ though ‘‘those measures might, in their application, be subject to constitutional challenge.’’ Id. 

38 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he 

presented a risk of serious harm to himself or others). 

39 539 U.S. 166 (2003). 

40For instance, if the defendant is likely to remain civilly committed absent 

medication, this would diminish the government’s interest in prosecution. 539 U.S. 

at 180. 

[P. 1866, add to text after n.1085:] 

The Court, however, left ‘‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its 

execution of sentences.’’ 36

In Atkins v. Virginia, the Court held that the Eighth Amendment also prohibits the state from executing a person who is mentally retarded, and added, ‘‘As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave to the State[s] the task 

of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’’’ 37

Issues of substantive due process may arise if the government 

seeks to compel the medication of a person found to be incompetent 

to stand trial. In Washington v. Harper,38 the Court had found that 

an individual has a significant ‘‘liberty interest’’ in avoiding the unwanted administration of antipsychotic drugs. In Sell v. United 

States,39 the Court found that this liberty interest could in ‘‘rare’’ 

instances be outweighed by the government’s interest in bringing 

an incompetent individual to trial. First, however, the government 

must engage in a fact-specific inquiry as to whether this interest 

is important in a particular case.40 Second, the court must find 

that the treatment is likely to render the defendant competent to 

stand trial without resulting in side effects that will interfere with 

the defendant’s ability to assist counsel. Third, the court must find 

that less intrusive treatments are unlikely to achieve substantially 

the same results. Finally, the court must conclude that administration of the drugs is in the patient’s best medical interests. 

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41Wilkinson v. Austin, 125 S. Ct. 2384, 2394-95 (2005) (assignment to Ohio 

SuperMax prison, with attendant loss of parole eligibility and with only annual status review, constitutes an ‘‘atypcial and significant’’ deprivation). In Wilkinson, the 

Court upheld Ohio’s multi-level review process, despite the fact that a prisoner was 

provided only summary notice as to the allegations against him, a limited record 

was created, the prisoner could not call witnesses, and reevaluation of the assignment only occurred at one 30-day review and then annually. Id. at 2392-93, 2395- 

98. 

—Guilty Pleas 

[P. 1868, substitute for final sentence of n.1092:] 

However, this does not mean that a court accepting a guilty plea must explain all 

the elements of a crime, as it may rely on counsel’s representations to the defendant. Bradshaw v. Stumpf, 125 S. Ct. 2398 (2005) (where defendant maintained that 

shooting was done by someone else, guilty plea to aggravated manslaughter was 

still valid, as such charge did not require defendant to be the shooter). See also 

Blackledge v. Allison, 431 U.S. 63 (1977) (defendant may collaterally challenge 

guilty plea where defendant had been told not to allude to existence of a plea bargain in court, and such plea bargain was not honored). 

—Rights of Prisoners 

[P. 1874, add to n.1132:] 

There was some question as to the standard to be applied to racial discrimination 

in prisons after Turner v. Safley, 482 U.S. 78 (1987) (prison regulations upheld if 

‘‘reasonably related to legitimate penological interests’’). In Johnson v. California, 

543 U.S. 499 (2005), however, the Court held that discriminatory prison regulations 

would continue to be evaluated under a ‘‘strict scrutiny’’ standard, which requires 

that regulations be narrowly tailored to further compelling governmental interests. 

Id. at 509-13 (striking down a requirement that new or transferred prisoners at the 

reception area of a correctional facility be assigned a cellmate of the same race for 

up to 60 days before they are given a regular housing assignment). 

[P. 1875, add to n.1136:] 

See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation by unrelated children or children over whom a prisoner’s parental rights have 

been terminated, and all regular visitation for a period following a prisoner’s violation of substance abuse rules). 

[P. 1875, add new footnote to end of fifth sentence of first full paragraph:] 

For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to communicate through other visitors, by letter, or by phone. 539 U.S. at 135. 

[P. 1877, add new paragraph to text after n.1148, consisting of the 

following sentence followed by the material through n.1149:] 

Transfer of a prisoner to a high security facility, with an attendant 

loss of the right to parole, gave rise to a liberty interest, although 

the due process requirements to protect this interest are limited.41

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42 Rice v. Collins, 126 S. Ct. 969, 973-74 (2006) (citation omitted). The holding 

of the case was that, in a habeas corpus action, the Ninth Circuit ‘‘panel majority 

improperly substituted its evaluation of the record for that of the state trial court.’’ 

Id. at 973. Justice Breyer, joined by Justice Souter, concurred but suggested ‘‘that 

EQUAL PROTECTION OF LAWS 

Scope and Applicaton 

—State Action 

[P. 1893, add to n.1223:] 

But see City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 

(2003) (ministerial acts associated with a referendum repealing a low-income housing ordinance did not constitute state action, as the referendum process was facially 

neutral, and the potentially discriminatory repeal was never enforced). 

TRADITIONAL EQUAL PROTECTION: ECONOMIC 

REGULATION AND RELATED EXERCISES OF THE 

POLICE POWERS 

Taxation 

—Classification for Purposes of Taxation 

[P. 1923, add to n.1390 after the paragraph on ‘‘Electricity’’:] 

Gambling: slot machines on excursion river boats are taxed at a maximum rate of 

20 percent, while slot machines at a racetrack are taxed at a maximum rate of 36 

percent. Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003). 

[P. 1924, add to n.1391:] 

Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003). 

EQUAL PROTECTION AND RACE 

Juries 

[P. 1958, add new footnote at end of first sentence of second full 

paragraph:] 

476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a ‘‘wide 

variety of evidence, so long as the sum of proffered facts gives rise to an inference 

of discriminatory purpose.’’ Id. at 93-94. A state, however, cannot require that a defendant prove a prima facie case under a ‘‘more likely than not’’ standard, as the 

function of the Batson test is to create an inference and shift the burden to the state 

to offer race-neutral reasons for the peremptory challenges. Only then does a court 

weigh the likelihood that racial discrimination occurred. Johnson v. California, 543 

U.S. 499 (2005). 

[P. 1958, add to n.1594:] 

In fact, ‘‘[a]lthough the prosecutor must present a comprehensible reason, ‘[t]he [rebuttal] does not demand an explanation that is persuasive, or even plausible’; so 

long as the reason is not inherently discriminatory, it suffices.’’ 42 Such a rebuttal 

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100 AMENDMENT 14—RIGHTS GUARANTEED 

legal life without peremptories is no longer unthinkable’’ and ‘‘that we should reconsider Batson’s test and the peremptory challenge system as a whole.’’ Id. at 977. 43 Rice v. Collins, 126 S. Ct. at 974 (citations omitted). In Miller-El v. Dretke, 

125 S. Ct. 2317 (2005), the Court found discrimination in the use of peremptory 

strikes based on numerous factors, including the high ratio of minorities struck from 

the venire panel (of 20 blacks, nine were excused for cause and ten were peremptorily struck). Other factors considered by the Court were the fact that the race-neutral reasons given for the peremptory strikes of black panelists ‘‘appeared equally 

on point as to some white jurors who served,’’ id. at 2325-26; the prosecution used 

‘‘jury shuffling’’ (rearranging the order of panel members to be seated and questioned) twice when blacks were at the front of the line; the prosecutor asked different questions of black and white panel members; and there was evidence of a 

long-standing policy of excluding blacks from juries. 44 539 U.S. 306 (2003). 45 539 U.S. 244 (2003). 46 539 U.S. at 323-26. 

having been offered, ‘‘the court must then determine whether the defendant has carried his burden of proving purposeful discrimination. This final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but the ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts 

from, the opponent of the strike.’’’ 43

Permissible Remedial Utilization of Racial Classifications 

[P. 1970, add new paragraph to text at end of section:] 

By applying strict scrutiny, the Court was in essence affirming 

Justice Powell’s individual opinion in Bakke, which posited a strict 

scrutiny analysis of affirmative action. There remained the question, however, whether the Court would endorse Justice Powell’s 

suggestion that creating a diverse student body in an educational 

setting was a compelling governmental interest that would survive 

strict scrutiny analysis. It engendered some surprise, then, that the 

Court essentially reaffirmed Justice Powell’s line of reasoning in 

the cases of Grutter v. Bollinger 44 and Gratz v. Bollinger.45

In Grutter, the Court considered the admissions policy of the 

University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in his file (e.g., grade point average, Law School Admissions 

Test score, personal statement, recommendations) and on ‘‘soft’’ 

variables (e.g., strength of recommendations, quality of undergraduate institution, difficulty of undergraduate courses). The policy also considered ‘‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been 

historically discriminated against, like African-Americans, Hispanics and Native Americans . . . .’’ While the policy did not limit 

diversity to ‘‘ethnic and racial’’ classifications, it did seek a ‘‘critical 

mass’’ of minorities so that those students would not feel isolated.46

The Grutter Court found that student diversity provided significant benefits, not just to the students who otherwise might not 

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AMENDMENT 14—RIGHTS GUARANTEED 101 

47 539 U.S. at 335. 48 539 U.S. at 272-73. 49 438 U.S. at 317. 50 438 U.S. at 284-85. 

have been admitted, but also to the student body as a whole. These 

benefits include ‘‘cross-racial understanding,’’ the breakdown of racial stereotypes, the improvement of classroom discussion, and the 

preparation of students to enter a diverse workforce. Further, the 

Court emphasized the role of education in developing national leaders. Thus, the Court found that such efforts were important to ‘‘cultivate a set of leaders with legitimacy in the eyes of the citizenry.’’ 47 As the University did not rely on quotas, but rather relied on ‘‘flexible assessments’’ of a student’s record, the Court found 

that the University’s policy was narrowly tailored to achieve the 

substantial governmental interest of achieving a diverse student 

body. 

The law school’s admission policy, however, can be contrasted 

with the University’s undergraduate admission policy. In Gratz, the 

Court evaluated the undergraduate program’s ‘‘selection index,’’ 

which assigned applicants up to 150 points based on a variety of 

factors similar to those considered by the Law School. Applicants 

with scores over 100 were usually admitted, while those with 

scores of less than 100 fell into categories that could result in either admittance, postponement, or rejection. Of particular interest 

to the Court was the fact that an applicant was entitled to 20 

points based solely upon membership in an underrepresented racial 

or ethnic minority group. The policy also included the ‘‘flagging’’ of 

certain applications for special review, and underrepresented minorities were among those whose applications were flagged.48

The Court in Gratz struck down this admissions policy, relying 

again on Justice Powell’s opinion in Bakke. While Justice Powell 

had thought it permissible that ‘‘race or ethnic background . . . be 

deemed a ‘plus’ in a particular applicant’s file,’’ 49 the system he envisioned involved individualized consideration of all elements of an 

application to ascertain how the applicant would contribute to the 

diversity of the student body. According to the majority opinion in 

Gratz, the undergraduate policy did not provide for such individualized consideration. Instead, by automatically distributing 20 

points to every applicant from an underrepresented minority group, 

the policy effectively admitted every qualified minority applicant. 

While acknowledging that the volume of applications could make 

individualized assessments an ‘‘administrative challenge,’’ the 

Court found that the policy was not narrowly tailored to achieve 

the University’s asserted compelling interest in diversity.50

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51 541 U.S. 267 (2004). 52 541 U.S. at 285-86. 53 541 U.S. at 281-90. 54 541 U.S. at 271 (noting that Article I, § 4 provides that Congress may alter 

state laws regarding the manner of holding elections for Senators and Representatives). 55 541 U.S. at 307-08 (Justice Kennedy, concurring). 56 541 U.S. at 306 (Justice Kennedy, concurring). Although Justice Kennedy admitted that no workable model had been proposed either to evaluate the burden 

partisan districting imposed on representational rights or to confine judicial intervention once a violation has been established, he held out the possibility that such 

a standard may emerge, based on either equal protection or First Amendment principles. 

THE NEW EQUAL PROTECTION 

Fundamental Interests: The Political Process 

—Apportionment and Districting 

[P. 2012, add new paragraphs after the paragraph ending at n.1841:] 

In the following years, however, litigants seeking to apply 

Davis against alleged partisan gerrymandering were generally unsuccessful. Then, when the Supreme Court revisited the issue in 

2004, it all but closed the door on such challenges. In Vieth v. 

Jubelirer,51 a four-Justice plurality would have overturned Davis v. 

Bandemer’s holding that challenges to political gerrymandering are 

justiciable, but five Justices disagreed. The plurality argued that 

partisan considerations are an intrinsic part of establishing districts,52 that no judicially discernable or manageable standards 

exist to evaluate unlawful partisan gerrymandering,53 and that the 

power to address the issue of political gerrymandering resides in 

Congress.54

Of the five Justices who believed that challenges to political 

gerrymandering are justiciable, four dissented, but Justice Kennedy concurred with the four-Justice plurality’s holding, thereby 

upholding Pennsylvania’s congressional redistricting plan against a 

political gerrymandering challenge. Justice Kennedy agreed that 

the lack ‘‘of any agreed upon model of fair and effective representation’’ or ‘‘substantive principles of fairness in districting’’ left the 

Court with ‘‘no basis on which to define clear, manageable, and politically neutral standards for measuring the particular burden a 

given partisan classification imposes on representational rights.’’ 55

But, though he concurred in the holding, Justice Kennedy held out 

hope that judicial relief from political gerrymandering may be possible ‘‘if some limited and precise rationale were found’’ to evaluate 

partisan redistricting. Davis v. Bandemer was thus preserved.56

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AMENDMENT 14—RIGHTS GUARANTEED 103 

57 126 S. Ct. 2594, 2609 (2006). The design of one congressional district was 

held to violate the Voting Rights Act because it diluted the voting power of Latinos. 

Id. at 2612-2623. 58 126 S. Ct. at 2607. 59 126 S. Ct. at 2609-2610. 60 126 S. Ct. at 2610. 61 126 S. Ct. at 2610. 62 126 S. Ct. at 2611. 63 126 S. Ct. at 2612. 

In League of United Latin American Citizens v. Perry, a widely 

splintered Supreme Court plurality largely upheld a Texas congressional redistricting plan that the state legislature had drawn middecade, seemingly with the sole purpose of achieving a Republican 

congressional majority.57 The plurality did not revisit the 

justiciability question, but examined ‘‘whether appellants’ claims 

offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution.’’ 58 The plurality was ‘‘skeptical . . . of a claim that seeks to 

invalidate a statute based on a legislature’s unlawful motive but 

does so without reference to the content of the legislation enacted.’’ 

For one thing, although ‘‘[t]he legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican 

congressional majority, . . . partisan aims did not guide every line 

it drew.’’ 59 Apart from that, the ‘‘sole-motivation theory’’ fails to 

show what is necessary to identify an unconstitutional act of partisan gerrymandering: ‘‘a burden, as measured by a reliable standard, on the complainants’ representational rights.’’ 60 Moreover, 

‘‘[t]he sole-intent standard . . . is no more compelling when it is 

linked to . . . mid-decennial legislation. . . . [T]here is nothing inherently suspect about a legislature’s decision to replace a mid-decade a court-ordered plan with one of its own. And even if there 

were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.’’ 61 The plurality also found 

‘‘that mid-decade redistricting for exclusively partisan purposes’’ 

did not in this case ‘‘violate[ ] the one-person, one-vote requirement.’’ 62 Because ordinary mid-decade districting plans do not necessarily violate the one-person, one-vote requirement, the only 

thing out of the ordinary with respect to the Texas plan was that 

it was motivated solely by partisan considerations, and the plurality had already rejected the sole-motivation theory.63 League of 

United Latin American Citizens v. Perry thus left earlier Court 

precedent essentially unchanged. Claims of unconstitutional partisan gerrymandering are justiciable, but a reliable measure of 

what constitutes unconstitutional partisan gerrymandering remains to be found. 

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104 AMENDMENT 14—RIGHTS GUARANTEED 

64 538 U.S. 721 (2003). 65Statutory classifications that distinguish between males and females are subject to heightened scrutiny, Craig v. Boren, 429 U.S. 190, 197-199 (1976); they must 

be substantially related to the achievement of important governmental objectives, 

United States v. Virginia, 518 U.S. 515, 533 (1996). 66 538 U.S. at 736. 67 541 U.S. 509 (2004). 

Section 5. Enforcement 

Congressional Definition of Fourteenth Amendment Rights 

[P. 2047, add to text at end of section:] 

The Court’s most recent decisions in this area, however, seem 

to de-emphasize the need for a substantial legislative record when 

the class being discriminated against is protected by heightened 

scrutiny of the government’s action. In Nevada Department of 

Human Resources v. Hibbs,64 the Court considered the recovery of 

monetary damages against states under the Family and Medical 

Leave Act. This Act provides, among other things, that both male 

and female employees can take up to twelve weeks of unpaid leave 

to care for a close relative with a serious health condition. Noting 

that the Fourteenth Amendment could be used to justify prophylactic legislation, the Court accepted the argument that the Act 

was intended to prevent gender-based discrimination in the workplace tracing to the historic stereotype that women are the primary 

caregivers. Congress had documented historical instances of discrimination against women by state governments, and had found 

that women were provided maternity leave more often than men 

were provided paternity leave. 

Although there was a relative absence of proof that states were 

still engaged in wholesale gender discrimination in employment, 

the Court distinguished Garrett and Kimel, which had held Congress to a high standard for justifying legislation attempting to 

remedy classifications subject only to rational basis review. ‘‘Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult to meet than our rational 

basis test 65 . . . it was easier for Congress to show a pattern of 

state constitutional violations.’’ 66 Consequently, the Court upheld 

an across-the-board, routine employment benefit for all eligible employees as a congruent and proportional response to the gender 

stereotype. 

Applying the same approach, the Court in Tennessee v. Lane 67

held that Congress could authorize damage suits against a state for 

failing to provide disabled persons physical access to its courts. 

Title II of the Americans with Disabilities Act (ADA) provides that 

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AMENDMENT 14—RIGHTS GUARANTEED 105 

68 42 U.S.C. δ 12132. 69 531 U.S. 356 (2001). 70See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal defendant has a right to be present at all stages of a trial where his absence might 

frustrate the fairness of the proceedings). 71 541 U.S. at 531, 524. 72 541 U.S. at 541-542 (Rehnquist, C.J., dissenting). 73 541 U.S. at 524-525. Justice Rehnquist, in dissent, disputed Congress’ reliance on evidence of disability discrimination in the provision of services administered by local, not state, governments, as local entities do not enjoy the protections 

of sovereign immunity. Id. at 1999-2000. The majority, in response, noted that local 

courts are generally treated as arms of the state for sovereign immunity purposes, 

Mt. Healthy City Bd. of Educ. v. Doyle, U.S. 274, 280 (1977), and that the action 

of non-state actors had previously been considered in such pre-Boerne cases as 

South Carolina v. Katzenbach, 383 U.S. 301 312-15 (1966). 74 125 S. Ct. 877 (2006). 

no qualified person shall be excluded or denied the benefits of a 

public program by reason of a disability,68 but since disability is 

not a suspect class, the application of Title II against states would 

seem suspect under the reasoning of Garrett.69 Here, however, the 

Court evaluated the case as a limit on access to court proceedings, 

which, in some instances, has been held to be a fundamental right 

subject to heightened scrutiny under the Due Process Clause.70

Reviewing the legislative history of the ADA, the Court found 

that Title II, as applied, was a ‘‘congruent and proportional’’ response to a congressional finding of ‘‘a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.’’ 71

However, as pointed out by both the majority and by Justice 

Rehnquist in dissent, the deprivations relied upon by the majority 

were not limited to instances of imposing unconstitutional deprivations of court access to disabled persons.72 Rather, in an indication 

of a more robust approach where protection of fundamental rights 

is at issue, the majority also relied more broadly on a history of 

state limitations on the rights of the disabled in areas such as marriage and voting, and on limitations of access to public services beyond the use of courts.73

Congress’ authority under § 5 of the Fourteenth Amendment to 

abrogate states’ Eleventh Amendment immunity is strongest when 

a state’s conduct at issue in a case is alleged to have actually violated a constitutional right. In United States v. Georgia,74 a disabled state prison inmate who used a wheelchair for mobility alleged that his treatment by the state of Georgia and the conditions 

of his confinement violated, among other things, Title II of the 

ADA and the Eighth Amendment (as incorporated by the Fourteenth Amendment). A unanimous Court found that, to the extent 

that the prisoner’s claims under Title II for money damages were 

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106 AMENDMENT 14—RIGHTS GUARANTEED 

75 ‘‘While the Members of this Court have disagreed regarding the scope of Congress’ ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment, 

no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ 

of the Amendment by creating private remedies against the States for actual violations of those provisions.’’ 125 S. Ct. at 881 (citations omitted). 

based on conduct that independently violated the provisions of the 

Fourteenth Amendment, they could be applied against the state. In 

doing so, the Court declined to apply the congruent and proportional response test, distinguishing the cases applying that standard (discussed above) as not generally involving allegations of direct constitutional violations.75

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107 

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 

IN WHOLE OR IN PART BY THE SUPREME 

COURT OF THE UNITED STATES 

159. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, §§ 213, 318; 2 U.S.C. §§ 315(d)(4), 441k. 

Section 213 of the Bipartisan Campaign Reform Act of 2002 

(BCRA), which amended the Federal Election Campaign Act of 1971 

(FECA) to require political parties to choose between coordinated and 

independent expenditures during the post-nomination, pre-election 

period, is unconstitutional because it burdens parties’ right to make 

unlimited independent expenditures. Section 318 of BCRA, which 

amended FECA to prohibit persons ‘‘17 years old or younger’’ from 

contributing to candidates or political parties, is invalid as violating 

the First Amendment rights of minors. 

McConnell v. FEC, 540 U.S. 93 (2003). 

160. Act of April 30, 2003, Pub. L. 108-21, § 401(a)(1), 401(d)(2), 117 Stat. 

667, 670; 18 U.S.C. §§ 3553(b)(1), 3742(e). 

Two provisions of the Sentencing Reform Act, one that makes the 

Guidelines mandatory, and one that sets forth standards governing 

appeals of departures from the mandatory Guidelines, are invalidated. The Sixth Amendment right to jury trial limits sentence enhancements that courts may impose pursuant to the Guidelines. 

United States v. Booker, 543 U.S. 220 (2005). 

Justices concurring: Breyer, O’Connor, Kennedy, Ginsburg, and Rehnquist, 

C.J. 

Justices dissenting: Stevens, Souter, Scalia, and Thomas. 

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109 

STATE CONSTITUTIONAL OR STATUTORY PROVISIONS AND MUNICIPAL ORDINANCES HELD 

UNCONSTITUTIONAL OR HELD TO BE PREEMPTED BY FEDERAL LAW 

I. STATE LAWS HELD UNCONSTITUTIONAL 

936. Stogner v. California, 539 U.S. 607 (2003). 

A California statute that permits resurrection of an otherwise 

time-barred criminal prosecution for sexual abuse of a child, and that 

was itself enacted after the pre-existing limitations period had expired for the crimes at issue, violates the Ex Post Facto Clause of Art. 

I, § 10, cl. 1. 

Justices concurring: Breyer, Stevens, O’Connor, Souter, Ginsburg. 

Justices dissenting: Kennedy, Scalia, Thomas, Rehnquist., C.J. 

937. Virginia v. Black, 538 U.S. 343 (2003). 

The prima facie evidence provision of Virginia’s cross-burning 

statute, stating that a cross burning ‘‘shall be prima facie evidence of 

an intent to intimidate,’’ is unconstitutional. 

Justices concurring: O’Connor, Stevens, Breyer, Rehnquist, C.J. 

Justices concurring specially: Souter, Kennedy, Ginsburg. 

Justices dissenting: Scalia, Thomas. 

938. Lawrence v. Texas, 539 U.S. 558 (2003). 

A Texas statute making it a crime for two people of the same sex 

to engage in sodomy violates the Due Process Clause of the Fourteenth Amendment. The right to liberty protected by the Due Process 

Clause includes the right of two adults, ‘‘with full and mutual consent 

from each other, [to] engag[e] in sexual practices common to a homosexual lifestyle.’’ 

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer. 

Justice concurring specially: O’Connor. 

Justices dissenting: Scalia, Thomas, Rehnquist, C.J. 

939. Blakely v. Washington, 542 U.S. 296 (2004). 

Washington State’s sentencing law, which allows a judge to impose a sentence above the standard range if he finds ‘‘substantial and 

compelling reasons justifying an exceptional sentence,’’ is inconsistent 

with the Sixth Amendment right to trial by jury. 

Justices concurring: Scalia, Stevens, Souter, Thomas, and Ginsburg. 

Justices dissenting: O’Connor, Breyer, Kennedy, Rehnquist, C.J. 

940. Granholm v. Heald, 544 U.S. 460 (2005). 

Michigan and New York laws that allow in-state wineries to sell 

wine directly to consumers but prohibit or discourage out-of-state 

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110 I. STATE LAWS HELD UNCONSTITUTIONAL 

wineries from doing so discriminate against interstate commerce in 

violation of the Commerce Clause, and are not authorized by the 

Twenty-first Amendment. 

Justices concurring: Kennedy, Scalia, Souter, Ginsburg, and Breyer. 

Justices dissenting: Stevens, O’Connor, Thomas, Rehnquist, C.J. 

941. Halbert v. Michigan, 125 S. Ct. 2582 (2005). 

A Michigan statute making appointment of appellate counsel discretionary with the court for indigent criminal defendants who plead 

nolo contendere or guilty is unconstitutional to the extent that it deprives indigents of the right to the appointment of counsel to seek 

‘‘first-tier review’’ in the Michigan Court of Appeals. 

Justices concurring: Ginsburg, Stevens, O’Connor, Kennedy, Souter, and 

Breyer. 

Justices dissenting: Thomas, Scalia, and Rehnquist, C.J. 

942. Roper v. Simmons, 543 U.S. 551 (2005). 

Missouri’s law setting the minimum age at 16 for persons eligible 

for the death penalty violates the Eighth Amendment’s ban on cruel 

and unusual punishment as applied to persons who were under 18 at 

the time they committed their offense. 

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, and Breyer. 

Justices dissenting: O’Connor, Scalia, Thomas, and Rehnquist. 

943. Jones v. Flowers, 126 S. Ct. 1708 (2006). 

Arkansas statute violated due process when interpreted not to require the Arkansas Commissioner of State Lands to take additional 

reasonable steps to notify a property owner of intent to sell the property to satisfy a tax delinquency, after the initial notice was returned 

by the Post Office unclaimed. 

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, and Breyer. 

Justices dissenting: O’Connor, Scalia, Thomas, Rehnquist. 

944. Randall v. Sorrell, 126 S. Ct. 2479 (2006). 

Vermont campaign finance statute’s limitations on both expenditures and contributions violated freedom of speech. 

Justices concurring: Breyer, Roberts, C.J., Alito, Kennedy, Thomas, Scalia. 

Justices dissenting: Stevens, Souter, Ginsberg. 

III. STATE AND LOCAL LAWS HELD PREEMPTED 

BY FEDERAL LAW 

225. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003). 

Alabama’s usury statute is preempted by sections 85 and 86 of 

the National Bank Act as applied to interest rates charged by national banks. 

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I. STATE LAWS HELD UNCONSTITUTIONAL 111 

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg, Breyer, 

and Rehnquist, C.J. 

Justices dissenting: Scalia and Thomas. 

226. American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). 

California’s Holocaust Victim Insurance Relief Act, which requires any insurance company doing business in the state to disclose 

information about policies it or ‘‘related’’ companies sold in Europe between 1920 and 1945, is preempted as interfering with the Federal 

Government’s conduct of foreign relations. 

Justices concurring: Souter, O’Connor, Kennedy, Breyer, and Rehnquist, C.J.. 

Justices dissenting: Ginsburg, Stevens, Scalia, and Thomas. 

227. Aetna Health Inc. v. Davila, 542 U.S. 200 (2004). 

Suits brought in state court alleging that HMOs violated their 

duty under the Texas Health Care Liability Act ‘‘to exercise ordinary 

care when making health care treatment decisions’’ are preempted by 

ERISA § 502(a), which authorizes suit ‘‘to recover benefits due [a participant] under the terms of his plan.’’ 

228. Gonzales v. Raich, 125 S. Ct. 2195 (2005). 

California law allowing use of marijuana for medical purposes is 

preempted by the Controlled Substances Act’s categorical prohibition 

of the manufacture and possession of marijuana. 

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer. 

Justices dissenting: O’Connor, Thomas, Rehnquist, C.J. 

229. Arkansas Department of Health and Human Services v. Ahlborn, 126 

S. Ct. 1752 (2006). 

Arkansas statute that imposes lien on tort settlements in an 

amount equal to Medicaid costs, even when Medicaid costs exceed the 

portion of the settlement that represents medical costs, is preempted 

by the Federal Medicaid law insofar as the Arkansas statute applies 

to amounts other than medical costs. 

230. League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 

(2006). 

Part III of the opinion found a Texas redistricting statute to violate the federal Voting Rights Act because it diluted the voting power 

of Latinos. 

Justices concurring in Part III: Kennedy, Stevens, Souter, Ginsberg, Breyer. 

Justice dissenting from Part III: Roberts, C.J., Alito, Scalia, Thomas. 

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113 

SUPREME COURT DECISIONS OVERRULED BY 

SUBSEQUENT DECISION 

Overruling Case Overruled Case(s) 

221. Lapides v. Board of Regents, 535 

U.S. 613 (2002). 

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945). 

222. Atkins v. Virginia, 536 U.S. 304 

(2002). 

Penry v. Lynaugh, 492 U.S. 302 (1989). 

223. Ring v. Arizona, 536 U.S. 584 

(2002). 

Walton v. Arizona, 497 U.S. 639 (1990). 

224. Lawrence v. Texas, 539 U.S. 558 

(2003). 

Bowers v. Hardwick, 478 U.S. 186 

(1986). 

225. Crawford v. Washington, 541U.S. 

36 (2004). 

Ohio v. Roberts, 448 U.S. 56 (1980). 

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TABLE OF CASES 

Page 

Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995)........................................ 38 

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004) ................................................................... 7, 111 

Agins v. City of Tiburon, 447 U.S. 255 (1980) ......................................................................... 68, 69 

Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935) ........................ 29, 30 

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989)......................................... 33 

Allen v. Alleghany Co., 196 U.S. 458 (1905) .................................................................................. 30

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) ............................................................................ 30 

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ........................................................... 72 

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003).................................................. 18, 20, 21 

American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 125 S. Ct. 2419 

(2005) ............................................................................................................................................... 6 

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................................................... 72, 82 

Arizona v. Fulminante, 499 U.S. 279 (1991).................................................................................. 76 

Arkansas Department of Health and Human Services v. Ahlborn, 126 S. Ct. 1752 

(2006) ........................................................................................................................................... 111 

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998) .......................... 52 

Arlington Central School Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 2455 (2006) .......................... 3 

Arnett v. Kennedy, 416 U.S. 134 (1974)......................................................................................... 37 

Ashcroft v. ACLU, 542 U.S. 656 (2004).......................................................................................... 50 

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................... 80-82, 97, 112 

Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 961 (2006) ...................... 87 

Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984)......................................................................... 6 

Baker v. General Motors Corp., 522 U.S. 222 (1998).................................................................... 29 

Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900)........................................................... 30 

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839)................................................................ 29 

Banks v. Dretke, 540 U.S. 668 (2004) ............................................................................................ 95 

Barclays Bank v. Franchise Tax Bd., 512 U.S. 298 (1994)............................................................. 7 

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) .................................................................... 7 

Batson v. Kentucky, 476 U.S. 79 (1986)................................................................................. 99, 100 

Beard v. Banks, 126 S. Ct. 2572 (2006).......................................................................................... 46 

Bell v. Cone, 543 U.S. 447 (2005) ................................................................................................... 79 

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003) ................................................................ 110 

Berman v. Parker, 348 U.S. 26 (1954)............................................................................................ 67 

Bigelow v. Virginia, 421 U.S. 809 (1975)........................................................................................ 37 

Blackledge v. Allison, 431 U.S. 63 (1977)....................................................................................... 98 

Blakely v. Washington, 542 U.S. 296 (2004) ................................................................... 73, 74, 109 

Bloomer v. McQuewan, 55 U.S. (14 How.) 539 (1852) .................................................................... 9 

Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864) ................................................................. 9 

BMW v. Gore, 517 U.S. 599 (1996)................................................................................................. 93 

Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) .............................................. 37 

Board of Education v. Earls, 536 U.S. 822 (2002) ......................................................................... 59 

Board of Trustees v. Fox, 492 U.S. 469 (1989) .............................................................................. 38 

Board of Trustees v. Garrett, 531 U.S. 356 ......................................................................... 104, 105 

Bonaparte v. Tax Court, 104 U.S. 592 (1882)................................................................................ 29 

Bond v. Hume, 243 U.S. 15 (1917).................................................................................................. 29 

Bousley v. United States, 523 U.S. 614 (1998) .............................................................................. 83 

Bowers v. Hardwick, 478 U.S. 186 (1986)......................................................................... 87-90, 112 

Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. 465 (1888)............................................... 5 

Boy Scouts of America v. Dale, 530 U.S. 640 (2000)............................................................... 40, 49 

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) ....................................... 16, 25 

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116 TABLE OF CASES 

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932) ...................................................................... 29 

Bradshaw v. Stumpf, 125 S. Ct. 2398 (2005)........................................................................... 94, 98 

Brady v. Maryland, 373 U.S. 83 (1963).......................................................................................... 95 

Branzburg v. Hayes, 408 U.S. 665 (1972) ...................................................................................... 44

Breard v. Greene, 523 U.S. 371, 375 (1998)................................................................................... 17

Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006).................................................................. 55 

Broadrick v. Oklahoma, 413 U.S. 601 (1973)........................................................................... 21, 37 

Brosseau v. Haugen, 543 U.S. 194 (2004) ...................................................................................... 60

Brown v. Illinois, 422 U.S. 590 (1975)............................................................................................ 65 

Brown v. Legal Found. of Washington, 538 U.S. 216 (2003).................................................. 67, 68 

Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827) ...................................................................... 5 

Brown v. Sanders, 126 S, Ct, 884 (2006)........................................................................................ 79 

Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 

(1986) ............................................................................................................................................... 6 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................... 38, 42, 44 

Bunkley v. Florida, 538 U.S. 835 (2003) ........................................................................................ 95 

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ..................................................................................... 12 

California Democratic Party v. Jones, 530 U.S. 567 (2000).......................................................... 40 

California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) ......................................................... 85 

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............................................................. 10 

Caplin & Drysdale v. United States, 491 U.S. 617 (1989)............................................................ 26 

Carey v. Population Services International, 431 U.S. 678 (1977).................................... 88, 90, 91 

Carroll v. Lanza, 349 U.S. 408 (1955) ............................................................................................ 30 

Central Virginia Community College v. Katz, 126 S. Ct. 990 (2006) .......................................... 85 

Chavez v. Martinez, 538 U.S. 760 (2003)................................................................................. 64, 87 

Cheney v. United States District Court, 542 U.S. 367 (2004) ...................................................... 22 

Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887)................................................ 29 

Chinese Exclusion Case, 130 U.S. 581 (1889)................................................................................ 19 

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)............................... 35 

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003)........................................................................ 5 

City of Boerne v. Flores, 521 U.S. 507 (1997)................................................................................ 35

City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 (2003) .................. 99 

City of Houston v. Hill, 482 U.S. 451 (1987).................................................................................. 37 

City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ..................................................................... 57 

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) .................................................... 36 

City of Los Angeles v. David, 538 U.S. 715 (2003)........................................................................ 93 

City of San Diego v. Roe, 543 U.S. 77 (2004)................................................................................. 40

Civil Serv. Corp. v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) ............................... 21 

Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917) ....................................................... 6 

Clark v. Allen, 331 U.S. 503 (1947) ................................................................................................ 19 

Clark v. Arizona, 126 S. Ct. 2709 (2006)........................................................................................ 96 

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)......................................... 38 

Clemons v. Mississippi, 494 U.S. 738 (1990) ................................................................................. 73 

Clingman v. Beaver, 544 U.S. 581 (2005) ...................................................................................... 40

Clinton v. Jones, 520 U.S. 681 (1997)............................................................................................. 22 

Coker v. Georgia, 433 U.S. 584 (1977)............................................................................................ 82 

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) ........................................... 92 

Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987)............................................. 34 

Craig v. Boren, 429 U.S. 190 (1976) ............................................................................................. 104 

Crawford v. Washington, 541 U.S. 36 (2004)......................................................................... 75, 112 

Crosby v. National Foreign Trade Council, 530 U.S. 363 (1999) ................................................. 20 

Cutter v. Wilkinson, 544 U.S. 709 (2005) ................................................................................ 34, 35 

Cuyler v. Sullivan, 446 U.S. 335 (1980) ......................................................................................... 77 

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DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854 (2006) ............................................................... 26 

Dames & Moore v. Regan, 453 U.S. 654 (1981)............................................................................. 18 

Davis v. Bandemer, 478 U.S. 109 (1986)...................................................................................... 102

Davis v. Washington, 126 S. Ct. 2266 (2006) .................................................................... 75, 76, 80 

Deck v. Missouri, 544 U.S. 622 (2005)............................................................................................ 94 

Demore v. Kim, 538 U.S. 510 (2003) ........................................................................................ 65, 66 

Devenpeck v. Alford, 543 U.S. 146 (2004)...................................................................................... 55 

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). ................................... 27 

Dixon v. United States, 126 S. Ct. 2437 (2006) ............................................................................. 95 

Dobbert v. Florida, 432 U.S. 282 (1977)......................................................................................... 13 

Dolan v. City of Tigard, 512 U.S. 374 (1994) ................................................................................. 69

Doran v. Salem Inn, 422 U.S. 922 (1975)....................................................................................... 37 

Doremus v. Board of Education, 342 U.S. 429 (1952) ................................................................... 26 

Dunaway v. New York, 442 U.S. 200 (1979).................................................................................. 65 

Duro v. Reina, 495 U.S. 676 (1990) .................................................................................................. 8 

Edenfield v. Fane, 507 U.S. 761 (1993) .......................................................................................... 38 

Eisenstadt v. Baird, 405 U.S. 438 (1972) ....................................................................................... 88 

Eldred v. Ashcroft, 537 U.S. 186 (2003) ....................................................................................... 8, 9 

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) .................................................. 33, 35 

England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964) ....................................... 70 

Enmund v. Florida, 458 U.S. 782 (1982)........................................................................................ 82 

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ................................................................ 37 

Eunson v. Dodge, 85 U.S. (18 Wall.) 414 (1873).............................................................................. 9 

Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815) .............................................................................. 9, 10 

Ewing v. California, 538 U.S. 11 (2003)................................................................................... 83, 84 

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005)................................... 27 

Faretta v. California, 422 U.S. 806 (1975) ................................................................................... 105 

Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975) .............................................................................. 45 

FEC v. Beaumont, 539 U.S. 146 (2003).......................................................................................... 42 

Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986) ............................................................................................................................................. 42 

Federal Election Comm’n v. National Right to Work, 459 U.S. 197 (1982) ................................ 42 

Fellers v. United States, 540 U.S. 519 (2004)................................................................................ 78

Finch v. United States, 433 U.S. 676 (1977).................................................................................. 63

Fiore v. White, 528 U.S. 23 (1999).................................................................................................. 95 

Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003) ................................................ 99 

Flast v. Cohen, 392 U.S. 83 (1968) ................................................................................................. 26 

Florida v. Bostick, 501 U.S. 429 (1991) .......................................................................................... 57 

Florida v. Nixon, 543 U.S. 175 (2004) ............................................................................................ 77 

Fong Foo v. United States, 369 U.S. 141 (1962)............................................................................ 63 

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945)............................ 112 

Ford v. Wainwright, 477 U.S. 399 (1986) .......................................................................... 71, 80, 97 

Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003)........................................................ 29, 30 

Freedman v. Maryland, 380 U.S. 51 (1965) ................................................................................... 36 

Frey v. Hawkins, 540 U.S. 431 (2004)............................................................................................ 86 

Frisby v. Schultz, 487 U.S. 474 (1988) ........................................................................................... 37 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)..................................................................... 36 

Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) .................................................................................. 41 

Georgia v. Randolph, 126 S. Ct. 1515 (2006) ................................................................................. 58 

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979)................................................. 41 

Glenn v. Garth, 147 U.S. 360 (1893) .............................................................................................. 30 

Gonzales v. Raich, 125 S. Ct. 2195 (2005) ........................................................................... 3, 4, 111 

Graham v. John Deere Co., 383 U.S. 1 (1966)................................................................................. 8 

bjneal on GSDDPC74 with NOTICES

118 TABLE OF CASES 

Granholm v. Heald, 543 U.S. 220 (2005) ................................................................................. 6, 109 

Gratz v. Bollinger, 539 U.S. 244 (2003) ............................................................................... 100, 101 

Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................................................... 88, 90 

Groh v. Ramirez, 540 U.S. 551 (2004) ............................................................................................ 56 

Grutter v. Bollinger, 539 U.S. 306 (2003) ............................................................................ 100, 101 

Halbert v. Michigan, 125 S. Ct. 2582 (2005)................................................................................ 110 

Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).................................................................... 10, 15, 23 

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ................................................................................. 15, 66 

Harmelin v. Michigan, 501 U.S. 957 (1991)............................................................................. 83, 84 

Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985)...................................... 10 

Harris v. United States, 536 U.S. 545 (2002) ................................................................................ 72 

Harrison v. United States, 392 U.S. 219 (1968) ............................................................................ 65 

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) ................................................................ 67 

Hawke v. Smith, 253 U.S. 221 (1920)............................................................................................... 2 

Healy v. The Beer Institute, 491 U.S. 324 (1989) ........................................................................... 6 

Herrera v. Collins, 506 U.S. 390 (1993) ................................................................................... 27, 83 

Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451 (2004) ............................................................. 57 

Hildwin v. Florida, 490 U.S. 638 (1989)......................................................................................... 73 

Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003) ...................................................................... 6, 30 

Hines v. Davidowitz, 312 U.S. 52 (1941)........................................................................................ 19 

Holden v. Minnesota, 137 U.S. 483 (1890)..................................................................................... 13

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).............................................................. 2, 31 

Holmes v. Hurst, 174 U.S. 82 (1899) ................................................................................................ 9 

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840).......................................................................... 18 

Holmes v. South Carolina, 126 S. Ct. 1727 (2006) ........................................................................ 94 

House v. Bell, 126 S. Ct. 2064 (2006)....................................................................................... 27, 83 

Hudson v. Michigan, 126 S. Ct. 2159 (2006).................................................................................. 60 

Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995) ......................................... 39 

Idaho v. Wright, 497 U.S. 805 (1990) ............................................................................................. 75 

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003) ....................... 39, 52 

Illinois v. Allen, 397 U.S. 337 (1970).............................................................................................. 94 

Illinois v. Caballes, 543 U.S. 405 (2005) .................................................................................. 57, 58 

Illinois v. Fisher, 540 U.S. 544 (2004) ............................................................................................ 95 

Illinois v. Gates, 462 U.S. 213 (1983) ............................................................................................. 55 

Illinois v. Lidster, 540 U.S. 419 (2004)........................................................................................... 57 

Illinois v. Rodriguez, 497 U.S. 177 (1990)...................................................................................... 58 

In re Rahrer, 140 U.S. 545 (1891)..................................................................................................... 6 

In re Young, 141 F.3d 854 (8th Cir.) .............................................................................................. 35 

In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) ....................... 44, 45 

INS v. Chadha, 462 U.S. 919 (1983)........................................................................................... 2, 31 

INS v. St. Cyr, 533 U.S. 289 (2001)................................................................................................ 25 

Iowa v. Tovar, 541 U.S. 77 (2004)................................................................................................... 76 

Jinks v. Richland County, 538 U.S. 456 (2003) ............................................................................. 11 

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005)........................................................ 39 

Johnson v. California, 543 U.S. 499 (2005).............................................................................. 98, 99 

Johnson v. Eisentrager, 339 U.S. 763 (1950)................................................................................. 16 

Johnson v. New York Life Ins. Co., 187 U.S. 491 (1903) .............................................................. 30 

Jones v. Barnes, 463 U.S. 745 (1983) ............................................................................................. 77 

Jones v. Flowers, 126 S. Ct. 1708 (2006) ................................................................................. 91, 93

Kane v. Garcia Espitia, 126 S. Ct. 407 (2005) ............................................................................... 78 

Kansas v. Marsh, 126 S. Ct. 2516 (2006) ....................................................................................... 79 

Kaupp v. Texas, 538 U.S. 626 (2003).............................................................................................. 55 

Kelo v. City of New London, 125 S. Ct. 2655 (2005) ..................................................................... 67 

bjneal on GSDDPC74 with NOTICES

TABLE OF CASES 119 

Kidd v. Pearson, 128 U.S. 1 (1888)................................................................................................... 5 

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001) ..................................................................... 35 

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)................................................................... 104 

Kirk v. Louisiana, 536 U.S. 635 (2002) .......................................................................................... 55 

Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)................................................................................ 17 

Kowalski v. Tesmer, 543 U.S. 123 (2004)....................................................................................... 26 

Kryger v. Wilson, 242 U.S. 171 (1916) ........................................................................................... 29 

Kyles v. Whitley, 514 U.S. 419 (1995) ............................................................................................ 95 

Lapides v. Board of Regents, 535 U.S. 613 (2002)....................................................................... 112 

Lawrence v. Texas, 539 U.S. 558 (2003)...................................................... 87, 88, 90, 91, 109, 112 

League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 (2006) ............... 1, 103, 111 

Lee v. Illinois, 476 U.S. 530 (1986)................................................................................................. 74 

Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001) .................................................... 47 

Leisy v. Hardin, 135 U.S. 100 (1890)................................................................................................ 6 

Lindsey v. Washington, 301 U.S. 397 (1937) ................................................................................. 13 

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) ................................................................ 68, 69 

Lloyd v. Matthews, 155 U.S. 222 (1894)......................................................................................... 30 

Locke v. Davy, 540 U.S. 712 (2004) ................................................................................................ 34 

Lockyer v. Andrade, 538 U.S. 63 (2003)......................................................................................... 84 

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) ...................................... 68 

Lozada v. Deeds, 498 U.S. 430 (1991) ............................................................................................ 77 

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).................................................. 69 

Mallory v. United States, 354 U.S. 449 (1957) .............................................................................. 65 

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).............................................................................. 17 

Maryland v. Pringle, 540 U.S. 366 (2003)................................................................................ 56, 58 

Massachusetts v. Mellon, 262 U.S. 447 (1923) .............................................................................. 26 

Massiah v. United States, 377 U.S. 201 (1964) ............................................................................. 78 

Matter of Farber, 394 A.2d 330 (N.J. 1978)................................................................................... 45

McConnell v. Federal Election Commission, 540 U.S. 93 (2003) .................................... 42-44, 107 

McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722 (2005) ................................................ 33 

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)................................................................ 10 

McDaniel v. Paty, 435 U.S. 618 (1978)........................................................................................... 35 

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ..................................................... 39 

McMillan v. Pennsylvania, 477 U.S. 79 (1986).............................................................................. 72 

McNabb v. United States, 318 U.S. 332 (1943) ............................................................................. 65 

Medley, Petitioner, 134 U.S. 160 (1890)......................................................................................... 13 

Meese v. Keene, 481 U.S. 465 (1987).............................................................................................. 40 

Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005) ................................ 10 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).................................................... 39 

Michigan v. Tucker, 417 U.S. 433 (1974) ....................................................................................... 65 

Middleton v. McNeil, 541 U.S. 43 (2004)........................................................................................ 94 

Miller-El v. Dretke, 125 S. Ct. 2317 (2005).................................................................................. 100 

Miranda v. Arizona, 384 U.S. 436 (1966)................................................................................. 64, 65 

Missouri v. Seibert, 542 U.S. 600 (2004)........................................................................................ 64 

Mt. Healthy City Bd. of Educ. v. Doyle, U.S. 274 (1977)............................................................ 105 

Muehler v. Mena, 544 U.S. 93 (2005)............................................................................................. 56 

Mugler v. Kansas, 123 U.S. 623 (1887) ............................................................................................ 5 

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) ............................................... 36 

National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999) .................................... 20 

National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904)....................................................... 30 

Nev. Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003) ................................................. 104 

Nevada v. Hall, 440 U.S. 410 (1979)............................................................................................... 30 

New York Times v. Jascalevich, 439 U.S. 1301 (1978) ................................................................. 45 

bjneal on GSDDPC74 with NOTICES

120 TABLE OF CASES 

New York v. Belton, 453 U.S. 454 (1981)....................................................................................... 58 

New York v. Ferber, 458 U.S. 747 (1982)....................................................................................... 37 

Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002) ................................................................................. 49

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)............................................... 38 

Nollan v. California Coastal Commission, 483 U.S. 825 (1987)............................................. 68, 69 

Northern Insurance Company of New York v. Chatham County, 126 S. Ct. 1689 

(2006) ............................................................................................................................................. 85 

Ohio v. Roberts, 448 U.S. 56 (1980) ................................................................................. 74, 75, 112

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) ............................................................ 8 

Oregon v. Elstad, 470 U.S. 298 (1985)............................................................................................ 64 

Oregon v. Guzik, 126 S. Ct. 1226 (2006) ........................................................................................ 80 

Overton v. Bazzetta, 539 U.S. 126 (2003).................................................................... 45, 47, 84, 98 

O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003)........................................................ 35 

Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939) ....................... 30 

Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986)................................... 39 

Palazzolo v. Rhode Island, 533 U.S. 606 (2001)............................................................................. 69 

Parke v. Raley, 506 U.S. 20 (1992) ................................................................................................. 72 

Parker v. Levy, 417 U.S. 733 (1974)............................................................................................... 37 

Paul v. Davis, 424 U.S. 693 (1976) ........................................................................................... 90, 92 

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978) ........................................ 68, 69 

Pennell v. City of San Jose, 485 U.S. 1 (1988)............................................................................... 68

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984) ................................... 86 

Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 93 (1917) ................................... 30 

Penry v. Lynaugh, 492 U.S. 302 (1989).................................................................................. 82, 112 

Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003)........................... 7 

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ................................................................. 30 

Pierce County v. Guillen, 537 U.S. 129 (2003) ................................................................................ 4 

Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702 (D. Del. 1998)......................... 38 

Procunier v. Martinez, 416 U.S. 396 (1974)................................................................................... 46

Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000) .......................................... 52 

Queen v. Oxford, 173 Eng. Rep. 941 (1840) ................................................................................... 96 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).............................................................................. 49

Randall v. Sorrell, 126 S. Ct. 2479 (2006).............................................................................. 44, 110

Rasul v. Bush, 542 U.S. 466 (2004) .......................................................................................... 16, 25 

Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978)..................................... 100, 101 

Reno v. ACLU, 521 U.S. 844 (1997) ................................................................................... 36, 37, 52 

Rhodes v. Iowa, 170 U.S. 412 (1898) ................................................................................................ 6 

Rice v. Collins, 126 S. Ct. 969 (2006) ............................................................................................. 99 

Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988)............................. 39 

Ring v. Arizona, 536 U.S. 584 (2002) ......................................................................... 72, 73, 83, 112 

Roe v. Wade, 410 U.S. 113 (1973)............................................................................................. 88, 91 

Rompilla v. Beard, 125 S. Ct. 2456 (2005) ..................................................................................... 77 

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)......................................................................... 27 

Roper v. Simmons, 543 U.S. 551 (2005)................................................................................. 81, 110 

Rosato v. Superior Court, 124 Cal. Rptr. 427 (1975)..................................................................... 45 

Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 

(2006)....................................................................................................................................... 40, 48 

Rumsfeld v. Padilla, 542 U.S. 426 (2004)................................................................................. 16, 25

Rust v. Sullivan, 500 U.S. 173 (1991)............................................................................................. 47 

Sable Communications of California v. FCC, 492 U.S. 115 (1989) .............................................. 37 

Sabri v. United States, 541 U.S. 600 (2004).......................................................................... 2, 3, 11 

Saffle v. Parks, 494 U.S. 484 (1990) ............................................................................................... 83 

Samson v. California, 126 S. Ct. 2193 (2006) ................................................................................ 59 

bjneal on GSDDPC74 with NOTICES

TABLE OF CASES 121 

San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973)............................................................ 91 

San Remo Hotel, L.P. v. City and County of San Francisco, 125 S. Ct. 2491 

(2005) ............................................................................................................................................. 70 

Sanabria v. United States, 437 U.S. 54 (1978)........................................................................ 63, 64 

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)....................................................................... 17 

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003)........................................................................... 63 

Sawyer v. Smith, 497 U.S. 227 (1990)............................................................................................ 83 

Schlup v. Delo, 513 U.S. 298 (1995)................................................................................................ 83 

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................................. 27, 80, 83, 97 

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) ........................................................................... 29 

Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984)......................... 37 

Sell v. United States, 539 U.S. 166 (2003)..................................................................................... 97 

Sherbert v. Verner, 374 U.S. 398 (1963) ........................................................................................ 35 

Smalis v. Pennsylvania, 476 U.S. 140 (1986)................................................................................. 64 

Smith v. Doe, 538 U.S. 84 (2003).............................................................................................. 11, 12 

Smith v. Massachusetts, 543 U.S. 462 (2005) ......................................................................... 63, 64 

Smithsonian Institution v. St. John, 214 U.S. 19 (1909) .............................................................. 29 

Snyder v. Massachusetts, 291 U.S. 97 (1934)................................................................................ 74 

Solem v. Helm, 463 U.S. 277 (1983) ............................................................................................... 84 

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) ........................................ 8 

South Carolina v. Katzenbach, 383 U.S. 301 (1966). .................................................................. 105 

Spaziano v. Florida, 468 U.S. 447 (1984) ....................................................................................... 73 

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002).......................................................................... 7 

Stanford v. Kentucky, 492 U.S. 361 (1989).............................................................................. 81, 82 

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).............................................. 93 

State v. Jones, 50 N.H. 369 (1871) ................................................................................................. 96 

Stogner v. California, 539 U.S. 607 (2003)............................................................................. 12, 109 

Stone v. Graham, 449 U.S. 39, 41 (1980) ....................................................................................... 33 

Strickland v. Washington, 466 U.S. at 668 (1984) ........................................................................ 77 

Strickler v. Greene, 527 U.S. 263 (1999)........................................................................................ 95 

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 

302 (2002)................................................................................................................................ 68, 69 

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) ............................................. 40 

Taylor v. Alabama, 457 U.S. 687 (1982)......................................................................................... 65 

Teague v. Lane, 489 U.S. 288 (1989).............................................................................................. 82 

Tenet v. Doe, 544 U.S. 1 (2005)....................................................................................................... 22 

Tennard v. Dretke, 542 U.S. 274 (2004)......................................................................................... 80 

Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004)............................................. 85 

Tennessee v. Lane, 541 U.S. 509 (2004)....................................................................................... 104 

Terry v. Ohio, 392 U.S. 1 (1968) ..................................................................................................... 57 

Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911) .......................................................................... 30 

Thompson v. Oklahoma, 487 U.S. 815 (1988)................................................................................ 82 

Thompson v. Western States Medical Center, 535 U.S. 357 (2002) ...................................... 37, 38 

Thornburgh v. Abbott, 490 U.S. 401 (1989) ................................................................................... 46 

Thornton v. United States, 541 U.S. 615 (2004)............................................................................ 58 

Totten v. United States, 92 U.S. 105 (1875) .................................................................................. 22

Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005)............................................................. 92 

Trop v. Dulles, 356 U.S. 86 (1958).................................................................................................. 82 

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)........................................................... 38 

Turner v. Safley, 482 U.S. 78 (1987) ................................................................................... 45-47, 98 

United Public Workers v. Mitchell, 330 U.S. 75 (1947) ................................................................ 21 

United States v. Georgia, 125 S. Ct. 877 (2006).......................................................................... 105 

United States v. American Library Association, Inc., 539 U.S. 194 (2003)........ 47, 48, 50-52, 55, 

56 

bjneal on GSDDPC74 with NOTICES

122 TABLE OF CASES 

United States v. Arvizu, 534 U.S. 266 (2002).......................................................................... 57, 58 

United States v. Banks, 540 U.S. 31 (2003)................................................................................... 56

United States v. Belmont, 301 U.S. 324 (1937) ............................................................................. 18 

United States v. Booker, 543 U.S. 220 (2005) ....................................................................... 73, 107 

United States v. Cronic, 466 U.S. 648 (1984) ................................................................................ 77 

United States v. Di Re, 332 U.S. 581 (1948).................................................................................. 56

United States v. Drayton, 536 U.S. 194 (2002) ....................................................................... 57, 58 

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) ..................................................... 38 

United States v. Flores-Montano, 541 U.S. 49 (2004)................................................................... 57 

United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006)............................................................. 76 

United States v. Inadi, 475 U.S. 387 (1986) .................................................................................. 74

United States v. Knights, 534 U.S. 112 (2005).............................................................................. 59 

United States v. Lara, 541 U.S. 193 (2004) ............................................................................... 8, 63 

United States v. Lopez, 514 U.S. 549 (1995) ............................................................................... 4, 5 

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977) ........................................... 63, 64 

United States v. Matlock, 415 U.S. 164 (1974).............................................................................. 58 

United States v. Morrison, 529 U.S. 598 (2000) .............................................................................. 4 

United States v. National Treasury Employees Union, 513 U.S. 454 (1995).............................. 41 

United States v. Nixon, 418 U.S. 683 (1974) ................................................................................. 22 

United States v. One Bag of Paradise Feathers, 256 F. 301 (2d Cir. 1919)................................ 17 

United States v. O’Brien, 391 U.S. 367 (1968) .............................................................................. 48 

United States v. Patane, 542 U.S. 630 (2004) ............................................................................... 65 

United States v. Pink, 315 U.S. 203 (1942) ............................................................................. 18, 19 

United States v. Reynolds, 345 U.S. 1 (1953) ................................................................................ 22 

United States v. Scott, 437 U.S. 82 (1978)..................................................................................... 64 

United States v. Virginia, 518 U.S. 515 (1996)............................................................................ 104 

Van Orden v. Perry, 125 S. Ct. 2854 (2005) .................................................................................. 33 

Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995) ........................................................ 59, 60 

Vieth v. Jubelirer, 541 U.S. 267 (2004).............................................................................. 1, 27, 102

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980)................... 37 

Virginia v. Black, 538 U.S. 343 (2003) ................................................................................... 49, 109 

Virginia v. Hicks, 539 U.S. 113 (2003) ........................................................................................... 37 

Walton v. Arizona, 497 U.S. 639 (1990) ........................................................................... 73, 79, 112 

Walz v. Tax Comm’n, 397 U.S. 664 (1970)..................................................................................... 34 

Ward v. Rock Against Racism, 491 U.S. 781 (1989)...................................................................... 37 

Washington v. Harper, 494 U.S. 210 (1990) .................................................................................. 97 

Webster v. Doe, 486 U.S. 592 (1988) .............................................................................................. 22 

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)................................. 49 

Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914) .............................................. 30, 81, 82 

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834)................................................................................ 9

White v. Illinois, 502 U.S. 346 (1992)............................................................................................. 75 

Wickard v. Filburn, 317 U.S. 111 (1942).......................................................................................... 4 

Wiggins v. Smith, 539 U.S. 510 (2003)........................................................................................... 77 

Wilkinson v. Austin, 125 S. Ct. 2384 (2005)............................................................................ 92, 98 

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 

(1985) ............................................................................................................................................. 70 

Wilson v. Arkansas, 514 U.S. 927 (1995) ....................................................................................... 60 

Woodford v. Visciotti, 537 U.S. 19 (2002)....................................................................................... 77 

Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869) .......................................................................... 5 

Wooley v. Maynard, 430 U.S. 705 (1977) ....................................................................................... 49

Yarborough v. Alvarado, 541 U.S. 652 (2004)................................................................................ 64 

Ybarra v. Illinois, 444 U.S. 85 (1979) ............................................................................................. 56 

Youngblood v. West Virginia, 126 S. Ct. 2188 (2006) ................................................................... 95 

bjneal on GSDDPC74 with NOTICES

TABLE OF CASES 123 

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)................................................... 15 

Zablocki v. Redhail, 434 U.S. 374 (1978)........................................................................................ 91 

Zadvydas v. Davis, 533 U.S. 678 (2001) ......................................................................................... 65 

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) ................................................. 40 

Zschernig v. Miller, 389 U.S. 429 (1968)................................................................................... 19-21 

bjneal on GSDDPC74 with NOTICES

bjneal on GSDDPC74 with NOTICES

125 

INDEX 

Page 

Affirmative action 

college admissions........................................................................................................... 100, 101 

Alcohol prohibition ...................................................................................................................... 6 

Aliens 

deportation, due process protections ....................................................................................... 65 

exclusion of ................................................................................................................................ 65 

Arrest 

arrestee’s right to be told reason for ....................................................................................... 55

custody, what constitutes ......................................................................................................... 64 

Association, freedom of 

blanket primaries...................................................................................................................... 40 

Authorization for Use of Military Force............................................................................ 15, 66 

Bipartisan Campaign Reform Act of 2002 

constitutionality ........................................................................................................................ 43 

Bribery 

of state and local officials, Congress’ power to prohibit........................................................... 2 

Campaign finance regulation 

First Amendment validity .................................................................................................. 42, 43 

Capital punishment 

aggravating factors ....................................................................................................... 27, 77, 79 

evidence of low intelligence ...................................................................................................... 80 

evidence, introduction of new............................................................................................. 80, 83 

habeas corpus limits on challenges ................................................................................... 80, 82 

juveniles, execution of............................................................................................................... 80 

mental retardation .................................................................................................................... 97 

of innocent persons ................................................................................................................... 27 

Children’s Internet Protection Act 

constitutionality .................................................................................................................. 47, 50 

Commerce 

foreign commerce, preemption of state regulation ................................................................... 7 

original package doctrine............................................................................................................ 5 

with Indian tribes ....................................................................................................................... 8 

Confession 

fruits of....................................................................................................................................... 65 

Confrontation Clause 

reliability test ............................................................................................................................ 74 

testimonial evidence, opportunity to cross-examine............................................................... 75 

testimonial evidence, what constitutes.................................................................................... 75 

Congress 

commerce power .......................................................................................................................... 3 

Fourteenth Amendment enforcement powers............................................................... 104, 105 

spending power............................................................................................................................ 2 

Consent decrees 

state’s sovereign immunity claim ............................................................................................ 86 

Copyrights and patents 

Copyright Term Extension Act .................................................................................................. 8

Copyrights and patents .......................................................................................................... 8, 9 

Counsel, assistance of 

waiver of right ........................................................................................................................... 76 

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126 INDEX 

Cruel and unusual punishment 

proportionality, three-strikes law ............................................................................................ 83 

Double jeopardy 

after acquittal by judge............................................................................................................. 63 

dual sovereign rule, tribal and Federal prosecutions............................................................. 63 

Due process, procedural 

burden of proof .................................................................................................................... 95, 96 

delay in processing fines........................................................................................................... 93 

enemy combatants, right to hearing on status ....................................................................... 66 

insanity, evidence...................................................................................................................... 96 

notice requirement.............................................................................................................. 91, 93 

sex offenders, Internet posting................................................................................................. 92 

Due process, substantive 

compelled medication................................................................................................................ 97 

compensable violation......................................................................................................... 87, 92 

liberty, autonomy interests, sexual privacy....................................................................... 88-91 

liberty, reputation ..................................................................................................................... 92 

punitive damages ...................................................................................................................... 93 

unwanted antipsychotic drugs ................................................................................................. 97

Education 

college admissions, affirmative action........................................................................... 100, 101 

Eleventh Amendment 

validity of ..................................................................................................................................... 2 

Enemy combatants 

detention, rights to hearing on status............................................................................... 15, 66 

Equal Protection 

affirmative action, college admissions................................................................................... 100 

burden of proof .......................................................................................................................... 99 

prison restrictions ..................................................................................................................... 98 

state action ................................................................................................................................ 99 

taxation ...................................................................................................................................... 99 

Establishment Clause 

Ten Commandments ................................................................................................................. 33 

Ex post facto laws ..................................................................................................................... 12 

Megan’s law not ex post facto .................................................................................................. 11 

revival of action after limitations period has run................................................................... 12 

Executive agreements 

status as law of land................................................................................................................. 17 

Executive privilege 

Vice-presidential task force ...................................................................................................... 22 

Fair trial 

burden of proof .......................................................................................................................... 95 

physical restraints, use of in front of jury............................................................................... 94 

prosecutorial misconduct.................................................................................................... 94, 95 

suppression of evidence ............................................................................................................ 95 

Foreign relations ....................................................................................................................... 18 

preemptive scope of federal power........................................................................................... 18 

Free Exercise of Religion 

Refusal to fund religion ............................................................................................................ 34 

Religious Land Use and Institutionalized Persons Act ................................................... 34, 35 

Freedom of Speech 

overbreadth................................................................................................................................ 36 

Full faith and credit 

application to laws versus judgments...................................................................................... 29 

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INDEX 127 

Full faith and credit—Continued 

conflict of laws........................................................................................................................... 30 

taking of property claim ........................................................................................................... 70 

Gerrymandering 

partisan gerrymandering.................................................................................................... 1, 103 

partisan, justiciability .................................................................................................. 1, 27, 102 

Guantanamo detainees 

federal court jurisdiction .......................................................................................................... 16 

Habeas corpus ........................................................................................................................... 25 

federal court jurisdiction, prisoners at Guantanamo Bay ............................................... 16, 25 

jurisdiction, location of prisoner’s custodian........................................................................... 25 

Hatch Act................................................................................................................................... 21 

Highway checkpoints 

soliciting aid in crime solving .................................................................................................. 57 

Holocaust Victim Insurance Relief Act.................................................................................... 18 

Homosexual conduct 

prohibition, denial of due process ............................................................................................ 87 

Individuals with Disabilities Education Act ............................................................................. 3 

Insanity defense 

tests of insanity......................................................................................................................... 96 

International Court of Justice.................................................................................................. 17 

Internet usage 

in public libraries, constitutionality of restrictions ................................................................ 51 

Jury trial, right to 

capital sentencing, factual findings ......................................................................................... 73

enhanced sentencing, factual basis.......................................................................................... 72 

sentencing factor, proof of ........................................................................................................ 71 

Libraries 

restrictions on Internet access, constitutionality.................................................................... 51 

Marijuana 

use for medical purposes ............................................................................................................ 4 

Megan’s Law 

constitutionality, Ex Post Facto Clause .................................................................................. 11 

Military commissions................................................................................................................ 10 

Native Americans 

tribal courts, dual sovereignty, double jeopardy..................................................................... 63 

tribal sovereignty ........................................................................................................................ 8 

Necessary and Proper Clause .............................................................................................. 5, 10 

legislation protecting spending power ..................................................................................... 11 

Orders, Resolutions, and Votes Clause ..................................................................................... 1 

Overruled decisions................................................................................................................. 112 

Pledge of Allegiance 

dismissal of challenge for lack of standing ............................................................................. 33 

Preemption................................................................................................................................. 20 

foreign relations, state laws impinging on federal powers ............................................... 18-20 

state laws conflicting with executive agreements ............................................................ 18, 20 

President 

foreign relations powers, executive agreements............................................................... 17, 18 

power to detain enemy combatants ......................................................................................... 15 

Prisons 

discrimination, racial ................................................................................................................ 98 

speech restrictions..................................................................................................................... 46 

visitation rules .............................................................................................................. 45, 84, 98 

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128 INDEX 

Privacy 

abortion ...................................................................................................................................... 88 

sexual autonomy, homosexual conduct ....................................................................... 87, 89, 90 

Punitive damages 

excessive, due process violation ............................................................................................... 93 

ratio to compensatory damages, due process.......................................................................... 93 

Racial discrimination 

burden of proof .......................................................................................................................... 99 

Religion 

theology students, exclusion from scholarship........................................................................ 35 

Rooker-Feldman doctrine ......................................................................................................... 27 

Search and seizure 

anticipatory warrant................................................................................................................. 55 

drug testing in schools.............................................................................................................. 59 

highway checkpoint................................................................................................................... 57 

knock-and-announce procedure................................................................................................ 60 

objection by co-occupant ........................................................................................................... 58 

particularity requirement, warrants ....................................................................................... 56 

Terry stop, identity request...................................................................................................... 57 

use of reasonable force.............................................................................................................. 56 

warrant, particularity requirement ......................................................................................... 56 

warrantless entry...................................................................................................................... 55 

Self-incrimination 

Miranda warning, two-step questioning.................................................................................. 64 

Self-representation.................................................................................................................... 78 

Sentencing Guidelines, federal................................................................................................. 73 

September 11, 2001 attack....................................................................................................... 15 

Speech 

‘‘adult’’ business......................................................................................................................... 36 

campaign finance restrictions .................................................................................................. 42 

Censorship of Internet .............................................................................................................. 50 

charitable solicitors................................................................................................................... 52 

Child Online Protection Act ..................................................................................................... 50 

Children’s Internet Protection Act..................................................................................... 47, 50 

commercial speech..................................................................................................................... 49 

compelled speech................................................................................................................. 39, 48 

cross burning prohibition.......................................................................................................... 49 

government employees.............................................................................................................. 40 

harm caused by, not merely conjectural.................................................................................. 38 

indecent material, evidence of harm ....................................................................................... 38 

Internet restrictions, libraries and schools................................................................. 47, 50, 51 

journalists’ privilege.................................................................................................................. 45 

narrow tailoring requirement................................................................................................... 37 

overbreadth doctrine................................................................................................................. 36 

prison restrictions ..................................................................................................................... 46 

public forum doctrine, Internet................................................................................................ 51 

unconstitutional conditions ...................................................................................................... 47 

vagueness................................................................................................................................... 36 

Spending power 

prohibition on bribing state and local officials ......................................................................... 2 

Standing to sue 

taxpayer standing ..................................................................................................................... 26 

States 

immunity from suit in federal courts ...................................................................................... 85 

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INDEX 129 

States—Continued 

Supremacy Clause..................................................................................................................... 20 

executive agreements as preempting conflicting state laws.................................................. 17 

Taking of property 

exhaustion of state remedies.................................................................................................... 70 

just compensation...................................................................................................................... 68 

public use................................................................................................................................... 67 

regulatory................................................................................................................................... 68 

Three-strikes law 

not cruel and unusual punishment.......................................................................................... 83 

Treaties 

determining their meaning....................................................................................................... 16 

Unconstitutional conditions 

not imposed by Children’s Internet Protection Act.......................................................... 47, 51 

Webb-Kenyon Act........................................................................................................................ 5 

bjneal on GSDDPC74 with NOTICES