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 

108TH CONGRESS DOCUMENT " SENATE ! 2d Session No. 108–19 

THE CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA 

ANALYSIS AND INTERPRETATION 

2004 SUPPLEMENT 

ANALYSIS OF CASES DECIDED BY THE SUPREME 

COURT OF THE UNITED STATES TO JUNE 29, 2004 

PREPARED BY THE

CONGRESSIONAL RESEARCH SERVICE

LIBRARY OF CONGRESS

JOHNNY H. KILLIAN

GEORGE A. COSTELLO

KENNETH R. THOMAS

CO-EDITORS

HENRY COHEN

ROBERT MELTZ

CONTRIBUTORS

U.S. GOVERNMENT PRINTING OFFICE 

97–081 PS WASHINGTON : 2004 

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 

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SENEAGLE
1

1Sabri v. United States, 124 S. Ct. 1941, 1946 (2004). 

2 124 S. Ct. at 1946. 

ARTICLE I 

Article I, § 8, cl. 1. Power to Tax and Spend 

SPENDING FOR THE GENERAL WELFARE 

Scope of the Power 

[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.’’ 1 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.’’ 2

—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, 124 S. Ct. 1941 (2004). 

Article I, § 8, cl. 3. Commerce Power 

POWER TO REGULATE COMMERCE 

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 

2 ARTICLE I—LEGISLATIVE DEPARTMENT 

3 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.’’ 4 Reliance could not be placed on Executive statements, the Court explained, 

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

‘‘three broad categories of activities 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 

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

those activities that substantially affect interstate commerce.’’ 3

[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 

—Congressional Authorization of Impermissible State Action 

[P. 231, add to n.957 after initial cite:] 

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 

—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.4 The result 

ARTICLE I—LEGISLATIVE DEPARTMENT 3

‘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. 

5The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139– 

49 (1993). 

of the case, perhaps intended, is that foreign corporations have less 

protection under the negative commerce clause.5

Concurrent Federal and State Jurisdiction 

—The Standards Applied 

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

Aetna Health, Inc. v. Davila, 124 S. Ct. 2488 (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). 

COMMERCE WITH INDIAN TRIBES 

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

United States v. Lara, 124 S. Ct. 1628, 1633 (2004). 

[P. 281, add to end of 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, 124 S. Ct. 1628 (2004). 

4 ARTICLE I—LEGISLATIVE DEPARTMENT 

6Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 

7 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America 

v. Universal City Studios, 464 U.S. 417, 429 (1984)). 8 537 U.S. at 204. 

9The 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. While 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. 10 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). 

Clause 8. Copyrights and Patents 

COPYRIGHTS AND PATENTS 

Origins and Scope of the Power 

[P. 312, delete sentence ending with n.1421 and substitute the following:]

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.6

[P. 313, delete final sentence of paragraph] 

[P. 313, add new paragraph to 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.7 ‘‘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.’’ 8 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 is largely 

unenforceable. The protection period may extend well beyond the 

life of the author or inventor.9 Congress may extend the duration 

of existing copyrights and patents, and in so doing may protect the 

rights of purchasers and assignees.10

ARTICLE I—LEGISLATIVE DEPARTMENT 5

11 17 U.S. (4 Wheat.) 316 (1819). 12 Jinks v. Richland County, 538 U.S. 456 (2003). 13 538 U.S. 84 (2003). 

Clause 18. Necessary and Proper Clause 

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 11 set the standard in 

words that reverberate to this day. 

Operation of Clause 

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

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

124 S. Ct. 1941 (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 following 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,12

Section 10—Powers Denied to States 

Clause 1. 

EX POST FACTO LAWS 

—Scope of the Provision 

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

Distinguishing between civil and penal laws was at the heart 

of the Court’s decision in Smith v. Doe13 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 

6 ARTICLE I—LEGISLATIVE DEPARTMENT 

14 538 U.S. at 92. 15The 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. 16 538 U.S. at 102. 17 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.18 538 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. 19 3 U.S. (3 Dall.) 386, 389 (1798). 

is ‘‘the clearest proof’’ of punitive effect.14 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.’’ 15 The Act does not subject the registrants to an ‘‘affirmative disability or restraint’’; there is no physical restraint or 

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.16 Nor is the act ‘‘excessive’’ in relation to its regulatory purpose.17 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.18

—Changes in Punishment 

[P. 383, add as 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.19

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 prosecuVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
ARTICLE I—LEGISLATIVE DEPARTMENT 7

20 539 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). 21Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of 

Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977). 22 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 23Medley, Petitioner, 134 U.S. 160, 171 (1890). 

tion.’’ Such a law, the Court ruled in Stogner v. California,20 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 

impose the maximum sentence,21 that required solitary confinement for prisoners previously sentenced to death,22 and that allowed a warden to fix, within limits of one week, and keep secret 

the time of execution.23

9

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

2 Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004). There was no opinion of the Court. 

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

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. 124 S. Ct. at 

2648, 2652 (2004). 

ARTICLE II 

Section 2. Powers and Duties of the President 

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

COMMANDER-IN-CHIEF

[P. 483, add new section following ‘‘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 miliary 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 

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

10 ARTICLE II—EXECUTIVE DEPARTMENT 

4 124 S. Ct. 2686 (2004). 

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

6The petitioners were Australians and Kuwaitis. 

7 124 S. Ct. at 2983 (2004). 

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, 124 

S. Ct. 2711 (2004) (federal court’s jurisdiction over Secretary of Defense Rumsfeld 

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

9 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). 

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 which 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 

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.9 The Supreme Court, however, found another basis for holding state laws 

to be preempted by executive agreements, ultimately relying on the 

Constitution’s vesting of foreign relations power in the national 

government.

ARTICLE II—EXECUTIVE DEPARTMENT 11

10 539 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. 11 539 U.S. at 416. 12 539 U.S. at 413. 13 539 U.S. at 420. 14 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 

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 

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

Belmont and Pink were reinforced in American Insurance Association v. Garamendi.10 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.’’ 11

The preemptive reach of executive agreements stems from ‘‘the 

Constitution’s allocation of the foreign relations power to the National Government.’’ 12 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.13

[P. 529, add new section following ‘‘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 is that 

some state laws impinging on foreign relations are invalid even in 

the absence of already-established federal policy. The Supreme 

Court has so stated and so held. 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.’’ 14 A hundred 

12 ARTICLE II—EXECUTIVE DEPARTMENT 

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’’). 15 United States v. Pink, 315 U.S. 203, 233–34 (1942). Chief Justice Stone and 

Justice Roberts dissented. 16 389 U.S. 429 (1968). 17 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. 18 389 U.S. at 440. 19 389 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.’’ 15

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,16 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.’’ 17 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.18 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.’’ 19

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 

ARTICLE II—EXECUTIVE DEPARTMENT 13

20See, 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). 21 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). 22 American Insurance Association v. Garamendi, 539 U.S. at 419 & n.11 (2003). 23 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 n.20. 24 Arguably, part of the ‘‘executive power’’ vested in the President by Art. II, § 1 

is a power to conduct foreign relations. 

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.20 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.21

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 it 

discussed Zschernig at some length, saw no need to resolve issues 

relating to its scope.22

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 prohibitions23 and grants 

of power.24 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 

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 reVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
14 ARTICLE II—EXECUTIVE DEPARTMENT 

25 539 U.S. at 419 n.11. 26 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.20, at 164). But Justice Ginsburg also voiced more general misgivings with judges 

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

see Goldsmith, supra n.20, at 1631, describing Zschernig preemption as ‘‘a form of 

the federal common law of foreign relations.’’ 27 Cheney v. United States District Court, 124 S. Ct. 2576 (2004). 28While the information sought in Nixon was important to ‘‘the constitutional 

need for production of 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.’ ’’ 124 S. Ct. at 2580, 2589. 29The 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.’’ 124 S. Ct. at 2580. But cf. Clinton v. Jones, 520 

U.S. 681, 702 (1997). 

sponsibility, ‘‘but in a way that affects foreign relations.’’ 25 We

must await further litigation to see whether the Court employs this 

distinction.26

THE EXECUTIVE ESTABLISHMENT 

The Presidential Aegis: Demands for Papers 

—Prosecutorial and Grand Jury Access to Presidential Documents 

[P. 559, add new paragraph 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.27 Although

the case was remanded on narrow technical grounds, the Court distinguished United States v. Nixon,28 and, in instructing the appeals 

court on how to proceed, emphasized the importance of confidentiality for advice tendered the President.29

15

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, 124 S. 

Ct. 2686, 2692 (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, 124 S. Ct. 2686 (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, 124 S. Ct. 2711 (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 of ‘‘reliev[ing] 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 following 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

16 ARTICLE III—JUDICIAL DEPARTMENT 

Section 2. Judicial Power and Jurisdiction 

Clause 1. Cases and Controversies; Grants of Jurisdiction 

CASES AND CONTROVERSIES 

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, 124 S. Ct. 2519 

(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, 124 S. Ct. 1769 (2004) (no workable standard has been 

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

17

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 a law exempting from taxation certain 

bonds of the enacting State did not operate extraterritorially by virtue of the full 

faith and credit clause. 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 

under the full faith and credit clause. See also Western Life Indemnity Co. v. Rupp, 

ARTICLE IV 

Section 1. Full Faith and Credit 

RECOGNITION OF RIGHTS BASED UPON 

CONSTITUTIONS, STATUTES, COMMON LAW 

Development of the Modern Rule 

[P. 896, replace text of entire section with the following:] 

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 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 

18 ARTICLE IV—STATE’S RELATIONS 

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 

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

19

1Locke v. Davy, 124 S. Ct. 1307 (2004). 

2 124 S. Ct. at 1312–13. Excluding theology students but not students training 

for other professions was permissible, the Court explained, because ‘‘training someone to lead a congregation is an essentially religious endeavor,’’ and the Constitution’s special treatment of religion finds ‘‘no counterpart with respect to other 

callings or professions.’’ Id. at 1313. 

3 124 S. Ct. at 1312 (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)). 

FIRST AMENDMENT 

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 Sch. Dist. v. 

Newdow, 124 S. Ct. 2301 (2004). 

FREE EXERCISE OF RELIGION 

[P. 1061, add new paragraph at end of section:] 

‘‘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.1 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 

theology students for exclusion.2 Refusal to fund religious training, 

the Court observed, was ‘‘far milder’’ than restrictions on religious 

practices that have been held to offend the Free Exercise Clause.3

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 Sch. 

Dist. v. Newdow, 124 S. Ct. 2301 (2004). 

20 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 

4 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 

FREEDOM OF EXPRESSION—SPEECH AND PRESS 

The Doctrine of Prior Restraint 

—Obscenity and Prior Restraint 

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

City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S. Ct. 2219, 2226 (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, add to text following n.484, and replace remainder of section:]

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 

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).’’ 4

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 21

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). 5Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002). 

6Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989). 

7 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 

‘‘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 . . .’’). 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). 

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.’’ 5 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.’’ 6 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.7

The Court uses tests closely related to one another in these instances in which it does not apply strict scrutiny. It has indicated 

22 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 

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

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

10Turner 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). 11 424 U.S. at 22. 

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,’’ 8

and that ‘‘the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the 

commercial speech context.’’ 9

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.’’ 10

Particular Government Regulations That Restrict Expression 

—Government as Regulator of the Electoral Process: Elections 

[P. 1156, add to text following first full paragraph on page, and 

change beginning of second paragraph:] 

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. . . .’’ 11

Yet ‘‘[e]ven a significant interference with protected rights of politVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00024 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 23

12 424 U.S. at 25 (internal quotation marks omitted). 13 539 U.S. 146 (2003). 14 539 U.S. at 157. 15 540 U.S. 93 (2003). 16 540 U.S. at 133. 17 540 U.S. at 123. 18 540 U.S. at 204. 19 540 U.S. at 190. 

ical association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to 

avoid unnecessary abridgment of associational freedoms.’’ 12

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,13 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.’’ 14 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,15 the Court 

upheld against facial constitutional challenges key provisions of the 

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,’’ 16 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,’’ 17 and (2) the prohibition on corporations and labor unions’ 

using funds in their treasuries to finance ‘‘electioneering communications,’’ 18 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.’’ 19

24 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 

20 540 U.S. at 141. 21 540 U.S. at 136 (internal quotation marks omitted). 22 540 U.S. at 136. 23 540 U.S. at 205. 24 540 U.S. at 204. 

As for the soft-money prohibition on national party committees, the Court applied ‘‘the less rigorous scrutiny applicable to contribution limits.’’ 20 and found it ‘‘closely drawn to match a sufficiently important interest.’’ 21 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.’ ’’ 22

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.’’ 23

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 

administer segregated funds, or PACs,’’ for electioneering communications, the provision was not a complete ban on expression.24

—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. 

—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, 

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 25

25 539 U.S. 194, 199 (2003). 

26 539 U.S. at 211. 

27 539 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.’’ 

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.’’ 25 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.’’ 26 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 

that their benefactors might attach to the use of donated funds or 

other assistance.’’ 27

Government Regulation of Communications Industries 

—Commercial Speech 

[P. 1179, add to n.862:] 

In Nike, Inc. v. Kasky, 45 P.3d 243 (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. 

26 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 

28 538 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. 29 538 U.S. at 362–63. 30 Ashcroft v. ACLU, 124 S. Ct. 2783, 2792 (2004). Justice Breyer, dissenting, 

wrote that blocking and filtering software is not a less restrictive alternative because ‘‘it is part of the status quo’’ (id. at 2801) and ‘‘[i]t is always less restrictive 

to do nothing than to do something.’’ Id. at 2802. 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 2793. 

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 

cross with the intent of intimidating any person or group of persons.28 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. . . .’’ 29

—Non-obscene but Sexually Explicit and Indecent Expression 

[P. 1234, add to text following 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.’’ 30

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 

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 27

31 539 U.S. 194, 199 (2003). 

32 539 U.S. at 203. 

33 539 U.S. at 205. 

34 539 U.S. at 208. 

35 539 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. 

36 539 U.S. at 212. 

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.’’ 31 The plurality asked ‘‘whether libraries would violate the 

First Amendment by employing the filtering software that CIPA requires.’’ 32 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.33

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.’’ 34 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.’’ 35

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.’’ 36

28 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 

37 539 U.S. 194, 205 (2003). 

38 539 U.S. at 199. 

39 539 U.S. at 206. 

40 539 U.S. at 206 (citation omitted). 

Speech Plus—The Constitutional Law of Leafleting, Picketing, and 

Demonstrating

—The Public Forum 

[P. 1245, replace section’s final paragraph with:] 

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.’’ 37 The plurality therefore did not apply ‘‘strict scrutiny’’ in 

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.’’ 38 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.’ ’’ 39 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.’’ 40

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, 

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 29

41 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).

and buyers. Any person or organization with a computer connected 

to the Internet can ‘publish’ information.’’ 41

—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 

fraud actions against charitable solicitors who falsely represent that a ‘‘significant’’ 

amount of each dollar donated would be used for charitable purposes. 

31

1Groh v. Ramirez, 124 S. Ct. 1284 (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). 2 United States v. Banks, 124 S. Ct. 521 (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). 

FOURTH AMENDMENT 

SEARCH AND SEIZURE 

History and Scope of the Amendment 

—Arrests and Other Detentions 

[P. 1292, add to n.61 following cite to Terry v. Ohio:] 

Kaupp v. Texas, 538 U.S. 626 (2003). 

[P. 1294, add to n.69 following cite to Taylor v. Alabama:] 

Kaupp v. Texas, 538 U.S. 626 (2003). 

Searches and Seizures Pursuant to Warrant 

—Particularity

[P. 1304, add to 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 following 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, 124 S. Ct. 795 (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). 

32 AMENDMENT 4—SEARCHES AND SEIZURES 

3 Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451 (2004). 

4 124 S. Ct. at 2458. 

5Maryland v. Pringle, 124 S. Ct. 795 (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).

Valid Searches and Seizures Without Warrants 

—Detention Short of Arrest: Stop-and-Frisk 

[P. 1315, add to text following first sentence of paragraph that begins on page, and begin new paragraph with second sentence, as 

indicated:]

A partial answer was provided in 2004, the Court upholding a state 

law that required a suspect to disclose his name in the course of 

a valid Terry stop.3 Questions about a suspect’s identity ‘‘are a routine and accepted part of many Terry stops,’’ the Court explained.4

After Terry, the standard for stops . . .. 

—Vehicular Searches 

[P. 1325, add to n.247:] 

See also United States v. Flores-Montano, 124 S. Ct. 1582 (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, 124 S. Ct. 885 (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. 

[P. 1325, add to n.252 following cite to New York v. Belton:] 

Thornton v. United States, 124 S. Ct. 2127 (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.5

33

1 United States v. Lara, 124 S. Ct. 1628 (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 Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought by 

suspect interrogated in hospital but not prosecuted). 

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’’). 

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.2

Confessions: Police Interrogation, Due Process, and Self-Incrimination

—Miranda v. Arizona 

[P. 1425, add to n.340:] 

Yarborough v. Alvarado, 124 S. Ct. 2140 (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). 

34 AMENDMENT 5—RIGHTS OF PERSONS 

3 United States v. Patane, 124 S. Ct. 2601 (2004) (allowing introduction of a pistol, described as a ‘‘nontestimonial physical 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). 4See discussion under Art. I, § 8, cl. 4, The Power of Congress to Exclude Aliens. 5 538 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.363:] 

Elstad was distinguished in Missouri v. Seibert, 124 S. Ct. 2601 (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. 

[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, eliminate clause containing n.367 and substitute the following:]

On the other hand, the ‘‘fruits’’ of such an unwarned confession or 

admission may be used in some circumstances if the statement was 

voluntary.3

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.4

[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,5 however, the Court indicated that its holding 

in Zadvydas was quite limited. Upholding detention of permanent 

resident aliens without bond pending a determination of removVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00036 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
AMENDMENT 5—RIGHTS OF PERSONS 35

6 538 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. 7 124 S. Ct. 2633 (2004). 

8 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. 9There 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. 10 124 S. Ct. at 2648, 2652 (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 2660 (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 2660–61 (dissenting). 

ability, the Court reaffirmed Congress’s broad powers over aliens. 

‘‘[W]hen the Government deals with deportable aliens, the Due 

Process Clause does not require it to employ the least burdensome 

means to accomplish its goal.’’ 6

—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.7 During a military action in Afghanistan,8 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.9 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.10

36 AMENDMENT 5—RIGHTS OF PERSONS 

11 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id.

at 1422 n.2 (Justice Scalia dissenting). 

NATIONAL EMINENT DOMAIN POWER 

Public Use 

[P. 1465, add to text following n.575:] 

Most recently, the Court put forward an added indicium of ‘‘public 

use’’: whether the government purpose could be validly achieved by 

tax or user fee.11

Just Compensation 

[P. 1467, add to n.584 following first cite:] 

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). 

37

1For 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 determined 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.’’ 2 530 U.S. 466, 490 (2000). 

3 530 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). 4 530 U.S. at 490. 

5 530 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 

SIXTH AMENDMENT 

RIGHT TO TRIAL BY IMPARTIAL JURY 

Jury Trial 

—Criminal Proceedings to Which the Guarantee Applies 

[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. 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.1

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.2

‘‘The relevant inquiry is one not of form, but of effect.’’ 3 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.’’ 4 The one 

exception the Apprendi Court recognized was for sentencing enhancements based on recidivism.5 Subsequently, the Court refused 

38 AMENDMENT 6—RIGHTS OF ACCUSED 

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). 6Prior 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’s 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. 7 536 U.S. 584 (2002). 

8Walton 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). 9 ‘‘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. 10 124 S. Ct. 2531 (2004). 

to apply Apprendi’s principles to judicial factfinding that supports 

imposition of mandatory minimum sentences.6

Apprendi’s importance soon became evident as the Court applied its reasoning in other situations. In Ring v. Arizona,7 the

Court, overruling precedent,8 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.9

In Blakely v. Washington,10 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 plead 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 

AMENDMENT 6—RIGHTS OF ACCUSED 39

11 124 S. Ct. at 2537 (emphasis original). 12 Blakely-related developments may be followed at http//sentencing.typepad.

com (November 2004). 

13The Court has agreed to review two decisions raising issues under the Sentencing Guidelines. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and 

United States v. Fanfan, 2004 WL 1723113 (D. Me. 2004). The cases, 04–104 and 

04–105, respectively, were argued on October 4, 2004. 14 448 U.S. 56 (1980). ‘‘[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. 15 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), holding that the rule of ‘‘necessity’’ is confined to use of testimony from a prior judicial proceeding, and is 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). 

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,’’ i.e., ‘‘not the maximum sentence a judge may impose 

after finding additional facts, but the maximum he may impose 

without any additional findings.’’ 11 This approach brings into question sentencing under other states’ laws and in addition under the 

federal Sentencing Guidelines. Blakely is already generating litigation, and may also prompt legislative responses.12 Much will depend upon whether the Court, in applying Blakely, attempts to 

limit its reach.13

CONFRONTATION

[P. 1522, substitute for both paragraphs on page (entire content of 

page):]

In Ohio v. Roberts, a Court majority adopted the reliability test 

for satisfying the confrontation requirement through use of a statement by an unavailable witness.14 Roberts was applied and narrowed over the course of 24 years,15 and then overruled in 

40 AMENDMENT 6—RIGHTS OF ACCUSED 

16 124 S. Ct. 1354 (2004). 17 124 S. Ct. at 1370. 18 124 S. Ct. at 1371. 19 124 S. Ct. at 1374. 20The 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. 21 124 S. Ct. at 1374. 

Crawford v. Washington.16 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 crossexamination.’’ 17 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.’’ 18 ‘‘Where testimonial statements are at issue, 

the only indicium of reliability sufficient to satisfy constitutional 

demands is the one the Constitution actually prescribes: confrontation.’’ 19

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.20 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.21

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, 124 S. 

Ct. 1379 (2004) (holding not constitutionally required warnings detailing how an attorney could help inform the decision whether to plead guilty). 

AMENDMENT 6—RIGHTS OF ACCUSED 41

—Effective Assistance of Counsel 

[P. 1535, add to n.252 following initial cite:] 

Compare 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) with Woodford v. Visciotti, 537 U.S. 19 (2003) 

(state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by ‘‘severe’’ aggravating factors). 

[P. 1535, add to end of n.252:] 

Yarborough v. Gentry, 124 S. Ct. 1 (2003) (deference to attorney’s choice of tactics 

for closing argument). 

Right to Assistance of Counsel in Nontrial Situations 

—Custodial Interrogation 

[P. 1539, add note at end of paragraph continued from p. 1538:] 

The different issues in Fifth and Sixth Amendment cases were recently summarized 

in Fellers v. United States, 124 S. Ct. 1019 (2004), holding that absence of an interrogation is irrelevant in a Massiah-based Sixth Amendment inquiry. 

43

1 Ewing v. California, 538 U.S. 11 (2003). 

EIGHTH AMENDMENT 

CRUEL AND UNUSUAL PUNISHMENTS 

Capital Punishment 

—Limitations on Capital Punishment: Diminished Capacity 

[P. 1590, add to n.139:] 

See also Tennard v. Dretke, 124 S. Ct. 2562 (2004) (evidence of low intelligence 

should be admissible for mitigating purposes without being screened on basis of severity of disability). 

—Limitations on Habeas Corpus Review of Capital Sentences 

[P. 1594, remove last sentence from n.161, and add new note at end 

of 2d sentence of paragraph:] 

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 

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, 124 S. Ct. 2519, 2522 (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. . . . 

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.1 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 

44 AMENDMENT 8—PUNISHMENT FOR CRIME 

2 538 U.S. at 29–30. 

3 538 U.S. at 31. 

4 538 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). 5Lockyer 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. 6 538 U.S. at 72. 

‘‘rare case’’ of ‘‘gross disproportional[ity].’’ 2 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,3 and Justice Thomas, who asserted that the Cruel and Unusual Punishments Clause ‘‘contains no proportionality principle.’’ 4 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.’’ 5 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.’’ 6

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’’). 

45

1See Tennessee Student Assistance Corp. v. Hood, 124 S. Ct. 1905, 1910–13 

(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).

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

—Congressional Withdrawal of Immunity 

[P. 1639, add to n.85:] 

See also Frey v. Hawkins, 124 S. Ct. 899 (2004) (upholding enforcement of consent 

decree).

Suits Against State Officials 

[P. 1648, add new note at end of first paragraph:] 

In Frey v. Hawkins, 124 S. Ct. 899 (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

906.

47

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). 4 539 U.S. 558 (2003). 

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, delete rest of paragraph after n.552, and add the following:] 

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. 

—Privacy After Roe: Informational Privacy, Privacy of the Home or 

Personal Autonomy? 

[P. 1784, delete last sentence of paragraph carried over from p. 1783, 

and add the following:] 

Although Bowers has since been overruled by Lawrence v. Texas4

based on precepts of personal autonomy, the latter case did not apVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
48 AMENDMENT 14—RIGHTS GUARANTEED 

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. 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. 

pear to signal the resurrection of the doctrine of protecting activities occurring in private places. 

[P. 1784, delete second full paragraph, and all remaining paragraphs 

within the topic, and add the following:] 

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. 

For 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 proVerDate Nov 04 2004 09:34 Jan 07, 2005 Jkt 077500 PO 00000 Frm 00050 Fmt 8222 Sfmt 8222 C:\CONAN\SUPPLE~1\2004SUP.TXT PRFM99 PsN: 2004SUP
AMENDMENT 14—RIGHTS GUARANTEED 49

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 asserted, 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). 

tecting ‘‘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

Yet, the case of Lawrence v. Texas,13 by overruling Bowers, has

brought the outer limits of noneconomic substantive due process 

50 AMENDMENT 14—RIGHTS GUARANTEED 

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. 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 

into question by once again utilizing 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 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

AMENDMENT 14—RIGHTS GUARANTEED 51

the ‘‘key’’ to discovering whether an interest or a relationship is a ‘‘fundamental’’one 

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 restriction is not 

holding 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).20 538 U.S. 715 (2003). 

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 

The Procedure which is Due Process 

—The Liberty Interest 

[P. 1807, add new note 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.’’ 

—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,20 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 

52 AMENDMENT 14—RIGHTS GUARANTEED 

a risk of significant factual errors, and that shortening the delay 

significantly would be administratively burdensome for the city. 

Power of the States to Regulate Procedure 

—Costs, Damages, and Penalties 

[P. 1838, add to n.932 after the cite to BMW v. Gore:] 

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) (applying 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). 

PROCEDURAL DUE PROCESS: CRIMINAL 

The Elements of Due Process 

—Fair Trial 

[P. 1855, add to n.1025 after the cite to Rose v. Clark:] 

Middleton v. McNeil,124 S. Ct. 1830 (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.) 

—Prosecutorial Misconduct 

[P. 1858, add new note following the words ‘‘prosecutor withheld it’’ 

in the third sentence of the first full paragraph:] 

It should be noted that 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, 

124 S. Ct. 1256, 1273 (2004). 

[P. 1859, add to n.1044:] 

Illinois v. Fisher, 124 S. Ct. 1200 (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 to n.1049:] 

See also Banks v. Dretke, 124 S. Ct. 1256, 1273 (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). 

AMENDMENT 14—RIGHTS GUARANTEED 53

21 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he 

presented a risk of serious harm to himself or others). 

22 539 U.S. 166 (2003). 

23For 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. 

—Proof, Burden of Proof, and Presumptions 

[P. 1861, add note following the words ‘‘constitute the crime 

charged’’ in the first sentence of the first full paragraph:] 

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.

—The Problem of the Incompetent or Insane Defendant of Convict 

[P. 1866, add to text at end of section:] 

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,21 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,22 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.23 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. 

—Rights of Prisoners 

[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). 

54 AMENDMENT 14—RIGHTS GUARANTEED 

[P. 1875, add note to the end of the fifth sentence of the 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. Overton v. 

Bazzetta, 539 U.S. 126, 135 (2003). 

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 

—Permissible Remedial Utilization of Racial Classifications 

[P. 1970, add 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 

AMENDMENT 14—RIGHTS GUARANTEED 55

24 539 U.S. 306 (2003). 25 539 U.S. 244 (2003). 26 539 U.S. at 323–26. 27 539 U.S. at 335. 

Court essentially reaffirmed Justice Powell’s line of reasoning in 

the cases of Grutter v. Bollinger 24 and Gratz v. Bollinger.25

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.26

The Grutter Court found that student diversity provided significant benefits, not just to the students who otherwise might not 

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.’’ 27 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 

56 AMENDMENT 14—RIGHTS GUARANTEED 

28 539 U.S. at 272–73. 29 438 U.S. at 317. 30 438 U.S. at 284–85. 31 124 S. Ct. 1769 (2004). 32The plurality opinion was written by Justice Scalia, and joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Thomas. 33 124 S. Ct. at 1781. 34 124 S. Ct. at 1778–84. 

certain applications for special review, and underrepresented minorities were among those whose applications were flagged.28

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,’’ 29 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.30

THE NEW EQUAL PROTECTION 

Fundamental Interests: The Political Process 

—Apportionment and Districting 

[P. 2012, add the following paragraph after the paragraph ending at 

n.1841:]

In the following years, however, litigants seeking to apply 

Davis against alleged partisan gerrymandering were unsuccessful. 

And when the Supreme Court revisited the issue in 2004, it practically closed the door entirely on such challenges. In Vieth v. 

Jubelirer,31 the Court upheld Pennsylvania’s congressional redistricting plan against a political gerrymandering challenge. A fourJustice plurality 32 would have held the issue nonjusticiable, arguing that partisan considerations are an intrinsic part of establishing districts,33 that no judicially discernable or manageable 

standards exist to evaluate unlawful partisan gerrymandering,34

and that the power to address the issue of political gerrymandering 

AMENDMENT 14—RIGHTS GUARANTEED 57

35 124 S. Ct. at 1775 (noting that Article I, § 4 authorizes Congress to make or 

alter regulations of the manner of holding elections for Senators and Representatives). 36 124 S. Ct. at 1793 (Justice Kennedy, concurring). While Justice Kennedy admitted that no workable model had been proposed either to evaluate the burden 

partisan districting imposes 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. 37 538 U.S. 721 (2003). 38Statutory 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). 

resides in Congress.35 Justice Kennedy, while concurring in the 

judgment, held out hope that judicial relief from political gerrymandering may be possible ‘‘if some limited and precise rationale’’ 

is identified in the future to evaluate partisan redistricting.36

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,37 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 test38 ... it was easier for Congress 

58 AMENDMENT 14—RIGHTS GUARANTEED 

39 538 U.S. at 736. 

40 124 S. Ct. 1978 (2004). 

41 42 U.S.C. § 12132. 

42 531 U.S. 356 (2001). 

43See, 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). 

44 124 S. Ct. at 1989. 

45 124 S. Ct. at 1999. 

46 124 S. Ct. at 1989–90. 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). 

to show a pattern of state constitutional violations.’’ 39 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 40

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 

no qualified person shall be excluded or denied the benefits of a 

public program by reason of a disability,41 but since disability is 

not a suspect class, the application of Title II against states would 

seem suspect under the reasoning of Garrett.42 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.43 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.’’ 44 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.45 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.46

59

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, 124 S. Ct. 619 (2003). 

61

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, 124 S. Ct. 2531 (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. 

62 STATE LAWS HELD UNCONSTITUTIONAL 

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. 

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 Chief Justice 

Rehnquist.

Justices dissenting: Ginsburg, Stevens, Scalia, and Thomas. 

227. Aetna Health Inc. v. Davila, 124 S. Ct. 2488 (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.’’ 

63

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, 124 S. 

Ct. 1354 (2004). 

Ohio v. Roberts, 448 U.S. 56 (1980). 

65

TABLE OF CASES 

Page

Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) .................................... 22 

Aetna Health, Inc. v. Davila, 124 S. Ct. 2488 (2004) ............................................................ 3, 62 

Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935) .................... 17, 18 

Allen v. Alleghany Co., 196 U.S. 458 (1905)............................................................................... 17 

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981)......................................................................... 18 

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ....................................................... 37 

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003)........................................ 11, 13, 14, 62 

Apprendi v. New Jersey, 530 U.S. 466 (2000)...................................................................... 37, 39 

Arnett v. Kennedy, 416 U.S. 134 (1974) ..................................................................................... 20 

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................................... 63

Baker v. General Motors Corp., 522 U.S. 222 (1998) ................................................................ 17 

Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900) ....................................................... 17 

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839) ............................................................ 17 

Banks v. Dretke, 124 S. Ct. 1256 (2004)..................................................................................... 52 

Barclays Bank v. Franchise Tax Bd., 512 U.S. 298 (1994) ......................................................... 2 

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003)............................................................... 62 

Bigelow v. Virginia, 421 U.S. 809 (1975).................................................................................... 21 

Blakely v. Washington, 124 S. Ct. 2531 (2004).............................................................. 38, 39, 61 

Bloomer v. McQuewan, 55 U.S. (14 How.) 539 (1852)................................................................. 4 

Bloomer v. Millinger, 68 U.S. (1 Wall.) 340 (1864)...................................................................... 4 

Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987)........................................... 21 

Board of Trustees v. Fox, 492 U.S. 469 (1989)........................................................................... 21 

Board of Trustees v. Garrett, 531 U.S. 356 (2001) .............................................................. 57, 58 

Bonaparte v. Tax Court, 104 U.S. 592 (1882) ............................................................................ 17 

Bond v. Hume, 243 U.S. 15 (1917) .............................................................................................. 17

Bousley v. United States, 523 U.S. 614 (1998)........................................................................... 43 

Bowers v. Hardwick, 478 U.S. 186 (1986) ...................................................................... 47–50, 63 

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973).................................... 10, 15 

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932)................................................................... 17 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ............................................................................. 20 

Brown v. Legal Found. of Washington, 538 U.S. 216 (2003) .................................................... 36 

Buckley v. Valeo, 424 U.S. 1 (1976) ...................................................................................... 21–23 

Bunkley v. Florida, 538 U.S. 835 (2003)..................................................................................... 53 

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).................................................................................... 6

California v. Deep Sea Research, Inc., 523 U.S. 491 (1998)...................................................... 45 

Carey v. Population Services International, 431 U.S. 678 (1977) ...................................... 48, 50 

Carroll v. Lanza, 349 U.S. 408 (1955)......................................................................................... 18

Chavez v. Martinez, 538 U.S. 760 (2003) ............................................................................. 33, 47 

Cheney v. United States District Court, 124 S. Ct. 2576 (2004) .............................................. 14 

Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887) ............................................ 17 

Chinese Exclusion Case, 130 U.S. 581 (1889) ............................................................................ 11 

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ........................... 19 

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) .................................................................... 2 

City of Boerne v. Flores, 521 U.S. 507 (1997) ............................................................................ 58 

City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 (2003)............... 54 

City of Houston v. Hill, 482 U.S. 451 (1987) .............................................................................. 21 

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).................................................................. 32 

City of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S. Ct. 2219 (2004) ............................................ 20 

City of Los Angeles v. David, 538 U.S. 715 (2003) .................................................................... 51 

Clark v. Allen, 331 U.S. 503 (1947)............................................................................................. 12 

66 TABLE OF CASES 

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) ..................................... 22 

Clemons v. Mississippi, 494 U.S. 738 (1990).............................................................................. 38 

Clinton v. Jones, 520 U.S. 681 (1997)......................................................................................... 14

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003)........................................ 51 

Craig v. Boren, 429 U.S. 190 (1976)............................................................................................ 57

Crawford v. Washington, 124 S. Ct. 1354 (2004)................................................................. 40, 63 

Crosby v. National Foreign Trade Council, 530 U.S. 363 (1999).............................................. 13 

Dames & Moore v. Regan, 453 U.S. 654 (1981) ......................................................................... 11 

Demore v. Kim, 538 U.S. 510 (2003)..................................................................................... 34, 35 

Dobbert v. Florida, 432 U.S. 282 (1977) ....................................................................................... 7

Doran v. Salem Inn, 422 U.S. 922 (1975) ................................................................................... 21 

Duro v. Reina, 495 U.S. 676 (1990)............................................................................................... 3 

Edenfield v. Fane, 507 U.S. 761 (1993)....................................................................................... 22

Eldred v. Ashcroft, 537 U.S. 186 (2003)........................................................................................ 4

Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301 (2004) ............................................ 19 

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)............................................................. 21 

Eunson v. Dodge, 85 U.S. (18 Wall.) 414 (1873) .......................................................................... 4 

Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815)................................................................................. 4 

Ewing v. California, 538 U.S. 11 (2003) ............................................................................... 43, 44 

Faretta v. California, 422 U.S. 806 (1975).................................................................................. 58 

FEC v. Beaumont, 539 U.S. 146 (2003) ...................................................................................... 23 

Fellers v. United States, 124 S. Ct. 1019 (2004)........................................................................ 41 

Fiore v. White, 528 U.S. 23 (1999) .............................................................................................. 53 

Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003)............................................. 54 

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945) .......................... 63 

Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003).................................................... 17, 18 

Frey v. Hawkins, 124 S. Ct. 899 (2004) ...................................................................................... 45 

Frisby v. Schultz, 487 U.S. 474 (1988)........................................................................................ 21

Glenn v. Garth, 147 U.S. 360 (1893)........................................................................................... 17

Graham v. John Deere Co., 383 U.S. 1 (1966) ............................................................................. 4 

Gratz v. Bollinger, 539 U.S. 244 (2003)................................................................................ 55, 56 

Griswold v. Connecticut, 381 U.S. 479 (1965) ............................................................................ 50 

Groh v. Ramirez, 124 S. Ct. 1284 (2004) .................................................................................... 31 

Grutter v. Bollinger, 539 U.S. 306 (2003)................................................................................... 55 

Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) ........................................................................... 9, 35 

Harmelin v. Michigan, 501 U.S. 957 (1991) ......................................................................... 43, 44 

Harris v. United States, 536 U.S. 545 (2002)............................................................................. 38 

Harrison v. United States, 392 U.S. 219 (1968)......................................................................... 34 

Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451 (2004).......................................................... 32 

Hildwin v. Florida, 490 U.S. 638 (1989) ..................................................................................... 38 

Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003)................................................................... 2, 18 

Hines v. Davidowitz, 312 U.S. 52 (1941) .................................................................................... 11 

Holden v. Minnesota, 137 U.S. 483 (1890) ................................................................................... 7 

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840)...................................................................... 11 

Idaho v. Wright, 497 U.S. 805 (1990).......................................................................................... 39

Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003) .................................. 29 

Illinois v. Fisher, 124 S. Ct. 1200 (2004) .................................................................................... 52

INS v. St. Cyr, 533 U.S. 289 (2001) ............................................................................................ 15

Iowa v. Tovar, 124 S. Ct. 1379 (2004)......................................................................................... 40

Jinks v. Richland County, 538 U.S. 456 (2003)............................................................................ 5 

Johnson v. Eisentrager, 339 U.S. 763 (1950) ............................................................................. 10 

Johnson v. New York Life Ins. Co., 187 U.S. 491 (1903) .......................................................... 17 

Kaupp v. Texas, 538 U.S. 626 (2003).......................................................................................... 31

TABLE OF CASES 67

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000)............................................................. 57 

Kryger v. Wilson, 242 U.S. 171 (1916)........................................................................................ 17

Lapides v. Board of Regents, 535 U.S. 613 (2002)..................................................................... 63 

Lawrence v. Texas, 539 U.S. 558 (2003) ............................................................ 47, 49–51, 61, 63 

Lee v. Illinois, 476 U.S. 530 (1986) ............................................................................................. 39 

Lindsey v. Washington, 301 U.S. 397 (1937)................................................................................ 7 

llinois v. Lidster, 124 S. Ct. 885 (2004) ...................................................................................... 32

Lloyd v. Matthews, 155 U.S. 222 (1894)..................................................................................... 17 

Locke v. Davy, 124 S. Ct. 1307 (2004) ........................................................................................ 19

Lockyer v. Andrade, 538 U.S. 63 (2003) ..................................................................................... 44 

Maryland v. Pringle, 124 S. Ct. 795 (2003).......................................................................... 31, 32 

McConnell v. Federal Election Commission, 540 U.S. 93 (2003) ................................. 23, 24, 59 

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) .............................................................. 5 

McDaniel v. Paty, 435 U.S. 618 (1978) ....................................................................................... 19 

McMillan v. Pennsylvania, 477 U.S. 79 (1986) .................................................................... 37, 38 

Medley, Petitioner, 134 U.S. 160 (1890) ....................................................................................... 7

Michigan v. Tucker, 417 U.S. 433 (1974).................................................................................... 34 

Middleton v. McNeil,124 S. Ct. 1830 (2004)............................................................................... 52 

Miranda v. Arizona, 384 U.S. 436 (1966) ................................................................................... 34 

Missouri v. Seibert, 124 S. Ct. 2601 (2004) ................................................................................ 34 

Mt. Healthy City Bd. of Educ. v. Doyle, U.S. 274 (1977) .......................................................... 58 

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)............................................ 20 

National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999)................................. 13 

National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904) ................................................... 17 

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003)........................................... 57 

Nevada v. Hall, 440 U.S. 410 (1979)........................................................................................... 18

New York v. Belton, 453 U.S. 454 (1981) ................................................................................... 32 

New York v. Ferber, 458 U.S. 747 (1982)................................................................................... 21 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)........................................... 22 

Ohio v. Roberts, 448 U.S. 56 (1980)................................................................................ 39, 40, 63 

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)......................................................... 3 

Oregon v. Elstad, 470 U.S. 298 (1985)........................................................................................ 34

Overton v. Bazzetta, 539 U.S. 126 (2003) ................................................................ 24, 44, 53, 54 

Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939) ................... 18 

Parke v. Raley, 506 U.S. 20 (1992).............................................................................................. 37 

Parker v. Levy, 417 U.S. 733 (1974) ........................................................................................... 21

Paul v. Davis, 424 U.S. 693 (1976) ....................................................................................... 49, 51

Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 93 (1917)................................ 17 

Penry v. Lynaugh, 492 U.S. 302 (1989)................................................................................ 43, 63 

Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003)....................... 2 

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).............................................................. 18 

Pierce County v. Guillen, 537 U.S. 129 (2003)............................................................................. 2 

Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp.2d 702 (D. Del. 1998) ...................... 22 

Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000)....................................... 29 

Rasul v. Bush, 124 S. Ct. 2686 (2004) .................................................................................. 10, 15 

Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) ..................................... 54, 56 

Reno v. ACLU, 521 U.S. 844 (1997) ......................................................................... 20, 21, 28, 29 

Ring v. Arizona, 536 U.S. 584 (2002).............................................................................. 38, 43, 63 

Roe v. Wade, 410 U.S. 113 (1973)................................................................................... 48, 50, 51 

Rumsfeld v. Padilla, 124 S. Ct. 2711 (2004)......................................................................... 10, 15 

Sable Communications of California v. FCC, 492 U.S. 115 (1989)........................................... 21 

Sabri v. United States, 124 S. Ct. 1941 (2004) ........................................................................ 1, 5 

Saffle v. Parks, 494 U.S. 484 (1990)............................................................................................ 43 

68 TABLE OF CASES 

San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973) ........................................................ 50 

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ....................................................................... 33 

Schriro v. Summerlin, 124 S. Ct. 2519 (2004)...................................................................... 16, 43 

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)........................................................................ 17 

Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) ..................... 21 

Sell v. United States, 539 U.S. 166 (2003) ................................................................................. 53 

Sherbert v. Verner, 374 U.S. 398 (1963)..................................................................................... 19 

Smith v. Doe, 538 U.S. 84 (2003) .............................................................................................. 5, 6 

Smithsonian Institution v. St. John, 214 U.S. 19 (1909)........................................................... 17 

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............................................................................ 39 

Solem v. Helm, 463 U.S. 277 (1983)............................................................................................ 44

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984)..................................... 4 

South Carolina v. Katzenbach, 383 U.S. 301 (1966).................................................................. 58 

Spaziano v. Florida, 468 U.S. 447 (1984).................................................................................... 38 

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ...................................................................... 3 

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) .......................................... 52 

Stogner v. California, 539 U.S. 607 (2003)............................................................................. 7, 61 

Strickler v. Greene, 527 U.S. 263 (1999) .................................................................................... 52 

Teague v. Lane, 489 U.S. (1989).................................................................................................. 43 

Tennard v. Dretke, 124 S. Ct. 2562 (2004)................................................................................. 43 

Tennessee Student Assistance Corp. v. Hood, 124 S. Ct. 1905 (2004) ..................................... 45 

Tennessee v. Lane, 124 S. Ct. 1978 (2004)................................................................................. 58 

Terry v. Ohio, 392 U.S. 1 (1968) ........................................................................................... 31, 32

Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911)....................................................................... 17 

Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002)................................. 21 

Thornton v. United States, 124 S. Ct. 2127 (2004).................................................................... 32 

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)....................................................... 22 

United States v. American Library Association, Inc., 539 U.S. 194 (2003) ....................... 24–28 

United States v. Banks, 124 S. Ct. 521 (2003)........................................................................... 31 

United States v. Belmont, 301 U.S. 324 (1937).......................................................................... 11 

United States v. Booker, 375 F.3d 508 (7th Cir. 2004) ............................................................. 39 

United States v. Di Re, 332 U.S. 581 (1948) .............................................................................. 31 

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).................................................. 22 

United States v. Fanfan, 2004 WL 1723113 (D. Me. 2004)....................................................... 39 

United States v. Flores-Montano, 124 S. Ct. 1582 (2004) ......................................................... 32 

United States v. Inadi, 475 U.S. 387 (1986)............................................................................... 39 

United States v. Lara, 124 S. Ct. 1628 (2004) ....................................................................... 3, 33 

United States v. Lopez, 514 U.S. 549 (1995)................................................................................ 2 

United States v. Nixon, 418 U.S. 683 (1974).............................................................................. 14 

United States v. One Bag of Paradise Feathers, 256 F. 301 (2d Cir. 1919) ............................ 10 

United States v. Patane, 124 S. Ct. 2601 (2004)........................................................................ 34 

United States v. Pink, 315 U.S. 203 (1942).......................................................................... 11, 12 

United States v. Virginia, 518 U.S. 515 (1996).......................................................................... 57 

Vieth v. Jubelirer, 124 S. Ct. 1769 (2004)...................................................................... 16, 56, 57 

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980) ............... 21 

Virginia v. Black, 538 U.S. 343 (2003).................................................................................. 26, 61 

Virginia v. Hicks, 539 U.S. 113 (2003)........................................................................................ 20

Walton v. Arizona, 497 U.S. 639 (1990)................................................................................ 38, 63 

Ward v. Rock Against Racism, 491 U.S. 781 (1989) .................................................................. 21 

Washington v. Harper, 494 U.S. 210 (1990)............................................................................... 53 

Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914) ....................................................... 17 

White v. Illinois, 502 U.S. 346 (1992) ......................................................................................... 39

Wiggins v. Smith, 539 U.S. 510 (2003) ....................................................................................... 41 

TABLE OF CASES 69

Woodford v. Visciotti, 537 U.S. 19 (2003) ................................................................................... 41 

Yarborough v. Alvarado, 124 S. Ct. 2140 (2004)........................................................................ 33 

Yarborough v. Gentry, 124 S. Ct. 1 (2003) ................................................................................. 41 

Ybarra v. Illinois, 444 U.S. 85 (1979).......................................................................................... 31 

Zablocki v. Redhail, 434 U.S. 374 (1978).................................................................................... 50 

Zadvydas v. Davis, 533 U.S. 678 (2001)...................................................................................... 34 

Zschernig v. Miller, 389 U.S. 429 (1968) .............................................................................. 12–14 

70

INDEX

Page

Affirmative action 

college admissions ........................................................................................................... 54, 56 

Aliens

deportation, due process protections.................................................................................... 35 

Bipartisan Campaign Reform Act of 2002 

constitutionality..................................................................................................................... 23 

Bribery

of state and local officials, Congress’ power to prohibit ....................................................... 1 

Campaign finance regulation 

First Amendment validity .............................................................................................. 23, 24 

Capital punishment 

habeas corpus limits on challenges...................................................................................... 43 

Children’s Internet Protection Act 

constitutionality............................................................................................................... 24, 26 

Commerce

foreign commerce, preemption of state regulation................................................................ 2 

scope of Congress’ power to regulate ..................................................................................... 1 

with Indian tribes.................................................................................................................... 3 

Confrontation Clause 

testimonial evidence, opportunity to cross-examine ........................................................... 40 

Congress

commerce power....................................................................................................................... 1 

Fourteenth Amendment enforcement powers ............................................................... 57, 58 

spending power ........................................................................................................................ 1 

Consent decrees 

state’s sovereign immunity claim......................................................................................... 45 

Copyright

Copyright Term Extension Act, constitutionality ................................................................. 4 

Counsel, assistance of 

waiver of right ....................................................................................................................... 40 

Cross burning 

prohibition, constitutionality ................................................................................................ 26

Cruel and unusual punishment 

proportionality, three-strikes law......................................................................................... 43 

Double jeopardy 

dual sovereign rule, tribal and Federal prosecutions ......................................................... 33 

Due process, procedural 

delay in processing fines ....................................................................................................... 51 

enemy combatants, right to hearing on status ................................................................... 35 

sex offenders, Internet posting ............................................................................................. 51 

Due process, substantive 

compelled medication ............................................................................................................ 53 

liberty, autonomy interests, sexual privacy .................................................................. 48–51 

Education

college admissions, affirmative action ........................................................................... 54–56 

Enemy combatants 

detention, rights to hearing on status ............................................................................. 9, 35 

Equal Protection 

affirmative action, college admissions ................................................................................. 55 

INDEX 71

Ex post facto laws 

Megan’s law not ex post facto ................................................................................................. 5 

revival of action after limitations period has run................................................................. 6 

Executive agreements 

status as law of land ............................................................................................................. 10 

Executive privilege 

Vice-presidential task force .................................................................................................. 14

Family and Medical Leave Act 

constitutionality as applied to state employment ............................................................... 57 

Foreign relations 

preemptive scope of federal power ....................................................................................... 11 

Full faith and credit 

conflict of laws ....................................................................................................................... 18 

Gerrymandering

partisan, justiciability..................................................................................................... 16, 56 

Habeas corpus 

federal court jurisdiction, prisoners at Guantanamo Bay............................................ 10, 15 

jurisdiction, location of prisoner’s custodian ....................................................................... 15 

‘‘new rule’’ limitation ............................................................................................................. 43 

Highway checkpoints 

soliciting aid in crime solving............................................................................................... 32

Homosexual conduct 

prohibition, denial of due process......................................................................................... 47 

Internet usage 

in public libraries, constitutionality of restrictions ............................................................ 28 

Jury trial, right to 

capital sentencing, factual findings...................................................................................... 38 

enhanced sentencing, factual basis................................................................................ 37, 39 

Libraries

restrictions on Internet access, constitutionality................................................................ 28 

Megan’s Law 

constitutionality, Ex Post Facto Clause................................................................................. 5 

Native Americans 

tribal courts, ‘‘dual sovereignty,’’ double jeopardy .............................................................. 33 

tribal sovereignty..................................................................................................................... 3 

Necessary and Proper Clause 

legislation protecting spending power ................................................................................... 5 

Overruled decisions ...................................................................................................................... 63 

Pledge of Allegiance 

dismissal of challenge for lack of standing.......................................................................... 19 

Preemption

foreign relations, state laws impinging on federal powers........................................... 11–13 

state laws conflicting with executive agreements......................................................... 11, 13 

President

foreign relations powers, executive agreements ........................................................... 10, 11 

power to detain enemy combatants........................................................................................ 9 

Prisons

visitation rules................................................................................................................. 24, 44 

Privacy

sexual autonomy, homosexual conduct.......................................................................... 48, 50 

Punitive damages 

ratio to compensatory damages, due process ...................................................................... 52 

Religion

theology students, exclusion from scholarship.................................................................... 19 

72 INDEX

Search and seizure 

highway checkpoint ............................................................................................................... 32 

particularity requirement, warrants.................................................................................... 31 

Terry stop, identity request .................................................................................................. 32

Self-incrimination

Miranda warning, two-step questioning.............................................................................. 34 

Speech

campaign finance restrictions......................................................................................... 22, 23 

commercial speech................................................................................................................. 25 

cross burning prohibition...................................................................................................... 26

Internet restrictions, libraries and schools.................................................................... 25–27 

overbreadth doctrine ............................................................................................................. 20 

Spending power 

necessary and proper legislation ............................................................................................ 5 

prohibition on bribing state and local officials...................................................................... 1 

States

immunity from suit in federal courts................................................................................... 45 

Supremacy Clause 

executive agreements as preempting conflicting state laws .............................................. 10 

Taking of property 

just compensation.................................................................................................................. 36 

public use ............................................................................................................................... 36 

Three-strikes law 

not cruel and unusual punishment...................................................................................... 43 

Unconstitutional conditions 

not imposed by Children’s Internet Protection Act ...................................................... 25, 27 

Unconstitutional federal laws...................................................................................................... 59 

Unconstitutional state laws ......................................................................................................... 61