1

CONSTITUTION OF THE UNITED STATES

[P. 35, delete from penultimate line of fn.10:]

Connecticut, May 6, 1919;

[P. 35, add to end of fn.10:]

 Although some sources (including the main volume of this book) state that Connecticut ratified the 18th Amendment on May 6, 1919 (after the date that three-fourths of the

states had ratified it, and after the Acting Secretary of State, on January 28, 1919, had

certified that the 18th Amendment had become valid; see 40 Stat. 1941-42 (1919)), the

Journal of the Senate of the State of Connecticut, January Session, 1919, reports on May

6, 1919, at page 1191: “The committee of Conference, to whom was referred a resolution

[Senate Joint Resolution No. 56] ratifying an Amendment to the Constitution concerning

the Manufacture, Sale and Transportation of Intoxicating Liquors, reported that they had

the same under consideration and cannot agree . . . .” The New York Times (Feb. 5, 1919)

reported that, on Feb. 4, 1919, the Connecticut Senate voted against ratification by a vote

of 20 to 14. A week later (Feb. 12, 1919), the New York Times reported that, on Feb. 11,

1919, the Connecticut House of Representatives voted in favor of ratification by a vote of

153 to 96.

[P. 36, n.11, add, in the appropriate places, the following states

that ratified the 19th Amendment:]

Texas, June 28, 1919; Utah, October 2, 1919; Washington, March 22, 1920; Tennessee,

August 18, 1920.
See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed. 1

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

UNITED STATES § 889, at 335 (1833).

 Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why 2

Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly

Reasoned, 83 TEX. L. REV. 1265 (2005).

3

ARTICLE I

Section 2. House of Representatives

Clause 1. Congressional Districting

CONGRESSIONAL DISTRICTING

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

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

v. Perry, 548 U.S. 399 (2006). Additional discussion of this issue appears under Amendment 14, The New Equal Protection, Apportionment and Districting.

Section 7. Bills and Resolutions

Clause 3. Presentation of Resolutions

THE LEGISLATIVE PROCESS

Presentation of Resolutions

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

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

Clause (ORV Clause), is not readily apparent. For years it was

assumed that the Framers inserted the clause to prevent Congress from evading the veto clause by designating as something

other than a bill measures intended to take effect as laws. Why 1

a separate clause was needed for this purpose has not been

explained. Recent scholarship presents a different possible

explanation for the ORV Clause – that it was designed to authorize delegation of lawmaking power to a single House, subject to

presentment, veto, and possible two-House veto override. If 2

construed literally, the clause could have bogged down the

intermediate stages of the legislative process, and Congress

made practical adjustments. At the request of the Senate, the

Judiciary Committee in 1897 published a comprehensive report

detailing how the clause had been interpreted over the years.
4 ARTICLE I–LEGISLATIVE DEPARTMENT

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

REPRESENTATIVES § 3483 (1907).

 3 U.S. (3 Dall.) 378 (1798). 4

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

has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229 (1920) (in

Hollingsworth “this court settled that the submission of a constitutional amendment did

not require the action of the President”); INS v. Chadha, 462 U.S. 919, 955 n.21 (1983) (in

Hollingsworth the Court “held Presidential approval was unnecessary for a proposed

constitutional amendment”).

Briefly, it was shown that the word “necessary” in the clause had

come to refer to the necessity for law-making; that is, any “order,

resolution, or vote” must be submitted if it is to have the force of

law. But “votes” taken in either House preliminary to the final

passage of legislation need not be submitted to the other House

or to the President, nor must concurrent resolutions merely

expressing the views or “sense” of the Congress.3

Although the ORV Clause excepts only adjournment resolutions and makes no explicit reference to resolutions proposing

constitutional amendments, the practice and understanding,

beginning with the Bill of Rights, have been that resolutions

proposing constitutional amendments need not be presented to

the President for veto or approval. Hollingsworth v. Virginia, in 4

which the Court rejected a challenge to the validity of the Eleventh Amendment based on the assertion that it had not been

presented to the President, is usually cited for the proposition

that presentation of constitutional amendment resolutions is not

required.5

Section 8. Powers of Congress

Clause 1. Power to Tax and Spend

SPENDING FOR THE GENERAL WELFARE

Scope of the Power

[P. 164, add to 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 under-
ARTICLE I–LEGISLATIVE DEPARTMENT 5

 Sabri v. United States, 541 U.S. 600, 605 (2004). 6

 541 U.S. at 606. 7

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

mined when funds are siphoned off or corrupt public officers are

derelict about demanding value for dollars.” Congress’ failure to 6

require proof of a direct connection between the bribery and the

federal funds was permissible, the Court concluded, because

“corruption does not have to be that limited to affect the federal

interest. Money is fungible, bribed officials are untrustworthy

stewards of federal funds, and corrupt contractors do not deliver

dollar-for-dollar value.”7

– Conditional Grants-in-Aid

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

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

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

penalize graft and corruption that may impede its purposes in spending programs. Sabri

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

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

Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) (because

Individuals with Disabilities Education Act, which was enacted pursuant to the Spending

Clause, does not furnish clear notice to states that prevailing parents may recover fees

for services rendered by experts in IDEA actions, it does not authorize recovery of such

fees).

Clause 3. Commerce Power

POWER TO REGULATE COMMERCE

Definition of Terms

– Necessary and Proper Clause

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

Gonzales v. Raich, 545 U.S. 1 (2005).

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

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

the dictates of Chief Justice Marshall have been used to justify

more expansive applications of the commerce power.8
6 ARTICLE I–LEGISLATIVE DEPARTMENT

 United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted). Illustra- 9

tive 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 informationgathering requirement . . . would result in more diligent efforts [by states] to collect the

relevant information.”

 545 U.S. 1 (2005). 10

The Commerce Clause as a Source of National Police Power

– Is There an Intrastate Barrier to Congress’ Commerce Power.

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

Congress’ commerce power has been characterized as having

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

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

“three broad categories of activity that Congress may regulate

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

of the channels of interstate commerce. Second, Congress is

empowered to regulate and protect the instrumentalities of

interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities.

Finally, Congress’ commerce authority includes the power to

regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect

interstate commerce.”9

[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).

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

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

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

reaffirmed an expansive application of Wickard v. Filburn, and

signaled that its jurisprudence is unlikely to threaten the enforcement of broad regulatory schemes based on the Commerce

Clause. In Raich, the Court considered whether the cultivation,

distribution, or possession of marijuana for personal medical

purposes pursuant to the California Compassionate Use Act of

1996 could be prosecuted under the federal Controlled Substances
ARTICLE I–LEGISLATIVE DEPARTMENT 7

 84 Stat. 1242, 21 U.S.C. §§ 801 et seq. 11

 545 U.S. at 19. 12

 545 U.S. at 25, quoting Webster’s Third New International Dictionary 720 (1966). 13

 545 U.S. at 18, 22. 14

 545 U.S. at 23-25. 15

 545 U.S. at 34-35 (Scalia, J., concurring). 16

Act (CSA). The respondents argued that this class of activities 11

should be considered as separate and distinct from the

drug-trafficking that was the focus of the CSA, and that regulation of this limited non-commercial use of marijuana should be

evaluated separately.

In Raich, the Court declined the invitation to apply Lopez

and Morrison to select applications of a statute, holding that the

Court would defer to Congress if there was a rational basis to

believe that regulation of home-consumed marijuana would affect

the market for marijuana generally. The Court found that there

was a rational basis to believe that diversion of medicinal marijuana into the illegal market would depress the price on the latter

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

application to medicinal marijuana, the CSA was an economic

regulation. Noting that the definition of “economics” includes

“the production, distribution, and consumption of commodities,”13

the Court found that prohibiting the intrastate possession or

manufacture of an article of commerce is a rational and commonly used means of regulating commerce in that product.

The Court’s decision also contained an intertwined but

potentially separate argument that Congress had ample authority under the Necessary and Proper Clause to regulate the

intrastate manufacture and possession of controlled substances,

because failure to regulate these activities would undercut the

ability of the government to enforce the CSA generally. The 14

Court quoted language from Lopez that appears to authorize the

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

suggests that this latter category of activities could be regulated

under the Necessary and Proper Clause regardless of whether the

activity in question was economic or whether it substantially

affected interstate commerce.16
8 ARTICLE I–LEGISLATIVE DEPARTMENT

The Court had developed the “original package” doctrine to restrict application of 17

a state tax on imports from a foreign country in Brown v. Maryland, 25 U.S. (12 Wheat.)

419, 449 (1827). Although Chief Justice Marshall had indicated in dictum in Brown that

the same rule would apply to imports from sister states, the Court had refused to follow

that dictum in Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869).

 Mugler v. Kansas, 123 U.S. 623 (1887). Relying on the distinction between 1 8

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

prohibit manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128 U.S. 1

(1888).

 125 U.S. 465 (1888). 19

 Leisy v. Hardin, 135 U.S. 100 (1890). 20

 Ch. 728, 26 Stat. 313 (1890), upheld in In re Rahrer, 140 U.S. 545 (1891). 21

 Rhodes v. Iowa, 170 U.S. 412 (1898). 22

 Ch. 90, 37 Stat. 699 (1913), sustained in Clark Distilling Co. v. Western Md. Ry., 23

242 U.S. 311 (1917). See also Department of Revenue v. Beam Distillers, 377 U.S. 341

(1964).

 THE COMMERCE CLAUSE AS A RESTRAINT ON STATE

POWERS

Doctrinal Background

– Congressional Authorization of Impermissible State Action

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

The Court applied the “original package” doctrine to interstate commerce in intoxicants, which the Court denominated

“legitimate articles of commerce.” Although holding that a state 17

was entitled to prohibit the manufacture and sale of intoxicants

within its boundaries, it contemporaneously laid down the rule, 18

in Bowman v. Chicago & Northwestern Ry. Co., that, so long as 19

Congress remained silent in the matter, a state lacked the power,

even as part and parcel of a program of statewide prohibition of

the traffic in intoxicants, to prevent the importation of liquor

from a sister state. This holding was soon followed by another to

the effect that, so long as Congress remained silent, a state had

no power to prevent the sale in the original package of liquors

introduced from another state. Congress soon attempted to 20

overcome the effect of the latter decision by enacting the Wilson

Act, which empowered states to regulate imported liquor on the 21

same terms as domestically produced liquor, but the Court

interpreted the law narrowly as subjecting imported liquor to

local authority only after its resale. Congress did not fully 22

nullify the Bowman case until 1913, when it enacted the

Webb-Kenyon Act, which clearly authorized states to regulate 23

direct shipments for personal use.
ARTICLE I–LEGISLATIVE DEPARTMENT 9

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

Dias, 468 U.S. 263 (1984); Brown-Forman Distillers Corp. v. New York State Liquor

Auth., 476 U.S. 573 (1986); Healy v. The Beer Institute, 491 U.S. 324 (1989), and the

analysis of section 2 under Discrimination Between Domestic and Imported Products.

 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505 (2008) 25

(citations and internal quotation marks omitted).

National Prohibition, imposed by the Eighteenth Amendment, temporarily mooted these conflicts, but they reemerged

with repeal of Prohibition by the Twenty-first Amendment.

Section 2 of the Twenty-first Amendment prohibits “the importation into any State . . . for delivery or use therein of intoxicating

liquors, in violation of the laws thereof.” Initially the Court

interpreted this language to authorize states to discriminate

against imported liquor in favor of that produced in-state, but the

modern Court has rejected this interpretation, holding instead

that “state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.”24

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

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

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

State Taxation and Regulation: The Modern Law

– Taxation

[Pp. 241, add to text after n.1012:]

The broad inquiry subsumed in both constitutional requirements

is whether the taxing power exerted by the state bears fiscal

relation to protection, opportunities and benefits given by the

state – that is, whether the state has given anything for which it

can ask return.”25

[Pp. 242, add to n.1019:]

See also Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1508 (2008)

(the concept of “operational function,” which the Court had introduced in prior cases, was

“not intended to modify the unitary business principle by adding a new ground for

apportionment”).

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

But see American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545 U.S. 429 (2005),

upholding imposition of a flat annual fee on all trucks engaged in intrastate hauling

(including trucks engaged in interstate hauling that “top off” loads with intrastate pickups

and deliveries) and concluding that levying the fee on a per-truck rather than per-mile

basis was permissible in view of the objectives of defraying costs of administering various

size, weight, safety, and insurance requirements.
10 ARTICLE I–LEGISLATIVE DEPARTMENT

 127 S. Ct. 1786 (2007). 26

 127 S. Ct. at 1790. The Commerce Clause test referred to is the test set forth in 27

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). “Under the Pike test, we will uphold a

nondiscriminatory statute . . . ‘unless the burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits.’” Id. at 1797 (quoting Pike, 397

U.S. at 142). The fact that a state is seeking to protect itself from economic or other

difficulties, is not, by itself, sufficient to justify barriers to interstate commerce. Edwards

v. California, 314 U.S. 160 (1941) (striking down California effort to bar “Okies” – persons

fleeing the Great Plains dust bowl during the Depression). Cf. Crandall v. Nevada, 73

U.S. (6 Wall.) 35 (1867) (without tying it to any particular provision of Constitution,

Court finds a protected right of interstate movement). The right of travel is now an

aspect of equal protection jurisprudence.

 128 S. Ct. 1801 (2008). 28

– 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 out-of-state

companies).

[P. 250, substitute for the sentence in the text that accompanies

n.1056 and delete n.1056:]

In United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid

Waste Management Authority, the Court declined to apply 26

Carbone where haulers were required to bring waste to facilities

owned and operated by a state-created public benefit corporation

instead of to a private processing facility, as was the case in

Carbone. The Court found this difference constitutionally significant because “[d]isposing of trash has been a traditional government activity for years, and laws that favor the government in

such areas – but treat every private business, whether in-state

or out-of-state, exactly the same – do not discriminate against

interstate commerce for purposes of the Commerce Clause.

Applying the Commerce Clause test reserved for regulations that

do not discriminate against interstate commerce, we uphold these

ordinances because any incidental burden they may have on

interstate commerce does not outweigh the benefits they

confer . . . .”27

In Department of Revenue of Kentucky v. Davis, the Court 28

considered a challenge to the long-standing state practice of

issuing bonds for public purposes while exempting interest on the
ARTICLE I–LEGISLATIVE DEPARTMENT 11

 This exemption from state taxes is also generally made available to bonds issued 29

by local governmental entities within a state.

 Reliance could not be placed on Executive statements, the Court explained, 3 0

because “the Constitution expressly grants Congress, not the President, the power to

‘regulate Commerce with foreign Nations.’” 512 U.S. at 329. “Executive Branch

communications that express federal policy but lack the force of law cannot render

unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide

combined reporting.” Id. at 330. Dissenting Justice Scalia noted that, although the

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

to be exercised by silence.” Id. at 332.

The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139-49 31

(1993).

bonds from state taxation. In Davis, a challenge was brought 29

against Kentucky for such a tax exemption because it applied

only to government bonds that Kentucky issued, and not to

government bonds issued by other states. The Court, however,

recognizing the long pedigree of such taxation schemes, applied

the logic of United Haulers Ass'n, Inc., noting that the issuance of

debt securities to pay for public projects is a "quintessentially

public function," and that Kentucky's differential tax scheme

should not be treated like one that discriminated between privately issued bonds. In what may portend a significant change

in dormant commerce clause doctrine, however, the Court declined to evaluate the governmental benefits of Kentucky's tax

scheme versus the economic burdens it imposed, holding that, at

least in this instance, the "Judicial Branch is not institutionally

suited to draw reliable conclusions."

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. The 30

result of the case, perhaps intended, is that foreign corporations

have less protection under the negative commerce clause.31
12 ARTICLE I–LEGISLATIVE DEPARTMENT

 Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 32

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption

– The Standards Applied

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

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

health care liability act for failure to exercise ordinary care when denying benefits is

preempted).

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

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

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

law tort action).

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

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

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

FIFRA, the federal law governing pesticides).

COMMERCE WITH INDIAN TRIBES

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

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

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

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

absent authority from federal statute or treaty, tribes possess no criminal authority over

non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The Court also

held, in Duro v. Reina, 495 U.S. 676 (1990), that a tribe has no criminal jurisdiction over

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

on consent of the self-governed, and absence of consent defeats jurisdiction. Congress,

however, quickly enacted a statute recognizing inherent authority of tribal governments

to exercise criminal jurisdiction over non-member Indians, and the Court upheld

congressional authority to do so in United States v. Lara, 541 U.S. 193 (2004).

Clause 8. Copyrights and Patents

Scope of the Power

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

These English statutes curtailed the royal prerogative in the

creation and bestowal of monopolistic privileges, and the Copyright and Patent Clause similarly curtails congressional power

with regard both to subject matter and to the purpose and

duration of the rights granted.32
ARTICLE I–LEGISLATIVE DEPARTMENT 13

 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America v. 33

Universal City Studios, 464 U.S. 417, 429 (1984)).

 537 U.S. at 204. 34

 The Court in Eldred upheld extension of the term of existing copyrights from life 35

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

issue was not raised, the Court opined that this length of time, extendable by Congress,

was “clearly” not a regime of “perpetual” copyrights. The only two dissenting Justices,

Stevens and Breyer, challenged this assertion.

Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S. (14 36

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).

 33 U.S. (8 Pet.) 591 (1834). 37

[P. 313, convert final sentence of paragraph to a separate paragraph and place it after the following new paragraph to be added

at end of section:]

The constitutional limits, however, do not prevent the Court

from being highly deferential to congressional exercise of its

power. “It is Congress that has been assigned the task of defining

the scope of the limited monopoly that should be granted to

authors,” the Court has said. “Satisfied” in Eldred v. Ashcroft 33

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.” The 34

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. Congress may extend the duration of existing copy- 35

rights and patents, and in so doing may protect the rights of

purchasers and assignees.36

Nature and Scope of the Right Secured

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

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

authorized to “secure” under the Copyright and Patent Clause is

Wheaton v. Peters. Wheaton was the official reporter for the 37

Supreme Court from 1816 to 1827, and Peters was his successor

in that role. Wheaton charged Peters with having infringed his

copyright in the twelve volumes of “Wheaton’s Reports” by

reprinting material from Wheaton’s first volume in “a volume
14 ARTICLE I–LEGISLATIVE DEPARTMENT

 33 U.S. (8 Pet.) at 595. 38

 33 U.S. (8 Pet.) at 667. 39

 33 U.S. (8 Pet.) at 657-58. The Court noted that the same principle applies to “an 40

individual who has invented a most useful and valuable machine. . . . [I]t has never been

pretended that the latter could hold, by the common law, any property in his invention,

after he shall have sold it publicly.” Id.

 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 U.S. 82 (1899). The doctrine of 41

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

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

and unpublished works, substituting a single federal system for that existing since the

first copyright law in 1790. 17 U.S.C. § 301.

 33 U.S. (8 Pet.) at 661. 42

 33 U.S. (8 Pet.) at 662; Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815). A major 43

limitation of copyright law is that “fair use” of a copyrighted work is not an infringement.

Fair use can involve such things as quotation for the use of criticism and reproduction for

classroom purposes, but it may not supersede the use of the original work. See Harper &

Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an unauthorized 300- to

400-word excerpt, published as a news “scoop” of the authorized prepublication excerpt of

former President Ford’s memoirs and substantially affecting the potential market for the

authorized version, was not a fair use within the meaning of § 107 of the Copyright Act,

17 U.S.C. § 107). For fair use in the context of a song parody, see Campbell v. Acuff-Rose

Music, Inc., 510 U.S. 569 (1994).

called ‘Condensed Reports of Cases in the Supreme Court of the

United States’”; Wheaton based his claim on both common law 38

and a 1790 act of Congress. On the statutory claim, the Court

remanded to the trial court for a determination of whether

Wheaton had complied with all the requirements of the act. On 39

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

under common law, publication divests an author of copyright

protection. Wheaton argued that the Constitution should be 40

held to protect his common law copyright, because “the word

secure . . . clearly indicates an intention, not to originate a right,

but to protect one already in existence.” The Court found, 41

however, that “the word secure, as used in the constitution, could

not mean the protection of an acknowledged legal right,” but was

used “in reference to a future right.” Thus, the exclusive right 42

that the Constitution authorizes Congress to “secure” to authors

and inventors owes its existence solely to acts of Congress that

secure it, from which it follows that the rights granted by a

patent or copyright are subject to such qualifications and limitations as Congress sees fit to impose.43

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

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

encouragement of infringement by distribution of software for sharing of copyrighted

music and video files can constitute infringement).
ARTICLE I–LEGISLATIVE DEPARTMENT 15

 Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006). But see, id. at 591 (“Exigency 4 4

alone, of course, will not justify the establishment and use of penal tribunals not

contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless some other

part of that document authorizes a response to the felt need.”).

 17 U.S. (4 Wheat.) 316 (1819). 45

 Jinks v. Richland County, 538 U.S. 456 (2003). 46

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

CONSTITUTIONAL RIGHTS IN WARTIME

The Constitution at Home in Wartime

– Enemy Aliens

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

Because this use of military tribunals was sanctioned by Congress, the Court found it unnecessary to decide whether “the

President may constitutionally convene military commissions

‘without the sanction of Congress’ in cases of ‘controlling necessity.’”44

Clause 18. Necessary and Proper Clause

Scope of Incidental Powers

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

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

the powers expressly granted to Congress. Chief Justice Marshall’s classic opinion in McCulloch v. Maryland set the stan- 45

dard 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, 541

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

officials administering programs receiving federal funds).

Courts and Judicial Proceedings

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

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

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

pending in federal court,46
16 ARTICLE I–LEGISLATIVE DEPARTMENT

 538 U.S. 84 (2003). 47

 538 U.S. at 92. 48

 The law's requirements do not closely resemble punishments of public disgrace 49

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.

 538 U.S. at 102. 50

Section 10 – Powers Denied to States

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

Impairing Contracts

Ex Post Facto Laws

– Scope of the Provision

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

Distinguishing between civil and penal laws was at the

heart of the Court’s decision in Smith v. Doe upholding applica- 47

tion of Alaska’s “Megan’s Law” to sex offenders who were convicted before the law’s enactment. The Alaska law requires

released sex offenders to register with local police and also

provides for public notification via the Internet. The Court

accords “considerable deference” to legislative intent; if the

legislature’s purpose was to enact a civil regulatory scheme, then

the law can be ex post facto only if there is “the clearest proof” of

punitive effect. Here, the Court determined, the legislative 48

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.” The Act does not subject the registrants to an “affirma- 49

tive 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. Nor is the act “excessive” in 50
ARTICLE I–LEGISLATIVE DEPARTMENT 17

 Excessiveness was alleged to stem both from the law’s duration (15 years of 5 1

notification by those convicted of less serious offenses; lifetime registration by serious

offenders) and in terms of the widespread (Internet) distribution of the information.

 538 U.S. at 105. Unlike involuntary civil commitment, where the “magnitude of 52

restraint [makes] individual assessment appropriate,” the state may make “reasonable

categorical judgments,” and need not provide individualized determinations of dangerousness. Id. at 103.

 3 U.S. (3 Dall.) 386, 389 (1798). 53

 539 U.S. 607, 632-33 (2003) (invalidating application of California’s law to revive 54

child abuse charges 22 years after the limitations period had run for the alleged crimes).

 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey 5 5

in Dobbert v. Florida, 432 U.S. 282, 298-301 (1977).

 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 56

relation to its regulatory purpose. Rather, “the means chosen 51

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.52

– Changes in Punishment

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

Justice Chase in Calder v. Bull gave an alternative description of the four categories of ex post facto laws, two of which

related to punishment. One such category was laws that inflict

punishment “where the party was not, by law, liable to any

punishment”; the other was laws that inflict greater punishment

than was authorized when the crime was committed.53

Illustrative of the first of these punishment categories is “a

law enacted after expiration of a previously applicable statute of

limitations period [as] applied to revive a previously time-barred

prosecution.” Such a law, the Court ruled in Stogner v. California, is prohibited as ex post facto. Courts that had upheld 54

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, that required solitary confine- 55

ment for prisoners previously sentenced to death, and that 56
18 ARTICLE I–LEGISLATIVE DEPARTMENT

In Re Medley, 134 U.S. 160, 171 (1890). 57

allowed a warden to fix, within limits of one week, and keep

secret the time of execution.57
19

ARTICLE II

Section 1. The President

Clause 1. Powers and Term of the President.

NATURE AND SCOPE OF PRESIDENTIAL POWER

Executive Power: Theory of the Presidential Office

– The Youngstown Case

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

And, in Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006), the Court cited Youngstown

with approval, as did Justice Kennedy, in a concurring opinion joined by three other

Justices, id. at 638.

Section 2. Powers and Duties of the President

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

Pardons

COMMANDER-IN-CHIEF

The Cold War and After: Presidential Power to Use Troops

Overseas Without Congressional Authorization

– The Power of Congress to Control the President’s Discretion

[P. 474, substitute for the beginning of the sentence in text (up to

“unless Congress”) that follows n.175:]

If the President introduces troops in the first of these three

situations, then he must terminate the use of troops within 60

days after his report was submitted or was required to be submitted to Congress,

[P. 475, add to text after n.181:]

By contrast, President George W. Bush sought a resolution

from Congress in 2002 to approve the eventual invasion of Iraq

before seeking a UN Security Council resolution, all the while

denying that express authorization from Congress, or for that

matter, the UN Security Council, was necessary to renew hostilities in Iraq. Prior to adjourning for its midterm elections, Congress passed the Authorization for Use of Military Force against
20 ARTICLE II–EXECUTIVE DEPARTMENT

 P.L. 107-243; 116 Stat. 1498 (2002). The House approved the resolution by a vote 1

of 296-133. The Senate passed the House version of H.J. Res. 114 by a vote of 77-23.

See President’s Statement on Signing H.J. Res. 114, Oct. 16, 2002, available at 2

[http://usinfo.state.gov/dhr/Archive/2003/Oct/09-906028.html].

Ex parte Quirin, 317 U.S. 1, 37-38 (1942) (“Citizens who associate themselves with 3

the military arm of the enemy government, and with its aid, guidance and direction enter

this country bent on hostile acts, are enemy belligerents within the meaning of the

Hague Convention and the law of war.”). See also Colepaugh v. Looney, 235 F.2d 429,

432 (10th Cir. 1956), cert. denied, 352 U.S. 1014 (1957) (“[T]he petitioner’s citizenship in

the United States does not . . . confer upon him any constitutional rights not accorded

any other belligerent under the laws of war.”)

Iraq Resolution of 2002, which it styled as “specific statutory 1

authorization within the meaning of section 5(b) of the War

Powers Resolution.” On signing the measure, the President noted

that he had sought “an additional resolution of support” from

Congress, and expressed appreciation for receiving that support,

but stated, “my request for it did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President’s constitutional authority to use force to deter, prevent, or respond to

aggression or other threats to U.S. interests or on the constitutionality of the War Powers Resolution.” In the Bush administra- 2

tion’s view, the primary benefit of receiving authorization from

Congress seems to have been the message of political unity it

conveyed to the rest of the world rather than the fulfillment of

any constitutional requirements.

Martial Law and Constitutional Limitations

– Articles of War: The Nazi Saboteurs

[P. 483, add to text at end of section:]

In any event, the Court rejected the jurisdictional challenge by

one of the saboteurs on the basis of his claim to U.S. citizenship,

finding U.S. citizenship wholly irrelevant to the determination of

whether a wartime captive is an “enemy belligerent” within the

meaning of the law of war.3

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

Crimes”:]

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

In response to the September 11, 2001 terrorist attacks on

New York City’s World Trade Center and the Pentagon in Washington, D.C., Congress passed the Authorization for Use of
ARTICLE II–EXECUTIVE DEPARTMENT 21

 Pub. L. 107-40, 115 Stat. 224 (2001). 4

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). There was no opinion of the Court. 5

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 Ginsburg,

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.

 At a minimum, the petitioner must be given notice of the asserted factual basis for 6

holding him, must be given a fair chance to rebut that evidence before a neutral decision

maker, and must be allowed to consult an attorney. 542 U.S. at 533, 539.

 542 U.S. 466 (2004). 7

Johnson v. Eisentrager, 339 U.S. 763, 789 (1950). 8

 The petitioners were Australians and Kuwaitis. 9

Military Force, which provided that the President may use “all 4

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

or aided the terrorist attacks [or] harbored such organizations or

persons.” During a military action in Afghanistan pursuant to

this authorization, a United States citizen, Yaser Hamdi, was

taken prisoner. The Executive Branch argued that it had plenary

authority under Article II to hold such an “enemy combatant” for

the duration of hostilities, and to deny him meaningful recourse

to the federal courts. In Hamdi v. Rumsfeld, the Court agreed

that the President was authorized to detain a United States

citizen seized in Afghanistan, although a majority of the Court

appeared to reject the notion that such power was inherent in the

Presidency, relying instead on statutory grounds. However, the 5

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.6

In Rasul v. Bush, the Court rejected an Executive Branch 7

argument that foreign prisoners being held at Guantanamo Bay,

Cuba were outside of federal court jurisdiction. The Court

distinguished earlier case law arising during World War II that

denied habeas corpus petitions from German citizens who had

been captured and tried overseas by United States military

tribunals. In Rasul, the Court noted that the Guantanamo 8

petitioners were not citizens of a country at war with the United

States, had not been afforded any form of tribunal, and were 9

being held in a territory over which the United States exercised
22 ARTICLE II–EXECUTIVE DEPARTMENT

 Rasul v. Bush, 542 U.S. at 467. 10

 The Court found that 28 U.S.C. § 2241, which had previously been construed to 11

require the presence of a petitioner in a district court’s jurisdiction, was now satisfied by

the presence of a jailor-custodian. See Braden v. 30th Judicial Circuit Court of Ky., 410

U.S. 484 (1973). Another “enemy combatant” case, this one involving an American citizen

arrested on American soil, was remanded after the Court found that a federal court’s

habeas jurisdiction under 28 U.S.C. § 2241 was limited to jurisdiction over the immediate

custodian of a petitioner. Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court’s

jurisdiction over Secretary of Defense Rumsfeld was not sufficient to satisfy the presence

requirement under 28 U.S.C. § 2241). In Munaf v. Geren, 128 S. Ct. 2207 (2008), the

Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to American citizens

held by the Multinational Force-Iraq, an international coalition force operating in Iraq

and composed of 26 different nations, including the United States. The Court concluded

that the habeas statute extends to American citizens held overseas by American forces

operating subject to an American chain of command, even when those forces are acting as

part of a multinational coalition.

 Detainee Treatment Act of 2005, P.L. 109-148, § 1005(e)(1) (providing that “no 12

court . . . shall have jurisdiction to hear or consider . . . an application for a writ of habeas

corpus filed by . . . an alien detained . . . at Guantanamo Bay”). After the Court decided,

in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that this language of the Detainee

Treatment Act did not apply to detainees whose cases were pending at the time of

enactment, the language was amended by the Military Commissions Act of 2006, P.L.

109-366, to also apply to pending cases where a detainee had been determined to be an

enemy combatant.

 128 S. Ct. 2229 (2008). 13

 U.S. Const. Art. I, § 9, cl. 2 provides: “The Privilege of the Writ of Habeas Corpus 14

shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety

may require it.” In Boumediene, the government argued only that the Suspension Clause

did not apply to the detainees; it did not argue that Congress had acted to suspend

habeas.

 “[G]iven the unique status of Guantanamo Bay and the particular dangers of 1 5

terrorism in the modern age, the common-law courts simply may not have confronted

cases with close parallels to this one. We decline, therefore, to infer too much, one way or

the other, from the lack of historical evidence on this point.” 128 S. Ct. at 2251.

 128 S. Ct. at 2258. “[Q]uestions of extraterritoriality turn on objective factors and 16

practical concerns, not formalism.” Id.

exclusive jurisdiction and control. In addition, the Court found 10

that statutory grounds existed for the extension of habeas corpus

to these prisoners.11

In response to Rasul, Congress amended the habeas statute

to eliminate all federal habeas jurisdiction over detainees,

whether its basis was statutory or constitutional. This amend- 12

ment was challenged in Boumediene v. Bush as a violation of 13

the Suspension Clause. Although the historical record did not 14

contain significant common-law applications of the writ to foreign

nationals who were apprehended and detained overseas, the

Court did not find this conclusive in evaluating whether habeas

applied in this case. Emphasizing a “functional” approach to 15

the issue, the Court considered (1) the citizenship and status of 16

the detainee and the adequacy of the process through which the
ARTICLE II–EXECUTIVE DEPARTMENT 23

 Sanchez-Llamas v. Oregon, 548 U.S. 331, 353-54 (2006), quoting Marbury v. 17

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

arrested in the United States, and, in violation of Article 36 of the Vienna Convention on

Consular Relations, their nations’ consuls were not notified that they had been detained

by authorities in a foreign country (the U.S.). The foreign nationals were convicted in

Oregon and Virginia state courts, respectively, and cited the violations of Article 36 in

challenging their convictions. The Court did not decide whether Article 36 grants rights

that may be invoked by individuals in a judicial proceeding (four justices would have held

that it did grant such rights). The reason that the Court did not decide whether Article

36 grants rights to defendants was that it held, by a 6-to-3 vote, that, even if Article 36

does grant rights, the defendants in the two cases before it were not entitled to relief on

their claims. It found, specifically, that “suppression of evidence is [not] a proper remedy

for a violation of Article 36,” and that “an Article 36 claim may be deemed forfeited under

state procedural rules because a defendant failed to raise the claim at trial.” Id. at 342.

status determination was made; (2) the nature of the sites where

apprehension and detention took place; and (3) any practical

obstacles inherent in resolving the prisoner’s entitlement to the

writ. As in Rasul, the Court distinguished previous case law,

noting that the instant detainees disputed their enemy status,

that their ability to dispute their status had been limited, that

they were held in a location (Guantanamo Bay, Cuba) under the

de facto jurisdiction of the United States, and that complying

with the demands of habeas petitions would not interfere with

the government’s military mission. Thus, the Court concluded

that the Suspension Clause was in full effect regarding these

detainees.

Clause 2. Treaties and Appointment of Officers

THE TREATY-MAKING POWER

Treaties as Law of the Land

[P. 494, n.271, add after “(1884),” before period in initial citation:]

(quoted with approval in Medellin v. Texas, 128 S. Ct. 1346, 1357, 1358-59 (2008))

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

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

courts. “If treaties are to be given effect as federal law under our

legal system, determining their meaning as a matter of federal

law ‘is emphatically the province and duty of the judicial department,’ headed by the ‘one supreme Court’ established by the

Constitution.” Yet, “[w]hile courts interpret treaties for them- 17

selves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement
24 ARTICLE II–EXECUTIVE DEPARTMENT

 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Kolovrat v. Oregon, 366 U.S. 18

187, 194 (1961).

 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International 19

Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the

Court).

 Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 20

371, 375 (1998) (per curiam).

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008) (emphasis in the original, internal 21

quotation marks omitted). As in the case of the foreign nationals in Sanchez-Llamas,

Medellin’s nation’s consul had not been notified that he had been detained in the United

States. Unlike the foreign nationals in Sanchez-Llamas, however, Medellin was named

in an ICJ decision that found a violation of Article 36 of the Vienna Convention.

 Medellin v. Texas, 128 S. Ct. 1346, 1353 (2008). “[T]he non-self-executing 22

character of a treaty constrains the President’s ability to comply with treaty commitments by unilaterally making the treaty binding on domestic courts.” Id. at 1371. The

majority opinion in Medellin was written by Chief Justice Roberts. Justice Stevens,

concurring, noted that, even though the ICJ decision “is not ‘the supreme Law of the

Land,’ U.S. Const., Art. VI, cl. 2,” it constitutes an international law obligation not only

on the part of the United States, but on the part of the State of Texas. Id. at 1374. This,

of course, does not make it enforceable against Texas, but Justice Stevens found that

“[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375.

(continued...)

is given great weight.” Decisions of the International Court of 18

Justice (ICJ) interpreting treaties, however, have “no binding

force except between the parties and in respect of that particular

case.” ICJ decisions “are therefore entitled only to the ‘respect- 19

ful consideration’ due an interpretation of an international

agreement by an international court.”20

Even when an ICJ decision has binding force as between the

governments of two nations, it is not necessarily enforceable by

the individuals affected. If, for example, the ICJ finds that the

United States violated a particular defendant’s rights under

international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not

necessarily “constitute binding federal law enforceable in United

States courts. . . . [W]hile treaties may comprise international

commitments . . . they are not domestic law unless Congress has

either enacted implementing statutes or the treaty itself conveys

an intention that it be self-executing and is ratified on these

terms.” A memorandum from the President of the United 21

States directing that the United States would “discharge its

international obligations” under an ICJ decision interpreting a

non-self-executing treaty, “by having State courts give effect to

the decision,” is not sufficient to make the decision binding on

state courts, unless the President’s action is authorized by

Congress.22
ARTICLE II–EXECUTIVE DEPARTMENT 25

 (...continued) 22

Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the

consent of the United States to the ICJ’s jurisdiction[ ] bind[s] the courts no less than

would ‘an act of the [federal] legislature.’” Id. at 1376. The dissent believed that, to find

treaties non-self-executing “can threaten the application of provisions in many existing

commercial and other treaties and make it more difficult to negotiate new ones.” Id. at

1381-82. Moreover, Justice Breyer wrote, the Court’s decision “place[s] the fate of an

international promise made by the United States in the hands of a single State. . . . And

that is precisely the situation that the Framers sought to prevent by enacting the

Supremacy Clause.” Id. at 1384. On August 5, 2008, the U.S. Supreme Court denied

Medellin a stay of execution, and Texas executed him on the same day.

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Whitney v. Robertson, 23

124 U.S. 190, 194 (1888).

 Foster v. Neilson, 27 U.S. (2 Pet.) at 314. 24

 Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008), quoting Ingartua-De La Rosa v. 2 5

United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc).

– When is a Treaty Self-Executing

[P. 501, at the end of the first sentence in the section, change

period to a comma and insert:]

in which case they are enforceable only after the enactment of

“legislation to carry them into effect.”23

[P. 501, in the second sentence in the section, change “citizen” to

“litigant”]

[P. 501, three lines from the bottom of the page, after “provision.”, substitute for the rest of the paragraph and the first

paragraph that begins on p. 502:]

A treaty will not be self-executing, however, “when the terms of

the [treaty] stipulation import a contract – when either of the

parties engages to perform a particular act. . . .” When this is the

case, “the treaty addresses itself to the political, not the judicial

department; and the legislature must execute the contract, before

it can become a rule for the court.”24

Sometimes the nature of a treaty will determine whether it

requires legislative execution or “conveys an intention that it be

‘self-executing’ and is ratified on these terms.” One authority 25

states that whether a treaty is self-executing “depends upon

whether the obligation is imposed on private individuals or on

public authorities. . . .”
26 ARTICLE II–EXECUTIVE DEPARTMENT

E.g., United States v. One Bag of Paradise Feathers, 256 F. 301, 306 (2d Cir. 26

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

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

 539 U.S. 396 (2003). The Court’s opinion in Dames & Moore v. Regan, 453 U.S. 27

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.

 539 U.S. at 416. 28

 539 U.S. at 413. 29

 539 U.S. at 420. 30

INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

The Domestic Obligation of Executive Agreements

[P. 527, substitute for first sentence of first full paragraph on the

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. The Supreme Court, however, found another basis for 26

holding state laws to be preempted by executive agreements,

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

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

Belmont and Pink were reinforced in American Insurance

Association v. Garamendi. In holding that California’s Holo- 27

caust 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.” The preemptive reach of executive agreements 28

stems from “the Constitution’s allocation of the foreign relations

power to the National Government.” Because there was a “clear 29

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.30
ARTICLE II–EXECUTIVE DEPARTMENT 27

 Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-76 (1840). See also United States 31

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 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”).

 United States v. Pink, 315 U.S. 203, 233-34 (1942). Chief Justice Stone and 32

Justice Roberts dissented.

[P. 529, add new section after “The Domestic Obligation of

Executive Agreements”:]

State Laws Affecting Foreign Relations — Dormant Federal

Power and Preemption

If the foreign relations power is truly an exclusive federal

power, with no role for the states, a logical consequence, the

Supreme Court has held, is that some state laws impinging on

foreign relations are invalid even in the absence of a relevant

federal policy. There is, in effect, a “dormant” foreign relations

power. The scope of this power remains undefined, however, and

its constitutional basis is debated by scholars.

The exclusive nature of the federal foreign relations power

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

example, the Court declared that “it was one of the main objects

of the constitution to make us, so far as regarded our foreign

relations, one people, and one nation; and to cut off all communications between foreign governments, and the several state

authorities.” A hundred years later the Court remained em- 31

phatic 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.”32

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
28 ARTICLE II–EXECUTIVE DEPARTMENT

 389 U.S. 429 (1968). 33

 In Clark v. Allen, 331 U.S. 503 (1947), the Court had upheld a simple reciprocity 34

requirement that did not have the additional requirement relating to confiscation.

 389 U.S. at 440. 35

 389 U.S. at 440, 441. 36

See, e.g., Michael D. Ramsey, The Power of the States in Foreign Affairs: The 37

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).

federal policy. In Zschernig v. Miller, the Court invalidated an 33

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.” Although a Justice Department 34

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. Regulation of 35

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.”36

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

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

in which the Court has applied a dormant foreign relations power

to strike down state law. There was renewed academic interest

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

sought ways to express dissatisfaction with human rights policies

of foreign governments or to curtail trade with out-of-favor

countries. In 1999, the Court struck down Massachusetts’ 37

Burma sanctions law on the basis of statutory preemption, and

declined to address the appeals court’s alternative holding
ARTICLE II–EXECUTIVE DEPARTMENT 29

 Crosby v. National Foreign Trade Council, 530 U.S. 363, 374 n.8 (1999). For the 38

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

181 F.3d 38, 49-61 (1st Cir. 1999).

 American Insurance Association v. Garamendi, 539 U.S. at 419 & n.11 (2003). 39

 It is contended, for example, that Article I, § 10’s specific prohibitions against 4 0

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

of marque and reprisal would have been unnecessary if a more general, dormant foreign

relations power had been intended. Similarly, there would have been no need to declare

treaties to be the supreme law of the land if a more generalized foreign affairs preemptive power existed outside of the Supremacy Clause. See Ramsey, supra, 75 NOTRE DAME

L. REV. 341.

 Arguably, part of the “executive power” vested in the President by Art. II, § 1 is a 41

power to conduct foreign relations.

 539 U.S. at 419 n.11. 42

 Justice Ginsburg’s dissent in Garamendi, joined by the other three dissenters, 43

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.34, at 164).

(continued...)

applying Zschernig. Similarly, in 2003 the Court held that 38

California’s Holocaust Victim Insurance Relief Act was preempted as interfering with federal foreign policy reflected in

executive agreements, and, although the Court discussed

Zschernig at some length, it saw no need to resolve issues relating to its scope.39

Dictum in Garamendi recognizes some of the questions that

can be raised about Zschernig. The Zschernig Court did not

identify what language in the Constitution mandates preemption,

and commentators have observed that a respectable argument

can be made that the Constitution does not require a general

foreign affairs preemption not tied to the Supremacy Clause, and

broader than and independent of the Constitution’s specific

prohibitions and grants of power. The Garamendi Court 40 41

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 responsibility, “but

in a way that affects foreign relations.” We must await further 42

litigation to see whether the Court employs this distinction.43
30 ARTICLE II–EXECUTIVE DEPARTMENT

 (...continued) 43

But Justice Ginsburg also voiced more general misgivings about judges’ becoming “the

expositors of the Nation’s foreign policy.” Id. at 442. In this context, see Goldsmith,

supra n.34, at 1631, describing Zschernig preemption as “a form of the federal common

law of foreign relations.”

 53 Stat. 1147, 1148 (1939), then 5 U.S.C. § 7324(a). The 1940 law, § 12(a), 54 44

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

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

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

Act of Oct. 15, 1974, P. L. 93-443, § 401(a), 88 Stat. 1290, 5 U.S.C. § 1502.

 330 U.S. 75 (1947). See also Civil Serv. Corp. v. National Ass’n of Letter Carriers, 45

413 U.S. 548 (1973), in which the constitutional attack was renewed, in large part based

on the Court’s expanding free speech jurisprudence, but the act was again sustained. A

“little Hatch Act” of a state, applying to its employees, was sustained in Broadrick v.

Oklahoma, 413 U.S. 601 (1973).

 P. L. 103-94, § 2(a), 107 Stat. 1001 (1993), 5 U.S.C. §§ 7321-7326. Executive 46

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

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

employed by agencies involved in law enforcement or national security, remain under

restrictions similar to the those in the old Hatch Act on taking an active part in political

management or political campaigns.

THE EXECUTIVE ESTABLISHMENT

Appointments and Congressional Regulation of Offices

– Congressional Regulation of Conduct in Office

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

Until 1993, § 9(a) of the Hatch Act prohibited any person 44

in the executive branch, or any executive branch department or

agency, except the President and the Vice President and certain

“policy determining” officers, to “take an active part in political

management or political campaigns,” although employees had

been permitted to “express their opinions on all political subjects

and candidates.” In United Public Workers v. Mitchell, these 45

provisions were upheld as “reasonable” against objections based

on the First, Fifth, Ninth, and Tenth Amendments. The Hatch

Act Reform Amendments of 1993, however, substantially liberalized the rules for political activities during off-duty hours for

most executive branch employees, subject to certain limitations

on off-duty hours activities and express prohibitions against

on-the-job partisan political activities.46
ARTICLE II–EXECUTIVE DEPARTMENT 31

Reynolds, 345 U.S. at 11, n.26. 47

 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 544 U.S. 1, 9 (2005) (reiterating 48

and applying Totten’s “broader holding that lawsuits premised on alleged espionage

agreements are altogether forbidden”). The Court in Tenet distinguished Webster v. Doe

on the basis of “an obvious difference . . . between a suit brought by an acknowledged

(though covert) employee of the CIA and one filed by an alleged former spy.” Id. at 10.

 Cheney v. United States District Court, 542 U.S. 367 (2004). 49

 Although the information sought in Nixon was important to “the constitutional 50

need for production of relevant evidence in a criminal proceeding,” the suit against the

Vice President was civil, and withholding the information “does not hamper another

branch’s ability to perform its ‘essential functions.’” 542 U.S. at 383, 384.

 The Court recognized “the paramount necessity of protecting the Executive 51

Branch from vexatious litigation that might distract it from the energetic performance of

its constitutional duties.” 542 U.S. at 382. But cf. Clinton v. Jones, 520 U.S. 681, 702

(1997).

The Presidential Aegis: Demands for Papers

– Private Access to Government Information

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

Reynolds dealt with an evidentiary privilege. There are

other circumstances, however, in which cases must be “dismissed

on the pleadings without ever reaching the question of

evidence.” In holding that federal courts should refuse to 47

entertain a breach of contract action seeking enforcement of an

agreement to compensate someone who performed espionage

services during the Civil War, the Court in Totten v. United

States declared that “public policy forbids the maintenance of any

suit in a court of justice, the trial of which would inevitably lead

to the disclosure of matters which the law itself regards as

confidential.”48

– Prosecutorial and Grand Jury Access to Presidential Documents

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

Public disclosure was at issue in 2004 when the Court weighed a

claim of executive privilege asserted as a bar to discovery orders

for information disclosing the identities of individuals who served

on an energy task force chaired by the Vice President. Although 49

the case was remanded on narrow technical grounds, the Court

distinguished United States v. Nixon, and, in instructing the 50

appeals court on how to proceed, emphasized the importance of

confidentiality for advice tendered the President.51
32 ARTICLE II–EXECUTIVE DEPARTMENT

PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS:

THE STEEL SEIZURE CASE

Power Denied by Congress

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

In Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006), Justice Kennedy, in a concurring

opinion joined by three other Justices, endorsed “the three-part scheme used by Justice

Jackson” as “[t]he proper framework for assessing whether Executive actions are

authorized.” The Court in this case found “that the military commission convened [by the

President, in Guantanamo Bay, Cuba] to try Hamdan lacks power to proceed because its

structure and procedures violate [the Uniform Code of Military Justice].” Id. at 567.

Thus, as Justice Kennedy noted, “the President has acted in a field with a history of

congressional participation and regulation.” Id. at 638.
 Randall v. Brigham, 74 U.S. 523, 537 (1869). Judicial immunity “is a general 1

principle of the highest importance to the proper administration of justice . . . . Liability

. . . would destroy that independence without which no judiciary can be either respectable

or useful. . . . Nor can this exemption of the judges from civil liability be affected by the

motives with which their judicial acts are performed.” Bradley v. Fisher, 80 U.S. 335,

347 (1872).

33

ARTICLE III

Section 1. Judicial Power, Courts, Judges

JUDICIAL POWER

Finality of Judgment as an Attribute of Judicial Power

– Award of Execution

[P. 654, add to n.160:]

Wallace and Haworth were cited with approval in Medimmune, Inc. v. Genetech, Inc., 127

S. Ct. 764, 771 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and

‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory

Judgment Act, 28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or

be in breach of its license agreement before it can seek a declaratory judgment that the

underlying patent is invalid, unenforceable, or not infringed,” id. at 767).

[P. 654, add new section after “Chief Justice Taney’s formulation”:]

Judicial Immunity from Suit

Under common law – the Supreme Court has not elevated

judicial immunity from suit to a constitutional principle – judges

“are responsible to the people alone for the manner in which they

perform their duties. If faithless, if corrupt, if dishonest, if

partial, if oppressive or arbitrary, they may be called to account

by impeachment, and removed from office. . . . But responsible

they are not to private parties in civil actions for the judicial acts,

however injurious may be those acts, and however much they

may deserve condemnation, unless perhaps where the acts are

palpably in excess of the jurisdiction of the judges, and are done

maliciously or corruptly.” Three years later, the Court qualified 1

this exception to judges’ immunity: the phrase beginning “unless,

perhaps,” the Court wrote, was “not necessary to a correct

statement of the law, and . . . judges . . . are not liable to civil

actions for their judicial acts, even when such acts are in excess
34 ARTICLE III–JUDICIAL DEPARTMENT

Bradley v. Fisher, 80 U.S. 335, 351 (1872). The Court offered a hypothetical 2

example of the distinction. A judge of a probate court who held a criminal trial would act

in clear absence of all jurisdiction over the subject matter, whereas a judge of a criminal

court who held a criminal trial for an offense that was not illegal would act merely in

excess of his jurisdiction. Id. at 352.

 435 U.S. 349 (1978). 3

 435 U.S. at 357, 358. The defendant was an Indiana state court judge, but the 4

suit was in federal court under 42 U.S.C. § 1983. The Court noted that it had held in

Pierson v. Ray, 386 U.S. 547 (1967), that there was no indication that, in enacting this

statute, Congress had intended to abolish the principle of judicial immunity established

in Bradley v. Fisher, supra.

 435 U.S. at 362. Justice Stewart’s dissent, joined by Justices Marshall and 5

Powell, concluded that what Judge Stump did “was beyond the pale of anything that

could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote,

provided for administrative proceedings for the sterilization of certain people who were

institutionalized (which the girl in this case was not), and what Judge Stump did “was in

no way an act ‘normally performed by a judge.’” Id. at 367.

of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between

excess of jurisdiction and the clear absence of all jurisdiction over

the subject-matter,” with judges subject to liability only in the

latter instance.2

In Stump v. Sparkman, the Court upheld the immunity of a

judge who approved a petition from the mother of a 15-year-old

girl to have the girl sterilized without her knowledge (she was

told that she was to have her appendix removed). In a 5-to-3 3

opinion, the Court found that there was not the “clear absence of

all jurisdiction” that is required to hold a judge civilly liable. The

judge had jurisdiction “in all cases at law and in equity whatsoever,” except where exclusive jurisdiction is “conferred by law

upon some other court, board, or officer,” and no statute or case

law prohibited the judge from considering a petition for sterilization. The Court also rejected the argument that the judge's 4

approving the petition had not constituted a “judicial act.” The

Court found “that the factors determining whether an act by a

judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to

the expectations of the parties, i.e., whether they dealt with the

judge in his judicial capacity. . . . Judge Stump performed the

type of act normally performed only by judges and . . . he did so in

his capacity as a [judge].”5

Although judges are generally immune from suits for

damages, the Court has held that a judge may be enjoined from

enforcing a court rule, such as a restriction on lawyer advertising
ARTICLE III–JUDICIAL DEPARTMENT 35

 Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 6

(1980).

 Pulliam v. Allen, 466 U.S. 522, 524-25 (1984). 7

 42 U.S.C. § 1988(b). Under this statute, “suits brought against individual officers 8

for injunctive relief are for all practical purposes suits against the State itself,” and,

therefore, the state must “bear the burden of the counsel fees award.” Hutto v. Finney,

437 U.S. 678, 700 (1978).

Consumers Union, 446 U.S. at 738-39. This is not the case, however, when judges 9

are sued in their legislative capacity for having issued a rule. Id. at 734.

Pulliam, 466 U.S. at 544. In 1996, Public Law 104-317, § 309, amended § 1988(b) 10

to preclude the award of attorneys’ fees in a suit against a judicial officer unless the

officer’s action “was clearly in excess of such officer's jurisdiction.”

 Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. 11

INS v. St. Cyr, 533 U.S. 289, 301 (2001), as quoted in Rasul v. Bush, 542 U.S. 1 2

466, 474 (2004).

that violates the First Amendment. Similarly, a state court 6

magistrate may be enjoined from “imposing bail on persons

arrested for nonjailable offenses under Virginia law and . . .

incarcerating those persons if they could not meet the bail. . . .”7

But what if the prevailing party, as it did in these two cases,

seeks an award of attorneys’ fees under the Civil Rights Attorney’s Fees Awards Act of 1976? The Court found that “Congress 8

intended to permit attorney’s fees awards in cases in which

prospective relief was properly awarded against defendants who

would be immune from damage awards.” In fact, “Congress’ 9

intent could hardly be more plain. Judicial immunity is no bar to

the award of attorney’s fees under 42 U.S.C. § 1988.”10

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 [retain 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, as a means “to relieve detention by 11

executive authorities without judicial trial.” Nowhere in the 12

Constitution, however, is the power to issue the writ vested in the

federal courts.
36 ARTICLE III–JUDICIAL DEPARTMENT

 128 S. Ct. 2229 (2008). 13

 In Rasul v. Bush, 542 U.S. 466 (2004), the Court found that 28 U.S.C. § 2241, the 14

federal habeas statute, applied to these detainees. Congress then removed all court

jurisdiction over these detainees under the Detainee Treatment Act of 2005, P.L.

109-148, §1005(e)(1) (providing that “no court . . . shall have jurisdiction to hear or

consider . . . an application for . . . habeas corpus filed by . . . an alien detained . . . at

Guantanamo Bay).” After the Court decided in Hamdan v. Rumsfeld, 548 U.S. 557

(2006), that the Detainee Treatment Act did not apply to detainees whose cases were

pending at the time of enactment, it was amended by the Military Commissions Act of

2006, P.L. 109-366, to also apply to pending cases where a detainee had been determined

to be an enemy combatant.

 128 S. Ct. at 2251. 15

 128 S. Ct. at 2258, 2259. 16

 Under the Detainee Treatment Act, P.L. 109-148, Title X, Congress granted only 17

a limited appeal right to determination made by the Executive Branch as to “(i) whether

the status determination of [a] Combatant Status Review Tribunal . . . was consistent

with the standards and procedures specified by the Secretary of Defense . . . and (ii) to

the extent the Constitution and laws of the United States are applicable, whether the use

of such standards and procedures to make the determination is consistent with the

Constitution and laws of the United States.” § 1005(e)(2)(C).

[P. 671, add to text at the end of the section:]

For practical purposes, the issue appears to have been

resolved by Boumediene v. Bush, where the Court held that 13

Congress’ attempt to eliminate all federal habeas jurisdiction

over “enemy combatant” detainees held at Guantanamo Bay14

violated the Suspension Clause. Although the Court did not

explicitly identify whether the underlying right to habeas that

was at issue arose from statute, common law, or the Constitution

itself, it did decline to infer “too much” from the lack of historical

examples of habeas being extended to enemy aliens held

overseas. In Boumediene, the Court instead emphasized a 15

“functional” approach that considered the citizenship and status

of the detainee, the adequacy of the process through which the

status determination was made, the nature of the sites where

apprehension and detention took place, and any practical obstacles inherent in resolving the prisoner’s entitlement to the writ.16

In further determining that the procedures afforded to the

detainees to challenge their detention in court were not adequate

substitutes for habeas, the Court noted the heightened due

process concerns when a detention is based principally on Executive Branch proceedings – here, Combatant Status Review

Tribunals or (CSRTs) – rather than proceedings before a court of

law. The Court also expressed concern that the detentions had, 17

in some cases, lasted as long as six years without significant
ARTICLE III–JUDICIAL DEPARTMENT 37

 128 S. Ct. at 2263, 2275. 18

 The Court focused in particular on the inability of the reviewing court to admit 19

and consider relevant exculpatory evidence that was not introduced in the prior

proceeding. The Court also listed other potential constitutional infirmities in the review

process, including the absence of provisions empowering the D.C. Circuit to order release

from detention, and not permitting petitioners to challenge the President's authority to

detain them indefinitely.

 Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973) (issue is 20

whether “the custodian can be reached by service of process”). See also Rasul v. Bush,

542 U.S. 466 (2004) (federal district court for District of Columbia had jurisdiction of

habeas petitions from prisoners held at U.S. Naval base at Guantanamo Bay, Cuba);

Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal district court in New York lacks

jurisdiction over prisoner being held in a naval brig in Charleston, South Carolina; the

commander of the brig, not the Secretary of Defense, is the immediate custodian and

proper respondent).

judicial oversight. The Court further noted the limitations at 18

the CSRT stage on a detainee’s ability to find and present evi

dence to challenge the government’s case, the unavailability of

assistance of counsel, the inability of a detainee to access certain

classified government records which could contain critical allegations against him, and the admission of hearsay evidence. While

reserving judgment as to whether the CSRT process itself comports with due process, the Court found that the appeals process

for these decisions, assigned to the United States Court of

Appeals for the District of Columbia, did not contain the means

necessary to correct errors occurring in the CSRT process.19

– Habeas Corpus: The Process of the Writ

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

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

under the jurisdictional statute is whether the custodian is

within the district court’s jurisdiction.20
38 ARTICLE III–JUDICIAL DEPARTMENT

 Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438, 1453, 1456 21

(2007) (internal quotation marks omitted). In this case, “EPA maintain[ed] that because

greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an

insuperable jurisdictional obstacle.” The Court, however, found that “EPA’s steadfast

refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts

that is both ‘actual’ and ‘imminent.’” Id. at 1453, 1455.

Section 2. Judicial Power and Jurisdiction

Clause 1. Cases and Controversies; Grants of Jurisdiction

JUDICIAL POWER AND JURISDICTION — CASES AND CONTROVERSIES

Substantial Interest: Standing

– Citizen Suits [change this heading to “Generalized or Widespread Injuries”]

[P. 688, add to n.346, before the period at the end of penultimate

sentence:]

; Lance v. Coffman, 127 S. Ct. 1194, 1198 (2007) (per curiam)

[P. 688, add to text after n.346:]

Notwithstanding that a generalized injury that all citizens share

is insufficient to confer standing, where a plaintiff alleges that

the defendant’s action injures him in “a concrete and personal

way,” “it does not matter how many [other] persons have [also]

been injured. . . . Where a harm is concrete, though widely

shared, the Court has found injury in fact.”21

– Taxpayer Suits

[P. 688, add to n.348:]

In Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007), the

Court added that, “if every federal taxpayer could sue to challenge any Government

expenditure, the federal courts would cease to function as courts of law and would be cast

in the role of general complaint bureaus.”

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

The Court again took this approach in Hein v. Freedom From Religion Foundation, Inc.,

127 S. Ct. 2553, 2569 (2007), finding that “Flast itself gave too little weight to [separation-of-powers] concerns.”

[P. 690, substitute for the sentence in the text after n.352:]

The Court also refused to create an exception for Commerce
ARTICLE III–JUDICIAL DEPARTMENT 39

 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347-49 (2006) (standing denied to 22

taxpayer claim that state tax credit given to vehicle manufacturer violated the Commerce

Clause).

 Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553, 2559 (2007). 23

This decision does not affect Establishment Clause cases in which the plaintiff can allege

a personal injury. A plaintiff who challenges a government display of a religious object,

for example, need not sue as a taxpayer but may have standing “by alleging that he has

undertaken a ‘special burden’ or has altered his behavior to avoid the object that gives

him offense. . . . [I]t is enough for standing purposes that a plaintiff allege that he ‘must

come into direct and unwelcome contact with the religious display to participate fully as

[a] citizen[ ] . . . and to fulfill . . . legal obligations.’” Books v. Elkhart County, 410 F.3d

857, 861 (7th Cir. 2005). In Van Orden v. Perry, 545 U.S. 677. 682 (2005), the Court,

without mentioning standing, noted that the plaintiff “has encountered the Ten Commandments monument during his frequent visits to the [Texas State] Capitol grounds.

His visits are typically for the purpose of using the law library in the Supreme Court

building, which is located just northwest of the Capitol building.”

 127 S. Ct. at 2568 (citations omitted). Justices Scalia and Thomas concurred in 24

the judgment but would have overruled Flast. Justice Souter, joined by three other

justices, dissented because he saw no logic in the distinction the plurality drew, as the

plurality did not and could not have suggested that the taxpayers in Hein “have any less

stake in the outcome than the taxpayers in Flast.” Id. at 2584.

 342 U.S. at 434. 25

Clause violations to the general prohibition on taxpayer

standing.22

Most recently, a Court plurality held that, even in Establishment Clause cases, there is no taxpayer standing where the

expenditure of funds that is challenged was not specifically

authorized by Congress, but came from general executive branch

appropriations. Where expenditures “were not expressly 23

authorized or mandated by any specific congressional enactment,”

a lawsuit challenging them “is not directed at an exercise of

congressional power and thus lacks the requisite ‘logical nexus’

between taxpayer status ‘and the type of legislative enactment

attacked.’”24

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

In DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 349 (2006), the Court held that a

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

tax credit.

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

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

direct dollars-and-cents injury but is a religious difference.”25

This rationale was similar to the spending program-regulatory

program distinction of Flast. But, even a dollar-and-cents injury

resulting from a state spending program will apparently not

constitute a direct dollars-and-cents injury. The Court in
40 ARTICLE III–JUDICIAL DEPARTMENT

 342 U.S. at 434, quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923); 26

quoted with approval in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 345 (2006).

 Sprint Communications Co., L.P. v. APCC Services, Inc., 128 S. Ct. 2531 (2008) 27

(payphone operators had assigned claims against long-distance carriers to “aggregators”

to sue on their behalf). Chief Justice Roberts, in a dissent joined by Justices Scalia,

Thomas, and Alito, stated that the aggregators lacked standing because they ”have

nothing to gain from their lawsuit.” Id. at 2549.

 128 S. Ct. at 2543. 28

Doremus wrote that a taxpayer challenging either a federal or a

state statute “must be able to show not only that the statute is

invalid but that he has sustained some direct injury as a result of

its enforcement, and not merely that he suffers in some indefinite

way in common with people generally.”26

– Constitutional Standards: Injury in Fact, Causation, and

Redressability

[P. 692, add to text after n.367:]

Citing this holding, and historical precedent, the Court upheld

the standing of an assignee who had promised to remit the

proceeds of the litigation to the assignor. The Court noted that 27

“federal courts routinely entertain suits which will result in relief

for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians at litem bring

suits to benefit their wards; receivers bring suit to benefit their

receiverships; assignees in bankruptcy bring suit to benefit

bankrupt estates; and so forth.”28

[P. 693, add to n.370:]

But see, Davis v. Federal Election Commission, 128 S. Ct. 2759, 2769 (2008), in which the

Court held that “the injury required for standing need not be actualized. A party facing

prospective injury has standing to sue where the threatened injury is real, immediate,

and direct.” In this case, a statute provided that, if a political candidate declares that he

will “self-finance,” then his opponent, if he qualifies, may receive individual contributions

beyond the normal limit. A self-financing candidate challenged the statute after he had

declared himself to be self-financing, but before his opponent had qualified for the higher

contribution limit; the Court found that the self-financing candidate faced “a realistic and

impending threat of direct injury” adequate for standing.

– Standing to Assert the Constitutional Rights of Others

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

Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 543 U.S. 123, 131 (2004), the

Court finding that attorneys seeking to represent hypothetical indigent clients in

challenging procedures for appointing appellate counsel had “no relationship at all” with

such potential clients, let alone a “close” relationship.
ARTICLE III–JUDICIAL DEPARTMENT 41

 Whorton v. Bockting, 127 S. Ct. 1173, 1180 (2007). 29

The Requirement of a Real Interest

– Declaratory Judgments

[P. 709, add to n.456:]

Wallace was cited with approval in Medimmune, Inc. v. Genentech, Inc., 127 S. Ct. 764,

771 (2007) (“Article III’s limitation of federal courts’ jurisdiction to ‘Cases’ and ‘Controversies,’ reflected in the ‘actual controversy’ requirement of the Declaratory Judgment Act,

28 U.S.C. § 2201(a), [does not] require[ ] a patent licensee to terminate or be in breach of

its license agreement before it can seek a declaratory judgment that the underlying patent

is invalid, unenforceable, or not infringed,” id. at 767).

[P. 709, add before the period at the end of n.458:]

(cited with approval in Medimmune, Inc. v. Genentech, Inc., 127 S. Ct. 764, 771 (2007))

– Retroactivity Versus Prospectivity

[P. 722, add before the period at the end of n.530:]

(cited with approval in Whorton v. Bockting, 127 S. Ct. 1173, 1180 (2007))

[P. 722, after the citation to Penry in n.533, change the period to a

semicolon and add:]

Whorton v. Bockting, 127 S. Ct. 1173, 1181 (2007).

[P. 722, in line 12 of the text, after the period following “will not

be applied,” add a new footnote:]

The approach in state collateral review proceedings, however, may be different. The Court

has indicated that the general rule regarding denial of retroactive application of “new

rules” in federal collateral proceeding was principally based on an interpretation of federal

statutory law. State collateral review of cases brought under state law may be more

generous to the defendant. Danforth v. Minnesota, 128 S. Ct. 1029 (2008).

[P. 722, in line 12 of the text, after the period following “will not

be applied,” add to text:]

“A new rule applies retroactively in a collateral proceeding only if

(1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of

criminal procedure’ implicating the fundamental fairness and

accuracy of the criminal proceeding.”29

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

For recent application of the principles, see Schriro v. Summerlin, 542 U.S. 348 (2004)

(requirement that aggravating factors justifying death penalty be found by the jury was a

new procedural rule that does not apply retroactively).
42 ARTICLE III–JUDICIAL DEPARTMENT

 Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948), cert. denied, 335 30

U.S. 887 (1948). See also Seese v. Bethlehem Steel Co., 168 F.2d 58, 65 (4th Cir. 1948).

For later dicta, see Johnson v. Robison, 415 U.S. 361, 366-67 (1974); Weinberger v. Salfi,

422 U.S. 749, 761-62 (1975); Territory of Guam v. Olsen, 431 U.S. 195, 201-02, 204 (1977);

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978); Bowen v. Michigan Academy

of Family Physicians, 476 U.S. 667, 681 n.12 (1986); Webster v. Doe, 486 U.S. 592, 603

(1988); but see id. at 611-15 (Justice Scalia dissenting). Note the relevance of United

States v. Mendoza-Lopez, 481 U.S. 828 (1987).

Political Questions

– The Doctrine Reappears

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

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

measuring burdens on representational rights imposed by political gerrymandering).

JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS

Cases Arising Under the Constitution, Laws, and Treaties of the

United States

– Federal Questions Resulting from Special Jurisdictional Grants

[P. 757, second paragraph of n.722, substitute for “hesitating” on

line 4 through “house)” on line 8:] 

refusing to apply Bivens when “any alternative, existing process for protecting the

interest” that is threatened exists, or when “any special factors counselling hesitation” are

present. Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007). See also Chappell v. Wallace,

462 U.S. 296, 298 (1983); Bush v. Lucas, 462 U.S. 367 (1983); Schweiker v. Chilicki, 487

U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v.

Malesko, 534 U.S. 61 (2001).

Clause 2. Original and Appellate Jurisdiction

POWER OF CONGRESS TO CONTROL THE FEDERAL

COURTS

The Theory Reconsidered

– Express Constitutional Restrictions on Congress

[P. 830, delete from “While some” in line 13 of the section,

through the end of the section, and substitute the following,

which corrects the statement in the main volume that the Portalto-Portal Act was disapproved by the Court of Appeals:]

The United States Court of Appeals for the Second Circuit

sustained the Act. The court noted that the withdrawal of 30

jurisdiction would be ineffective if the extinguishment of the
ARTICLE III–JUDICIAL DEPARTMENT 43

 169 F.2d at 257. 31

 169 F.2d at 261-62. 32

 The doctrine derives its name from Rooker v. Fidelity Trust Co., 263 U.S. 413 3 3

(1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

 Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005) 34

(Rooker-Feldman has no application when federal court proceedings have been initiated

prior to state court proceedings; preclusion law governs in that situation.)

claims as a substantive matter were invalid. “We think . . . that

the exercise by Congress of its control over jurisdiction is subject

to compliance with at least the requirements of the Fifth Amendment. That is to say, while Congress has the undoubted power to

give, withhold, and restrict the jurisdiction of the courts other

than the Supreme Court, it must not so exercise that power as to

deprive any person of life, liberty, or property without due

process of law or to take private property without just compensation.” The Court, however, found that the Portal-to-Portal Act 31

“did not violate the Fifth Amendment in so far as it may have

withdrawn from private individuals . . . any rights . . . which

rested upon private contracts they had made. Nor is the Portal-to-Portal Act a violation of Article III of the Constitution or an

encroachment upon the separate power of the judiciary.”32

FEDERAL-STATE COURT RELATIONS

Conflicts of Jurisdiction: Rules of Accommodation

– Res Judicata

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

Closely related is the Rooker-Feldman doctrine, holding that

federal subject-matter jurisdiction of federal district courts does

not extend to review of state court judgments. The Supreme 33

Court, not federal district courts, has such appellate jurisdiction.

The doctrine thus prevents losers in state court from obtaining

district court review, but “does not otherwise override or supplant

preclusion doctrine or augment the circumscribed doctrines that

allow federal courts to stay or dismiss proceedings in deference to

state-court actions.”34
44 ARTICLE III–JUDICIAL DEPARTMENT

Conflicts of Jurisdiction: Federal Court Interference with State

Courts

– Habeas Corpus: Scope of the Writ

[P. 855, add to the end of n.1296:]

This sentence was quoted again in Whorton v. Bockting, 127 S. Ct. 1173, 1181 (2007).

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

In House v. Bell, 547 U.S. 518, 554-55 (2006), the Court declined to resolve the issue that

in Herrera it had assumed without deciding: that “a truly persuasive demonstration of

‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” See Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences.
See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (stat- 1

utes); and Smithsonian Institution v. St. John, 214 U.S. 19 (1909) (state constitutional

provision).

 Baker v. General Motors Corp., 522 U.S. 222, 232 (1998), quoted in Franchise Tax 2

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

an analogy to international law, concluding that states, as well as nations, judge for

themselves the rules governing property and persons within their territories. Scott v.

Sandford, 60 U.S. (19 How.) 393, 460 (1857). “One State cannot exempt property from

taxation in another,” the Court concluded in Bonaparte v. Tax Court, 104 U.S. 592 (1882),

holding that no provision of the Constitution, including the Full Faith and Credit Clause,

enabled a law exempting from taxation certain debts of the enacting state to prevent

another state (the state in which the creditor resided) from taxing the debts. See also

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 589-96 (1839); Kryger v. Wilson, 242 U.S.

171 (1916); and Bond v. Hume, 243 U.S. 15 (1917).

 Baker v. General Motors Corp., 522 U.S. at 232. 3

45

ARTICLE IV

Section 1. Full Faith and Credit

RECOGNITION OF RIGHTS BASED UPON CONSTITUTIONS,

STATUTES, COMMON LAW

Development of the Modern Rule

[P. 896, substitute for entire section:]

Although the language of section one suggests that the same

respect should be accorded to “public acts” that is accorded to

“judicial proceedings” (“full faith and credit shall be given in each

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

other State”), and the Court has occasionally relied on this parity

of treatment, the Court has usually differentiated “the credit 1

owed to laws (legislative measures and common law) and to

judgments.” The current understanding is that the Full Faith 2

and Credit Clause is “exacting” with respect to final judgments of

courts, but “is less demanding with respect to choice of laws.”3

The Court has explained that where a statute or policy of

the forum state is set up as a defense to a suit brought under the

statute of another state or territory, or where a foreign statute is

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

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

Full Faith and Credit Clause and thus compelling courts of each

state to subordinate their own statutes to those of others, but by
46 ARTICLE IV – STATES’ RELATIONS

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

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, 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).

E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440 U.S. 410 5

(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).

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

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

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

weighing the governmental interests of each jurisdiction. That 4

is, the 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. In order for a state’s 5

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. Once 6

that threshold is met, the Court will not weigh the competing

interests. “[T]he question of which sovereign interest should be

deemed more weighty is not one that can be easily answered,” the

Court explained, “declin[ing] to embark on the constitutional

course of balancing coordinate States’ competing interests to

resolve conflicts of laws under the Full Faith and Credit Clause.”7

Section 2. Interstate Comity

Clause 1. State Citizenship: Privileges and Immunities

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

Origin and Purpose

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

A violation can occur whether or not a statute explicitly discrimi-
ARTICLE IV–STATES’ RELATIONS 47

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

basis for disparate treatment is not a sufficient basis for rejecting [a] claim.” Hillside

Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003).

nates against out-of-state interests.8

49

ARTICLE V

AMENDMENT OF THE CONSTITUTION

Proposing a Constitutional Amendment

– Proposals by Congress

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

In Hollingsworth v.Virginia, 3 U.S. (3 Dall.) 378 (1798), the Court rejected a challenge to

the Eleventh Amendment based on the argument that it had not been submitted to the

President for approval or veto. The Court’ s brief opinion merely determined that the

Eleventh Amendment was “constitutionally adopted.” Id. at 382. Apparently during oral

argument, Justice Chase opined that “[t]he negative of the President applies only to the

ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of

amendments to the Constitution.” Id. at 381. See Seth Barrett Tillman, A Textualist

Defense of Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia was Rightly Decided,

and Why INS v. Chadha was Wrongly Reasoned, 83 TEX. L. REV. 1265 (2005), for extensive

analysis of what Hollingsworth’s delphic pronouncement could mean. Whatever the Court

decided in Hollingsworth, it has since treated the issue as settled. See Hawke v. Smith,

253 U.S. 221, 229 (1920) (in Hollingsworth, “this court settled that the submission of a

constitutional amendment did not require the action of the President”); INS v. Chadha,

462 U.S. 919, 955 n.21 (1983) (in Hollingsworth, “the Court held Presidential approval

was unnecessary for a proposed constitutional amendment . . .”).

 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). 1

 Van Orden v. Perry, 545 U.S. 677 (2005). 2

 545 U.S. at 868. The Court in its previous Ten Commandments case, Stone v. 3

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

concluded that the Ten Commandments are “undeniably a sacred text,” and the 2005

Court accepted that characterization. McCreary, 545 U.S. at 859.

 545 U.S. at 881. An “indisputable” religious purpose was evident in the resolu- 4

tions authorizing a second display, and the Court characterized statements of purpose

accompanying authorization of the third displays as “only . . . a litigating position.” 545

U.S. at 870, 871.

51

FIRST AMENDMENT

RELIGION

Establishment of Religion

– Governmental Encouragement of Religion in Public Schools:

Prayers and Bible Readings

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

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

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

Allegiance with the words “under God.” Elk Grove Unified School District v. Newdow, 542

U.S. 1 (2004).

– Religious Displays on Government Property

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

Displays of the Ten Commandments on government property occasioned two decisions in 2005. As in Allegheny County, a

closely divided Court determined that one display violated the

Establishment Clause and one did not. And again, context and

imputed purpose made the difference. The Court struck down

display of the Ten Commandments in courthouses in two Kentucky counties, but held that a display on the grounds of the 1

Texas State Capitol was permissible. The displays in the 2

Kentucky courthouses originally “stood alone, not part of an

arguably secular display.” Moreover, the history of the displays 3

revealed “a predominantly religious purpose” that had not been

eliminated by steps taken to give the appearance of secular

objectives.4
52 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Only Justice Breyer voted to invalidate the courthouse displays and uphold the 5

capitol grounds display. The other eight Justices were split evenly, four (Chief Justice

Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both displays,

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

 545 U.S. at 700, 704, 703. 6

 545 U.S. at 702. 7

Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davey, 540 U.S. 712, 718 8

(2004); Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).

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

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

Capitol grounds display from the Kentucky courthouse displays.

In some contexts, the Ten Commandments can convey a moral

and historical message as well as a religious one, the Justice

explained. Although it was “a borderline case” turning on “a

practical matter of degree,” the capitol display served “a primarily nonreligious purpose.” The monument displaying the Ten 6

Commandments was one of 17 monuments and 21 historical

markers on the Capitol grounds; it was paid for by a private,

civic, and primarily secular organization; and it had been in

place, unchallenged, for 40 years. Under the circumstances,

Justice Breyer thought it unlikely that the monument will be

understood to represent an attempt by government to favor

religion.7

FREE EXERCISE OF RELIGION

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

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

neutrality which will permit religious exercise to exist without

[governmental] sponsorship and without interference.”8

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

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

and Institutionalized Persons Act of 2000 that prohibits governments from imposing a

“substantial burden on the religious exercise” of an institutionalized person unless the

burden furthers a “compelling governmental interest”).

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

Government need not, however, offer the same accommodations

to secular entities that it extends to religious practitioners in

order to facilitate their religious exercise; “[r]eligious accommoda-
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 53

 Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the 9

Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987)).

 Locke v. Davey, 540 U.S. 712 (2004). 10

 540 U.S. at 720-21. Excluding theology students but not students training for 11

other professions was permissible, the Court explained, because “[t]raining 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 721.

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

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)).

See, e.g., In re Young, 141 F.3d 854 (8th Cir. 1998), cert. denied, 525 U.S. 811 13

(1998) (RFRA is a valid exercise of Congress’ bankruptcy powers as applied to insulate a

debtor’s church tithes from recovery by the bankruptcy trustee); O’Bryan v. Bureau of

(continued...)

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

“Play in the joints” can work both ways, the Court ruled in

upholding a state’s exclusion of theology students from a college

scholarship program. Although the state could have included 10

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. Refusal to fund 11

religious training, the Court observed, was “far milder” than

restrictions on religious practices that have been held to offend

the Free Exercise Clause.12

Free Exercise Exemption from General Governmental Requirements

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

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

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

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

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

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

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

of Fourteenth Amendment enforcement power as applied to

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

applied to the federal government, and whether its requirements

could be imposed pursuant to other powers. Several lower courts

answered these questions affirmatively.13
54 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 13

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

Prisons to accommodate religious exercise by prisoners); Kikumura v. Hurley, 242 F.3d

950 (10th Cir. 2001) (RFRA applies to Bureau of Prisons).

 Pub. L. 106-274, 114 Stat. 804 (2000); 42 U.S.C. §§ 2000cc et seq. 14

 The Act requires that state and local zoning and landmark laws and regulations 15

which impose a substantial burden on an individual’s or institution’s exercise of religion

be measured by a strict scrutiny test, and applies the same strict scrutiny test for any

substantial burdens imposed on the exercise of religion by persons institutionalized in

state or locally run prisons, mental hospitals, juvenile detention facilities, and nursing

homes. Both provisions apply if the burden is imposed in a program that receives federal

financial assistance, or if the burden or its removal would affect commerce.

 544 U.S. 709 (2005). 16

 544 U.S. at 714. 17

 544 U.S. at 720. 18

Congress responded to Boerne by enacting a new law

purporting to rest on its commerce and spending powers. The

Religious Land Use and Institutionalized Persons Act (RLUIPA)14

imposes the same strict scrutiny test struck down in Boerne but

limits its application to certain land use regulations and to

religious exercise by persons in state institutions. In Cutter v. 15

Wilkinson, the Court upheld RLUIPA’s prisoner provision 16

against a facial challenge under the Establishment Clause, but it

did not rule on congressional power to enact RLUIPA. The Court

held that RLUIPA “does not, on its face, exceed the limits of

permissible government accommodation of religious practices.”17

Rather, the provision “fits within the corridor” between the Free

Exercise and Establishment Clauses, and is “compatible with the

[latter] because it alleviates exceptional government-created

burdens on private religious exercise.”18

FREEDOM OF EXPRESSION — SPEECH AND PRESS

The Doctrine of Prior Restraint

– Obscenity and Prior Restraint

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

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

in FW/PBS) the regulation simply conditions the operation of an adult business on

compliance with neutral and nondiscretionary criteria . . . and does not seek to censor

content, an adult business is not entitled to an unusually speedy judicial decision of the

Freedman type”);
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 55

Virginia v. Hicks, 539 U.S. 113, 119-20, 124 (2003) (italics in original; citations 19

omitted) (upholding, as not addressed to speech, an ordinance banning from streets

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

and who “cannot demonstrate a legitimate business or social purpose for being on the

premises”). Virginia v. Hicks cited Broadrick v. Oklahoma, 413 U.S. 601 (1973), which, in

the majority opinion 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,

(continued...)

Subsequent Punishment: Clear and Present Danger and Other

Tests

[P. 1107, change heading to “Modern Tests and Standards:

Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny,

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 n.484:]

But see Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184,

1190 (2008) (facial challenge to burden on right of association rejected “where the statute

has a ‘plainly legitimate sweep’”).

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

But, even in a First Amendment situation, the Court has

written, “there are substantial social costs created by the

overbreadth doctrine when it blocks application of a law to

constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now

swallow the social benefits of declaring a law ‘overbroad,’ we have

insisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope

of the law’s plainly legitimate applications, before applying the

‘strong medicine’ of overbreadth invalidation. . . . Rarely, if ever,

will an overbreadth challenge succeed against a law or regulation

that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”19
56 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 (...continued) 19

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).

 Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002). 20

 Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989). 21

 Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 790 (1994) (parentheses 22

omitted). The Court, however, applied a rational basis standard to uphold a state statute

that banned the sale of sexually explicit material to minors. Ginsberg v. New York, 390

U.S. 629, 641 (1968).

E.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (time, place, and manner 23

restriction upheld as “narrowly tailored to serve a significant government interest, and

(continued...)

Out of a concern that is closely related to that behind 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.” Thus, the Court applies 20

“strict scrutiny” to content-based regulations of fully protected

speech; this means that it requires that such regulations “promote a compelling interest” and use “the least restrictive means

to further the articulated interest.”21

With respect to speech restrictions to which the Court does

not apply strict scrutiny, the Court applies intermediate scrutiny;

i.e., scrutiny that is “midway between the ‘strict scrutiny’ demanded for content-based regulation of speech and the ‘rational

basis’ standard that is applied – under the Equal Protection

Clause – to government regulation of nonspeech activities.”22

Inter-mediate scrutiny requires that the governmental interest

be “significant” or “substantial” or “important” (but not necessarily “compelling”), and it requires that the restriction be narrowly

tailored (but not necessarily the least restrictive means to

advance the governmental interest). Speech restrictions to which

the Court does not apply strict scrutiny include those that are not

content-based (time, place, or manner restrictions; incidental

restrictions) and those that restrict categories of speech to which

the Court accords less than full First Amendment protection

(campaign contributions; commercial speech). Note that time, 23
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 57

 (...continued) 23

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 . . .”) (internal quotation mark and citation

omitted)). 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).

 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis in original). 24

 Erie v. Pap’s A.M., 529 U.S. 277, 291 (2000) (upholding ban on nude dancing); 2 5

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (upholding zoning of “adult

motion picture theaters”). Zoning and nude dancing cases are discussed below under

“Non-obscene But Sexually Explicit and Indecent Expression.”

 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984). 26

 United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993). 27

place, and manner restrictions, or incidental restrictions, may be

content-based, but they will not receive strict scrutiny if they “are

justified without reference to the content of the speech.”24

Examples are bans on nude dancing, and zoning restrictions on

pornographic theaters or bookstores, both of which receive

intermediate scrutiny on the ground that they are “aimed at

combating crime and other negative secondary effects,” and not at

the content of speech.25

The Court uses tests closely related to one another in these

instances in which it does not apply strict scrutiny. It has

indicated that the test for determining the constitutionality of an

incidental restriction on speech “in the last analysis is little, if

any, different from the standard applied to time, place, or manner

restrictions,” and that “the validity of time, place, or manner 26

restrictions is determined under standards very similar to those

applicable in the commercial speech context.”27

In addition, the Supreme Court generally requires – even

when applying less than strict scrutiny – 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
58 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (federal “must- 28

carry” provisions, which require cable television systems to devote a portion of their

channels to the transmission of local broadcast stations, upheld as a content-neutral,

incidental restriction on speech, not subject to strict scrutiny). The Court has applied the

same principle in weighing the constitutionality of two other speech restrictions to which

it does not apply strict scrutiny: restrictions on commercial speech, Edenfield v. Fane,

507 U.S. 761, 770-771 (1993) (“a governmental body seeking to sustain a restriction on

commercial speech must demonstrate that the harms it recites are real”), and restrictions

on campaign contributions, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,

392 (2000) (“We have never accepted mere conjecture as adequate to carry a First

Amendment burden”).

 Ginsberg v. New York, 390 U.S. 629, 641 (1968) (upholding ban on sale to minors 29

of “girlie” magazines, and noting that, although “studies all agree that a causal link

[between ‘minors’ reading and seeing sexual material’ and an impairment in their ‘ethical

and moral development’] has not been demonstrated, they are equally agreed that a

causal link has not been disproved either,” id. at 641-42). In a case involving a federal

statute that restricted “signal bleed” of sexually explicit programming on cable television,

a federal district 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, a federal 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, “[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).

 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 127 S. Ct. 30

2489, 2495-96 (2007).

harms in a direct and material way.” The Court has held, 28

however, that to sustain a statute denying minors access to

sexually explicit material “requires only that we be able to say

that it was not irrational for the legislature to find that exposure

to material condemned by the statute is harmful to minors.”29

In certain other contexts, the Court has relied on “common

sense” rather than requiring the government to demonstrate that

a recited harm was real and not merely conjectural. For example,

it held that a rule prohibiting high school coaches from recruiting

middle school athletes did not violate the First Amendment,

finding that it needed “no empirical data to credit [the] common-sense conclusion that hard-sell [speech] tactics directed at

middle school students could lead to exploitation. . . .” On the 30

use of common sense in free speech cases, Justice Souter wrote:

“It is not that common sense is always illegitimate in First

Amendment demonstration. The need for independent proof

varies with the point that has to be established . . . . But we
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 59

 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 459 (2002) (Souter, J., 31

dissenting).

 Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). In 3 2

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

Supreme Court held that a fundraiser who has retained 85 percent of gross receipts from

donors, but falsely represented that “a significant amount of each dollar donated would

be paid over to” a charitable organization, could be sued for fraud.

 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). In Pacific Gas & 33

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

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

envelopes views of a consumer group with which it disagrees.

 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). 34

 Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). 35

must be careful about substituting common assumptions for

evidence when the evidence is as readily available as public

statistics and municipal property evaluations, lest we find out

when the evidence is gathered that the assumptions are highly

debatable.”31

Freedom of Belief

– Flag Salute Cases

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

Speech”]

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

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

assessment rather than through general taxes. Johanns v. Livestock Marketing Ass’n,

544 U.S. 550 (2005).

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

Other governmental efforts to compel speech have also been

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

include a North Carolina statute that required professional

fundraisers for charities to disclose to potential donors the gross

percentage of revenues retained in prior charitable solicitations,32

a Florida statute that required newspapers to grant political

candidates equal space to reply to the newspapers’ criticism and

attacks on their records, an Ohio statute that prohibited the 33

distribution of anonymous campaign literature, and a Massa- 34

chusetts statute that required private citizens who organized a

parade to include among the marchers a group imparting a

message – in this case support for gay rights – that the organizers did not wish to convey.35
60 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 652 n.14 (1985). 36

 Meese v. Keene, 481 U.S. 465, 480 (1987). 37

By contrast, the Supreme Court has found no First Amendment violation when government compels disclosures in commercial speech, or when it compels the labeling of foreign political

propaganda. Regarding compelled disclosures in commercial

speech, the Court held that an advertiser’s “constitutionally

protected interest in not providing any particular factual information in his advertising is minimal. . . . [A]n advertiser’s rights are

reasonably protected as long as disclosure requirements are

reasonably related to the State’s interest in preventing deception

of consumers. . . . The right of a commercial speaker not to

divulge accurate information regarding his services is not . . . a

fundamental right.” Regarding compelled labeling of foreign 36

political propaganda, the Court upheld a provision of the Foreign

Agents Registration Act of 1938 that required that, when an

agent of a foreign principal seeks to disseminate foreign “political

propaganda,” he must label such material with certain information, including his identity, the principal’s identity, and the fact

that he has registered with the Department of Justice. The Court

found that “Congress did not prohibit, edit, or restrain the

distribution of advocacy materials. . . . To the contrary, Congress

simply required the disseminators of such material to make

additional disclosures that would better enable the public to

evaluate the import of the propaganda.”37

Right of Association

[P. 1116, add before period at the end of n.530:]

, and see the comparison of Ohralik and Bates in Tennessee Secondary School Athletic

Ass’n v. Brentwood Academy, 127 S. Ct. 2489, 2494 (2007) (“solicitation ban was more akin

to a conduct regulation than a speech restriction”)

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

530 U.S. at 653. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547

U.S. 47, 69 (2006), the Court held that the Solomon Amendment’s forcing law schools to

allow military recruiters on campus does not violate the schools’ freedom of expressive

association because “[r]ecruiters are, by definition, outsiders who come onto campus for

the limited purpose of trying to hire students – not to become members of the school’s

expressive association. This distinction is critical. Unlike the public accommodations law

in Dale, the Solomon Amendment does not force a law school ‘to accept members it does

not desire.’” Rumsfeld is discussed below under “Government and the Power of the

Purse.”
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 61

 New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791, 797-98 (2008) 3 8

(citations omitted). In Lopez Torres, the Court upheld a state statute that required

political parties to select judicial candidates at a convention of delegates chosen by party

members in a primary election, rather than to select candidates in direct primary

elections. The statute was challenged by party members who had not been selected and

who claimed “that the convention process that follows the delegate election does not give

them a realistic chance to secure the party’s nomination.” Id. at 799. The Court rejected

their challenge, holding that, although a state may require “party-candidate selection

through processes more favorable to insurgents, such as primaries,” id. at 799, the

Constitution does not demand that a state do so. “Party conventions, with their

attendant ‘smoke-filled rooms’ and domination by party leaders, have long been an

accepted manner of selecting party candidates.” Id. at 799. The plaintiffs had an

associational right to join the party but not to have a certain degree of influence in the

party. Id. at 798.

– Political Association

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

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

primary, in which all registered voters, regardless of political affiliation, may participate,

unconstitutionally “forces political parties to associate with – to have their nominees, and

hence their positions, determined by – those who, at best, have refused to affiliate with

the party, and, at worst, have expressly affiliated with a rival.”); Clingman v. Beaver, 544

U.S. 581 (2005) (Oklahoma statute that allowed only registered members of a political

party, and registered independents, to vote in the party’s primary does not violate

freedom of association; Oklahoma’s “semiclosed primary system” distinguished from

Connecticut’s closed primary that was struck down in Tashjian).

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

If people have a First Amendment right to associate with

others to form a political party, then it follows that “[a] political

party has a First Amendment right to limit its membership as it

wishes, and to choose a candidate-selection process that will in its

view produce the nominee who best represents its political

platform. These rights are circumscribed, however, when the

State gives a party a role in the election process – as . . . by giving

certain parties the right to have their candidates appear on the

general-election ballot. Then, for example, the party’s racially

discriminatory action may become state action that violates the

Fifteenth Amendment. And then also the State acquires a

legitimate governmental interest in assuring the fairness of the

party’s nominating process, enabling it to prescribe what that

process must be.”38

A political party’s First Amendment right to limit its

membership as it wishes does not render invalid a state statute

that allows a candidate to designate his party preference on a

ballot, even when the candidate “is unaffiliated with, or even
62 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 39

1189 (2008). This was a 7-to-2 decision written by Justice Thomas, with Justices Scalia

and Kennedy dissenting.

 128 S. Ct. at 1192. 40

 128 S. Ct. at 1193. The Court saw “simply no basis to presume that a 41

well-informed electorate will interpret a candidate’s party preference designation to

mean that the candidate is the party’s chosen nominee or representative or that the

party associates with or approves of the candidate.” Id.

 A ballot could avoid confusion by, for example, “includ[ing] prominent disclaimers 42

explaining that party preference reflects only the self-designation of the candidate and

not an official endorsement by the party.” 128 S. Ct. at 1194. Justice Scalia, joined by

Justice Kennedy in dissent, wrote that “[a]n individual’s endorsement of a party shapes

the voter’s view of what the party stands for,” and that it is “quite impossible for the

ballot to satisfy a reasonable voter that the candidate is ‘not associated’ with the party for

which he has expressed a preference.” Id. at 1200.

 127 S. Ct. 2372 (2007). 43

 127 S. Ct. at 2377. 44

repugnant to, the party” he designates. This is because the 39

statute in question “never refers to the candidates as nominees of

any party, nor does it treat them as such”; it merely allows them

to indicate their party preference. The Court acknowledged 40

that “it is possible that voters will misinterpret the candidates’

party-preference designations as reflecting endorsement by the

parties,” but “whether voters will be confused by the

party-preference designations will depend in significant part on

the form of the ballot.” If the form of the ballot used in a 41

particular election is such as to confuse voters, then an as-applied

challenge to the statute may be appropriate, but a facial challenge, the Court held, is not.42

– Conflict Between Organization and Members

[P. 1125, add to text after n.583:]

In Davenport v. Washington Education Ass’n, the Court 43

noted that, although Chicago Teachers Union v. Hudson had “set

forth various procedural requirements that public-sector unions

collecting agency fees must observe in order to ensure that an

objecting nonmember can prevent the use of his fees for impermissible purposes,” it “never suggested that the First Amend- 44

ment is implicated whenever governments place limitations on a

union’s entitlement to agency fees above and beyond what Abood

and Hudson require. To the contrary, we have described Hudson

as ‘outlin[ing] a minimum set of procedures by which a [public-sector] union in an agency-shop relationship could meet its
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 63

 127 S. Ct. at 2379 (citations omitted). 45

 127 S. Ct. at 2378. 46

 127 S. Ct. at 2378 (citations omitted). 47

 543 U.S. 77 (2004) (per curiam). 48

 543 U.S. at 84. 49

 513 U.S. 454 (1995) (discussed under “Government as Employer: Political and 50

Other Outside Activities,” supra).

 543 U.S. at 84. 51

 543 U.S. at 80. 52

requirements under Abood.” Thus, the Court held in Davenport 45

that the State of Washington could prohibit “expenditure of a

nonmember’s agency fees for election-related purposes unless the

nonmember affirmatively consents.” And, the Court added that 46

“Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to

collective bargaining. Indeed, it is uncontested that it would be

constitutional for Washington to eliminate agency fees entirely.”47

Particular Government Regulations That Restrict Expression

– Government as Employer: Free Expression Generally

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

In City of San Diego v. Roe, the Court held that a police 48

department could fire a police officer who sold a video on the

adults-only section of eBay that showed him stripping off a police

uniform and masturbating. The Court found that the officer’s

“expression does not qualify as a matter of public concern . . . and

Pickering balancing does not come into play.” The Court also 49

noted that the officer’s speech, unlike federal employees’ speech

in United States v. National Treasury Employees Union

(NTEU), was linked to his official status as a police officer, and 50

designed to exploit his employer’s image,” and therefore “was

detrimental to the mission and functions of his employer.”51

Therefore, the Court had “little difficulty in concluding that the

City was not barred from terminating Roe under either line of

cases [i.e., Pickering or NTEU].” This leaves uncertain whether, 52

had the officer’s expression not been linked to his official status,

the Court would have overruled his firing under NTEU or would

have upheld it under Pickering on the ground that his expression

was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there
64 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 547 U.S. 410, 421 (2006). 53

 547 U.S. at 421. However, “[s]o long as employees are speaking as citizens about 54

matters of public concern, they must face only those speech restrictions that are

necessary for their employers to operate efficiently and effectively.” Id. at 419. Such

necessity, however, may be based on a “common-sense conclusion” rather than on

“empirical data.” Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 127

S. Ct. 2489, 2495 (2007).

 The Court cited Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), 5 5

for these points. In Givhan, the Court had upheld the First Amendment right of a public

school teacher to complain to the school principal about “employment policies and

practices at [the] school which [she] conceived to be racially discriminatory in purpose or

effect.” Id. at 413. The difference between Givhan and Ceballos was apparently that

Givhan’s complaints were not made pursuant to her job duties, whereas Ceballos’ were.

Therefore, Givhan spoke as a citizen whereas Ceballos spoke as a government employee.

See Ceballos, 547 U.S. at 420-21.

 547 U.S. at 421. 56

is no protection – Pickering balancing is not to be applied – “when

public employees make statements pursuant to their official

duties,” even if those statements are about matters of public

concern. In this case, a deputy district attorney had presented 53

his supervisor with a memo expressing his concern that an

affidavit that the office had used to obtain a search warrant

contained serious misrepresentations. The deputy district

attorney claimed that he was subjected to retaliatory employment

actions, and sued. The Supreme Court held “that when public

employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer discipline.” The fact that the employee’s 54

speech occurred inside his office, and the fact that the speech

concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection. Rather, the 55

“controlling factor” was that his expressions were made pursuant

to his duties.” Therefore, another employee in the office, with 56

different duties, might have had a First Amendment right to

utter the speech in question, and the deputy district attorney

himself might have had a First Amendment right to communicate

the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering

balancing.

[P. 1149, add footnote after “restraint.” on line 8:]

In Connick, the Court noted that it did not suggest “that Myers’ speech, even if not

touching upon a matter of public concern, is totally beyond the protection of the First

Amendment.” Rather, it was beyond First Amendment protection “absent the most

unusual of circumstances.” 461 U.S. at 147. In Ceballos, however, the Court, citing
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 65

 127 S. Ct. 2618 (2007). 57

 127 S. Ct. at 2624. 58

 127 S. Ct. at 2625. 59

 127 S. Ct. at 2636. 60

 424 U.S. at 22. 61

Connick at 147, wrote that, if an employee did not speak as a citizen on a matter of public

concern, then “the employee has no First Amendment cause of action based on his or her

employer’s reaction to the speech.” 547 U.S. at 418.

– Government as Educator

[P. 1154, add to text after n.725:]

In Morse v. Frederick, the Court held that a school could 57

punish a pupil for displaying a banner that said, “BONG HiTS 4

JESUS,” because these words could reasonably be interpreted as

“promoting illegal drug use.” The Court indicated that it might 58

have reached a different result if the banner had addressed the

issue of “the criminalization of drug use or possession.” Justice 59

Alito, joined by Justice Kennedy, wrote a concurring opinion

stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public

school may restrict speech that a reasonable observer would

interpret as advocating illegal drug use and (b) it provides no

support for any restriction on speech that can plausibly be

interpreted as commenting on any political or social issue,

including speech on issues such as ‘the wisdom of the war on

drugs or of legalizing marijuana for medicinal use.’” As Morse v. 60

Frederick was a 5-to-4 decision, Justices Alito and Kennedy’s

votes were necessary for a majority and therefore should be read

as limiting the majority opinion with respect to future cases.

– Government as Regulator of the Electoral Process: Elections

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

change beginning of second paragraph as indicated:]

The Court in Buckley recognized that political contributions

“serve[ ] to affiliate a person with a candidate” and “enable[ ]

like-minded 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 . . . .” Yet “[e]ven a significant interference with protected 61

rights of political association may be sustained if the State

demonstrates a sufficiently important interest and employs
66 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 424 U.S. at 25 (internal quotation marks omitted). 62

 128 S. Ct. 2759, 2771, 2772 (2008). The statute was § 319(a) of the Bipartisan 63

Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 109, 2 U.S.C.

§ 441a-1(a), which was part of the so-called “Millionaire’s Amendment.”

 128 S. Ct. at 2773 (emphasis in original). Justice Stevens, in the part of his 6 4

dissenting opinion joined by Justices Souter, Ginsburg, and Breyer, found that the

Millionaire’s Amendment does not cause self-funding candidates “any First Amendment

injury whatsoever. The Millionaire’s Amendment quiets no speech at all. On the

contrary, it does no more than assist the opponent of a self-funding candidate in his

attempts to make his voice heard. . . . Enhancing the speech of the millionaire’s

opponent, far from contravening the First Amendment, actually advances its core

principles.” Id. at 2780.

means closely drawn to avoid unnecessary abridgment of associational freedoms.”62

Applying this standard, the Buckley Court sustained the

contribution limitation as imposing . . . .

[P. 1158, add to text after n.743:]

The government not only may not limit the amount that a

candidate may spend out of his own resources, but, if a candidate

spends more than a particular amount, the government may not

penalize the candidate by authorizing the candidate’s opponent to

receive individual contributions at higher than the normal limit.

In Davis v. Federal Election Commission, the Court struck down,

as lacking a compelling governmental interest, a federal statute

that provided that, if a “self-financing” candidate for the House of

Representatives spends more than a specified amount, then his

opponent may accept more individual contributions than otherwise permitted. The statute, the Court wrote, imposed “a special

and potentially significant burden” on a candidate “who robustly

exercises [his] First Amendment right.” Citing Buckley, the 63

Court stated that a burden “on the expenditure of personal funds

is not justified by any governmental interest in eliminating

corruption or the perception of corruption.” This is because

“reliance on personal funds reduces the threat of corruption, and

therefore . . . discouraging the use of personal funds [ ] disserves

the anticorruption interest.” Citing Buckley again, the Court 64

added that the governmental interest in equalizing the financial

resources of candidates does not provide a justification for

restricting expenditures, and, in fact, to restrict expenditures

“has ominous implications because it would permit Congress to

arrogate the voters’ authority to evaluate the strengths of candidates competing for office. . . . Different candidates have differ-
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 67

 128 S. Ct. at 2773-74. The Court also struck down the disclosure requirements in 65

§ 319(b) of BCRA because they “were designed to implement the asymmetrical contribution limits provided for in § 319(a), and . . . § 319(a) violates the First Amendment.” Id.

at 2775.

 539 U.S. 146 (2003). 66

 539 U.S. at 157. 67

 540 U.S. 93 (2003). 68

 540 U.S. at 133. 69

 540 U.S. at 123. 70

ent strengths. Some are wealthy; others have wealthy supporters

who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing

judgments about which strengths should be permitted to the

outcome of an election.”65

[P. 1162, add to text at end of section:]

In FEC v. Beaumont, the Court held that the federal law 66

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.” Though nonprofit 67

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, the Court 68

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,” which is money donated for the 69

purpose of influencing state or local elections, or for

“mixed-purpose activities – including get-out-the-vote drives and

generic party advertising,” and (2) the prohibition on corpora- 70

tions and labor unions’ using funds in their treasuries to finance
68 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 540 U.S. at 204. 71

 540 U.S. at 190. 72

 540 U.S. at 141. 73

 540 U.S. at 136 (internal quotation marks omitted). 74

 540 U.S. at 136. 75

 540 U.S. at 205. 76

 540 U.S. at 204. 77

“electioneering communications,” which BCRA defines as “any 71

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.”72

As for the soft-money prohibition on national party committees, the Court applied “the less rigorous scrutiny applicable to

contribution limits.” and found it “closely drawn to match a 73

sufficiently important interest.” The Court’s decision to use less 74

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.’”75

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.” These corrosive and distorting effects result 76

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. In response to the argument that 77

the justifications for a ban on express advocacy did not apply to

issue advocacy, the Court found that the “argument fails to the

extent that the issue ads broadcast during the 30- and 60-day
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 69

 540 U.S. at 206. 78

 546 U.S. 410 (2006). 79

 127 S. Ct. 2652 (2007). 80

 Only Justice Alito joined Parts III and IV of Chief Justice Robert’s opinion, which 81

addressed the issue of as-applied challenges to BCRA. Justices Scalia (joined by Kennedy

and Thomas) concurred in the judgment, but would have overturned McConnell and

struck down BCRA’s limits on issue advocacy on its face.

 The suggestion was made that an “intent and effect” standard had been endorsed 82

by the Court in McConnell, which stated that “[t]he justifications for the regulation of

express advocacy apply equally to ads aired during those periods if the ads are intended

to influence the voters’ decisions and have that effect.” 540 U.S. at 206. While acknowledging that an evaluation of the “intent and effect” had been relevant to the rejection of a

facial challenge, Chief Justice Robert’s opinion in WRTL II denied that such a standard

had been endorsed for as-applied challenges. 127 S. Ct. at 2664-66.

 127 S. Ct. at 2667. 83

 548 U.S. 230 (2006). Justice Breyer wrote the plurality opinion, with only Chief 84

Justice Roberts joining it in full. Justice Alito joined the opinion as to the contribution

limitations but not as to the expenditure limitations. Justice Alito and three other

Justices concurred in the judgment as to the limitations on both expenditures and

contributions, and three Justices dissented.

periods preceding federal primary and general elections are the

functional equivalent of express advocacy.”78

The limitations on electioneering communication, however,

soon faced renewed scrutiny by the Court. In Wisconsin Right to

Life, Inc. v. Federal Election Comm’n (WRTL I), the Court 79

vacated a lower court decision that had denied plaintiffs the

opportunity to bring an as-applied challenge to BCRA’s regulation

of electioneering communications. Subsequently, in Federal

Election Commission v. Wisconsin Right to Life (WRTL II), the 80

Court considered what standard should be used for such a

challenge. Chief Justice Roberts, in the controlling opinion,81

rejected the suggestion that an issue ad broadcast during the

specified periods before elections should be considered the

“functional equivalent” of express advocacy if the “intent and

effect” of the ad was to influence the voter’s decision in an election. Rather, Chief Justice Robert’s opinion held that an issue 82

ad is the functional equivalent of express advocacy only if the ad

is “susceptible of no reasonable interpretation other than as an

appeal to vote for or against a specific candidate.”83

In Randall v. Sorrell, a plurality of the Court struck down a

Vermont campaign finance statute’s limitations on both expenditures and contributions. As for the statute’s expenditure 84

limitations, the plurality found Buckley to control and saw no

reason to overrule it and no adequate basis upon which to distinguish it. As for the statute’s contribution limitations, the plural-
70 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 548 U.S. at 248 (citation omitted). 85

 Although, as here, limits on contributions may be so low as to violate the First 86

Amendment, “there is no constitutional basis for attacking contribution limits on the

ground that they are too high. Congress has no constitutional obligation to limit

contributions at all . . . .” Davis v. Federal Election Commission, 128 S. Ct. 2759, 2771

(2008) (dictum).

 548 U.S. at 249 (citation omitted). The plurality noted that, “in terms of real 87

dollars (i.e., adjusting for inflation),” they were lower still. Id. at 250.

 548 U.S. at 253. 88

ity, following Buckley, considered whether the “contribution

limits prevent candidates from ‘amassing the resources necessary

for effective [campaign] advocacy’; whether they magnify the

advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too

low and too strict to survive First Amendment scrutiny.” The 85

plurality found that they were. Vermont’s limit of $200 per 86

gubernatorial election “(with significantly lower limits for contributions to candidates for State Senate and House of Representatives) . . . are well below the limits this Court upheld in Buckley,”

and “are the lowest in the Nation.” But the plurality struck 87

down Vermont’s contribution limits “based not merely on the low

dollar amounts of the limits themselves, but also on the statute’s

effect on political parties and on volunteer activity in Vermont

elections.”88

– Government as Investigator: Reporter’s Privilege

[P. 1165, substitute for n.783:]

Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist joined the Court’s

opinion. Justice Powell, despite having joined the majority opinion, also submitted a

concurring opinion in which he suggested a privilege might be available if, in a particular

case, “the newsman is called upon to give information bearing only a remote and tenuous

relationship to the subject of the investigation, or if he has some other reason to believe

that his testimony implicates confidential source relationships without a legitimate need

of law enforcement.” 408 U.S. at 710. Justice Stewart’s dissenting opinion in Branzburg

referred to Justice Powell’s concurring opinion as “enigmatic.” Id. at 725. Judge Tatel of

the D.C. Circuit wrote, “Though providing the majority’s essential fifth vote, he [Powell]

wrote separately to outline a ‘case-by-case’ approach that fits uncomfortably, to say the

least, with the Branzburg majority’s categorical rejection of the reporters’ claims.” In re:

Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J.,

concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005)

(Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted

material, 438 F.3d 1141 (D.C. Cir. 2006).

“[C]ourts in almost every circuit around the country interpreted Justice Powell’s

concurrence, along with parts of the Court’s opinion, to create a balancing test when faced

with compulsory process for press testimony and documents outside the grand jury

context.” Association of the Bar of the City of New York, The Federal Common Law of

Journalists’ Privilege: A Position Paper (2005) at 4-5 [http://www.abcny.org/pdf /report/White%20paper%20on%20reporters%20privilege.pdf] (citing examples).
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 71

 408 U.S. at 706. 89

E.g., Cal. Evid. Code § 1070; N.J. Rev. Stat. §§ 2A:84A-21, -21a, -29. The reported 90

cases evince judicial hesitancy to give effect to these statutes. See, e.g., Farr v. Pitchess,

522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court,

51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976). The

greatest difficulty these laws experience, however, is the possibility of a constitutional

conflict with the Fifth and Sixth Amendment rights of criminal defendants. See Matter

of Farber, 78 N.J. 259, 394 A.2d 330, cert. denied sub nom. New York Times v. New

Jersey, 439 U.S. 997 (1978). See also, New York Times v. Jascalevich, 439 U.S. 1301,

1304, 1331 (1978) (applications to Circuit Justices for stay), and id. at 886 (vacating stay).

 Rule 501 also provides that, in civil actions and proceedings brought in federal 91

court under state law, the availability of a privilege shall be determined in accordance

with state law.

See, e.g., In re: Grand Jury Subpoena. Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 92

2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17

(D.C. Cir. 2005 (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with

unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the

District of Columbia “is not of one mind on the existence of a common law privilege”).

 482 U.S. at 89. 93

[P. 1165, substitute for paragraph in text that begins “The

Court”:]

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.89

Although efforts in Congress have failed, 49 states have done so –

33 (plus the District of Columbia) by statute and 16 by court

decision, with Wyoming the sole holdout. As for federal courts, 90

Federal Rule of Evidence 501 provides that “the privilege of a

witness . . . shall be governed by the principles of the common law

as they may be interpreted by the courts of the United States in

the light of reason and experience.” The federal courts have not 91

resolved whether the common law provides a journalists’ privilege.92

– 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.

[P. 1171: substitute in text for material between n.814 and n.817:]

Four factors “are relevant in determining the reasonableness of a

regulation at issue.” “First, is there a valid, rational connection 93

between the prison regulation and the legitimate governmental
72 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Beard v. Banks, 548 U.S. 521, 529 (2006) (citations and internal quotation marks 94

omitted; this quotation quotes language from Turner v. Safley, 482 U.S. at 89-90).

 490 U.S. 401, 411-14 (1989). Thornburgh v. Abbott noted that, if regulations deny 95

prisoners publications on the basis of their content, but the grounds on which the

regulations do so is content-neutral, e.g., to protect prison security), then the regulations

will be deemed neutral. Id. at 415-16.

 548 U.S. 521, 524-25 (2006). This was a 4-2-2 decision, with Justice Alito, who 96

had written the court of appeals decision, not participating.

 548 U.S. at 531. 97

 548 U.S. 531-32. 98

interest put forward to justify it? Second, are there alternative

means of exercising the right that remain open to prison inmates?

Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the

allocation of prison resources generally? And, fourth, are ready

alternatives for furthering the governmental interest available?”94

Two years after Turner v. Safley, in Thornburgh v. Abbott, the

Court restricted Procunier v. Martinez to the regulation of

outgoing correspondence, finding that the needs of prison security

justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are

correspondence from other prisoners, correspondence from

nonprisoners, or outside publications.95

In Beard v. Banks, a plurality of the Supreme Court upheld

“a Pennsylvania prison policy that ‘denies newspapers, magazines, and photographs’ to a group of specially dangerous and

recalcitrant inmates.” These inmates were housed in Pennsylva- 96

nia’s Long Term Segregation Unit and one of the prison’s penological rationales for its policy, which the plurality found to

satisfy the four Turner factors, was to motivate better behavior

on the part of the prisoners by providing them with an incentive

to move back to the regular prison population. Applying the 97

four Turner factors to this rationale, the plurality found that (1)

there was a logical connection between depriving inmates of

newspapers and magazines and providing an incentive to improve

behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was “not ‘conclusive’

of the reasonableness of the Policy”; (3) the impact of accommodating the asserted constitutional right would be negative; and

(4) no alternative would “fully accommodate the prisoner’s rights

at de minimis cost to valid penological interests.” The plurality 98

believed that its “real task in this case is not balancing these
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 73

 548 U.S. at 533. 99

 548 U.S. at 537 (Thomas, J., concurring), quoting Overton v. Bazzetta, 539 U.S. 100

at 139 (Thomas, J., concurring) (emphasis originally in Overton).

 539 U.S. 194, 199 (2003). 101

 539 U.S. at 211. 102

factors, but rather determining whether the Secretary shows

more than simply a logical relation, that is, whether he shows a

reasonable relation” between the Policy and legitimate penological objections, as Turner requires. The plurality concluded that 99

he had. Justices Thomas and Scalia concurred in the result but

would do away with Turner factors because they believe that

“States are free to define and redefine all types of punishment,

including imprisonment, to encompass various types of deprivation – provided only that those deprivations are consistent with

the Eighth Amendment.”100

– Government and Power of the Purse

[P. 1176, add to text at end of section:]

In United States v. American Library Association, Inc., a

four-Justice plurality of the Supreme Court upheld the Children’s

Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive

federal assistance to provide Internet access unless it installs

software to block images that constitute obscenity or child

pornography, and to prevent minors from obtaining access to

material that is harmful to them.” The plurality considered 101

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.” The plurality distin- 102

guished 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 condi-
74 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

539 U.S. at 213 (emphasis in original). Other grounds for the plurality decision 103

are discussed under “Non-obscene But Sexually Explicit and Indecent Expression” and

“Internet as Public Forum.”

 547 U.S. 47, 51 (2006). 104

 547 U.S. at 60. The Court stated that Congress’ authority to directly require 105

campus access for military recruiters comes from its Article I, section 8, powers to

provide for the common defense, to raise and support armies, and to provide and

maintain a navy. Id. at 58.

 547 U.S. at 60. 106

 547 U.S. at 64, 65. 107

 547 U.S. at 67. 108

tions that their benefactors might attach to the use of donated

funds or other assistance.”103

In Rumsfeld v. Forum for Academic and Institutional

Rights, Inc., the Supreme Court upheld the Solomon Amendment,

which provides that, in the Court’s summary, “if any part of an

institution of higher education denies military recruiters access

equal to that provided other recruiters, the entire institution

would lose certain federal funds.” FAIR, the group that chal- 104

lenged the Solomon Amendment, is an association of law schools

that barred military recruiting on their campuses because of the

military’s discrimination against homosexuals. FAIR challenged

the Solomon Amendment as violating the First Amendment

because it forced schools to choose between enforcing their

nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court concluded:

“Because the First Amendment would not prevent Congress from

directly imposing the Solomon Amendment’s access requirement,

the statute does not place an unconstitutional condition on the

receipt of federal funds.” The Court found that “[t]he Solomon 105

Amendment neither limits what law schools may say nor requires

them to say anything. . . . It affects what law schools must do –

afford equal access to military recruiters – not what they may or

may not say.” The law schools’ conduct in barring military 106

recruiters, the Court found, “is not inherently expressive,” and,

therefore, unlike flag burning, for example, is not “symbolic

speech.” Applying the O’Brien test for restrictions on conduct 107

that have an incidental effect on speech, the Court found that the

Solomon Amendment clearly “promotes a substantial government

interest that would be achieved less effectively absent the regulation.”108
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 75

 547 U.S. at 61, 62. 109

 547 U.S. at 63. 110

 547 U.S. at 65. 111

 547 U.S. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000). 112

 547 U.S. at 69. 113

 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 127 S. Ct. 114

2489, 2494-95 (2007).

The Court also found that the Solomon Amendment did not

unconstitutionally compel schools to speak, or even to host or

accommodate the government’s message. As for compelling

speech, law schools must “send e-mails and post notices on behalf

of the military to comply with the Solomon Amendment. . . . This

sort of recruiting assistance, however, is a far cry from the

compelled speech in Barnette and Wooley. . . . [It] is plainly

incidental to the Solomon Amendment’s regulation of conduct.”109

As for forcing one speaker to host or accommodate another, “[t]he

compelled-speech violation in each of our prior cases . . . resulted

from the fact that the complaining speaker’s own message was

affected by the speech it was forced to accommodate.” By 110

contrast, the Court wrote, “Nothing about recruiting suggests

that law schools agree with any speech by recruiters, and nothing

in the Solomon Amendment restricts what the law schools may

say about the military’s policies.” Finally, the Court found that 111

the Solomon Amendment was not analogous to the New Jersey

law that had required the Boy Scouts to accept a homosexual

scoutmaster, and that the Supreme Court struck down as violating the Boy Scouts’ “right of expressive association.” Recruit- 112

ers, unlike the scoutmaster, are “outsiders who come onto campus

for the limited purpose of trying to hire students – not to become

members of the school’s expressive association.”113

Government Regulation of Communications Industries

– Commercial Speech

[P. 1179, add to text after n.856:]

Similarly, the Court upheld a rule prohibiting high school

coaches from recruiting middle school athletes, finding that “the

dangers of undue influence and overreaching that exist when a

lawyer chases an ambulance are also present when a high school

coach contacts an eighth grader.”114
76 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 Edenfield v. Fane, 507 U.S. at 774, quoting In re R.M.J., 455 U.S. at 203, and 115

quoted in Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 127 S. Ct.

2489, 2494 (2007).

[P. 1179, add to text after n.858:]

A ban on personal solicitation is “justified only in situations

‘inherently conducive to overreaching and other forms of misconduct.’”115

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

In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. dismissed, 539 U.S. 654 (2003), Nike

was sued for unfair and deceptive practices for allegedly false statements it made

concerning the working conditions under which its products were manufactured. The

California Supreme Court ruled that the suit could proceed, and the Supreme Court

granted certiorari, 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.

– Radio and Television

[P. 1192, delete final sentence in text and add new footnote at the

end of what will become the final sentence in the text:]

438 U.S. at 750. Subsequently, the FCC began to apply its indecency standard to fleeting

uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals

for the Second Circuit held, however, that, because “the FCC has failed to articulate a

reasoned basis for this change in policy,” the policy was arbitrary and capricious under the

Administrative Procedure Act. Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 447 (2d

Cir. 2007), cert. granted, 128 S. Ct. 1647 (2008). Having decided the case on statutory

grounds, the court did not have to reach the constitutional question, but it added that it

was “skeptical that the Commission can provide a reasonable explanation for its ‘fleeting

expletive’ regime that would pass constitutional muster.” Id. at 462. See also CBS Corp.

v. FCC, 535 F.3d 167 (3d Cir. 2008) (invalidating, on non-constitutional grounds, a fine

against CBS for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenths of

a second during a Super Bowl halftime show). Decisions regarding legislation to ban

“indecent” expression in contexts other than broadcast and cable media are discussed

below under “Non-obscene But Sexually Explicit and Indecent Expression.”

Government Restraint of Content of Expression

– Group Libel, Hate Speech

[P. 1206, add to text 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
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 77

 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, 116

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.

 538 U.S. at 362-63. 117

 128 S. Ct. 1830 (2008). 118

 18 U.S.C. § 2252A(a)(3)(B). 119

 128 S. Ct. at 1839. 120

group of persons. Such a prohibition does not discriminate on 116

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. . . .”117

– Child Pornography

[P. 1231, substitute for n.1142:]

535 U.S. at 255. Following Ashcroft v. Free Speech Coalition, Congress enacted the

PROTECT Act, Pub. L. 108-21, 117 Stat. 650 (2003), which, despite the decision in that

case, continued to prohibit computer-generated child pornography (but not other types of

child pornography produced without an actual minor). 18 U.S.C. § 2256(8). In United

States v. Williams, 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the

PROTECT Act’s new definition, cited Ashcroft v. Free Speech Coalition with approval.

[P. 1231, add to text after n.1142:]

In United States v. Williams, the Supreme Court upheld a 118

federal statute that prohibits knowingly advertising, promoting,

presenting, distributing, or soliciting material “in a manner that

reflects the belief, or that is intended to cause another to believe,

that the material” is child pornography that is obscene or that

depicts an actual minor (i.e., is child pornography that is not

constitutionally protected). Under the provision, in other 119

words, “an Internet user who solicits child pornography from an

undercover agent violates the statute, even if the officer possesses

no child pornography. Likewise, a person who advertises virtual

child pornography as depicting actual children also falls within

the reach of the statute.” The Court found that these activities 120

are not constitutionally protected because “[o]ffers to engage in

illegal transactions [as opposed to abstract advocacy of illegality]

are categorically excluded from First Amendment protection,”

even “when the offeror is mistaken about the factual predicate of
78 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 128 S. Ct. at 1841, 1842, 1843. Justice Souter, in a dissenting opinion joined by 121

Justice Ginsburg, agreed that “Congress may criminalize proposals unrelated to any

extant image,” but disagreed with respect to “proposals made with regard to specific,

existing [constitutionally protected] representations.” Id. at 1849. Justice Souter

believed that, “if the Act stands when applied to identifiable, extant [constitutionally

protected] pornographic photographs, then in practical terms Ferber and Free Speech

Coalition fall. They are left as empty as if the Court overruled them formally . . . .” Id. at

1854. Justice Scalia’s opinion for the majority replied that this “is simply not true . . . .

Simulated child pornography will be as available as ever, so long as it is offered and

sought as such, and not as real child pornography. . . . There is no First Amendment

exception from the general principle of criminal law that a person attempting to commit a

crime need not be exonerated because he has a mistaken view of the facts.” Id. at 1844-

45.

 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote 122

that blocking and filtering software is not a less restrictive alternative because “it is part

of the status quo” and “[i]t is always less restrictive to do nothing than to do something.”

Id. at 684. In addition, Breyer asserted, “filtering software depends upon parents willing

to decide where their children will surf the Web and able to enforce that decision.” Id.

The majority opinion countered that Congress “may act to encourage the use of filters,”

and “[t]he need for parental cooperation does not automatically disqualify a proposed less

restrictive alternative.” Id. at 669.

 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007). 123

his offer,” such as when the child pornography that one offers to

buy or sell does not exist or is constitutionally protected.121

– Non-obscene but Sexually Explicit and Indecent Expression

[P. 1234. add to text after n.1254:]

Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded

the case for trial. The Supreme Court found that the district

court had not abused its discretion in granting the preliminary

injunction, because the government had failed to show that

proposed alternatives to COPA would not be as effective in

accomplishing its goal. The primary alternative to COPA, the

Court noted, is blocking and filtering software. Filters are less

restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at

the source.” Subsequently, the district court found COPA to 122

violate the First Amendment and issued a permanent injunction

against its enforcement.123

In United States v. American Library Association, a fourJustice plurality of the Supreme Court upheld the Children’s

Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive

federal assistance to provide Internet access unless it installs

software to block images that constitute obscenity or child
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 79

 539 U.S. 194, 199 (2003). 124

 539 U.S. at 203. 125

 539 U.S. at 205. 126

 539 U.S. at 208. 127

 539 U.S. at 209. Justice Kennedy, concurring, noted that, “[i]f some libraries do 128

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.

 539 U.S. at 212. 129

pornography, and to prevent minors from obtaining access to

material that is harmful to them.” The plurality asked 124

“whether libraries would violate the First Amendment by employing the filtering software that CIPA requires.” Does CIPA, in 125

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.126

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.” It found, however, that, 127

“[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.”128

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.”129
80 AMENDMENT 1–RELIGION, FREE SPEECH, ETC.

 539 U.S. 194, 205 (2003). 130

 539 U.S. at 199. 131

 539 U.S. at 206. 132

 539 U.S. at 206 (citation omitted). 133

Speech Plus – The Constitutional Law of Leafleting, Picketing,

and Demonstrating

– The Public Forum

[P. 1245, substitute for final paragraph of section:]

In United States v. American Library Association, Inc., a

four-Justice plurality of the Supreme Court found that “Internet

access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum.” The plurality therefore did not apply 130

“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.”131

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.’” And Internet access at public libraries is not a 132

“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.”133

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
AMENDMENT 1–RELIGION, FREE SPEECH, ETC. 81

 A federal court of appeals wrote: “Aspects of cyberspace may, in fact, fit into the 134

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). In Putnam Pit, the city denied a private Web site’s request that the city’s Web

site establish a hyperlink to it, even though the city’s Web site had established

hyperlinks to other private Web sites. The court of appeals found that the city’s Web site

was a nonpublic forum, but that even nonpublic fora must be viewpoint neutral, so it

remanded the case for trial on the question of whether the city’s denial of a hyperlink had

discriminated on the basis of viewpoint.

noted that the Internet “constitutes a vast platform from which to

address and hear from a worldwide audience of millions of

readers, viewers, researchers, and buyers. Any person or organi

zation with a computer connected to the Internet can ‘publish’

information.”134

– 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.

 E. Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. REV. 793 (1998); R. 1

Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized

Militia?, 83 TEX. L. REV. 237 (2004); E. Volokh, “Necessary to the Security of a Free State,”

83 NOTRE DAME L. REV. 1 (2007); What Did “Bear Arms” Mean in the Second Amendment?,6GEORGETOWN J. L. & PUB. POLICY (2008).

 128 S. Ct. 2783 (2008). 2

 The “right of the people,” for instance, was found in other places in the Constitu- 3

tion to speak to individual rights, not to collective rights (those that can only be exercised

by participation in a corporate body). 128 S. Ct. at 2790-91.

 128 S. Ct. at 2791-97. 4

 128 S. Ct. at 2799-2800. Similarly, the phrase “security of a free state” was found 5

to refer not to the defense of a particular state, but to the protection of the national

polity. 128 S. Ct. at 2800-01.

83

SECOND AMENDMENT

BEARING ARMS

In General

[P. 1275, add at the end of the section:]

It was not until 2008 that the Supreme Court definitively

came down on the side of an “individual rights” theory. Relying

on new scholarship regarding the origins of the Amendment, the 1

Court in District of Columbia v. Heller confirmed what had been 2

a growing consensus of legal scholars – that the rights of the

Second Amendment adhered to individuals. The Court reached

this conclusion after a textual analysis of the Amendment, an 3

examination of the historical use of prefatory phrases in statutes,

and a detailed exploration of the 18th century meaning of phrases

found in the Amendment. Although accepting that the historical

and contemporaneous use of the phrase “keep and bear Arms”

often arose in connection with military activities, the Court noted

that its use was not limited to those contexts. Further, the 4

Court found that the phrase “well regulated Militia” referred not

to formally organized state or federal militias, but to the pool of

“able-bodied men” who were available for conscription. Finally, 5

the Court reviewed contemporaneous state constitutions,

post-enactment commentary, and subsequent case law to conclude that the purpose of the right to keep and bear arms extended beyond the context of militia service to include

self-defense.
84 AMENDMENT 2–BEARING ARMS

 128 S. Ct. at 2818. 6

128 S. Ct. at 2817 n.27 (discussing non-application of rational basis review). See 7

id. at 2850-51 (Breyer, J., dissenting).

Using this “individual rights theory,” the Court struck down

a District of Columbia law that banned virtually all handguns,

and required that any other type of firearm in a home be dissembled or bound by a trigger lock at all times. The Court rejected

the argument that handguns could be banned as long as other

guns (such as long-guns) were available, noting that, for a variety

of reasons, handguns are the “most popular weapon chosen by

Americans for self-defense in the home.” Similarly, the require- 6

ment that all firearms be rendered inoperable at all times was

found to limit the “core lawful purpose of self-defense.” However,

the Court specifically stated (albeit in dicta) that the Second

Amendment did not limit prohibitions on the possession of

firearms by felons and the mentally ill, penalties for carrying

firearms in schools and government buildings, or laws regulating

the sales of guns. The Court also noted that there was a historical tradition of prohibiting the carrying of “dangerous and

unusual weapons” that would not be affected by its decision. The

Court, however, declined to establish the standard by which

future gun regulations would be evaluated. And, more impor- 7

tantly, because the District of Columbia is a federal enclave, the

Court did not have occasion to address whether it would reconsider its prior decisions that the Second Amendment does not

apply to the states.
85

FOURTH AMENDMENT

SEARCH AND SEIZURE

History and Scope of the Amendment

– Scope of the Amendment

[P. 1285, add to n.22:]

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (warrantless entry into a home when

police have an objectively reasonable basis for believing that an occupant is seriously

injured or imminently threatened with such injury).

– The Interest Protected

[P. 1291, add to n.53 after citation to Steagald v. United States:]

Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam).

– Arrests and Other Detentions

[P. 1292, add to n.61 after citation to Terry v. Ohio:]

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

[P. 1293, add to n.61:]

Scott v. Harris, 127 S. Ct. 1769 (2007) (police officer’s ramming fleeing motorist’s car from

behind in attempt to stop him).

[P. 1293, add new footnote after “person,” in second line on page:]

The justification must be made to a neutral magistrate, not to the arrestee. There is no

constitutional requirement that an officer inform an arrestee of the reason for his arrest.

Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense for which there is probable

cause to arrest need not be closely related to the offense stated by the officer at the time of

arrest).

[P. 1293, add to n.62:]

Los Angeles County v. Rettele, 127 S. Ct. 1989 (2007) (where deputies executing a search

warrant did not know that the house being searched had recently been sold, it was

reasonable to hold new homeowners, who had been sleeping in the nude, at gunpoint for

one to two minutes without allowing them to dress or cover themselves, even though the

deputies knew that the homeowners were of a different race from the suspects named in

the warrant).

[P. 1293, add to text at the end of the only full paragraph on the

page:]

Even when an arrest for a minor offense is prohibited by state

law, the arrest will not violate the Fourth Amendment if it was
86 AMENDMENT 4–SEARCHES AND SEIZURES

 Virginia v. Moore, 128 S. Ct. 1598 (2008). 1

 Groh v. Ramirez, 540 U.S. 551 (2004) (a search based on a warrant that did not 2

describe the items to be seized was “plainly invalid”; particularity contained in supporting documents not cross-referenced by the warrant and not accompanying the warrant is

insufficient). United States v. Grubbs, 547 U.S. 90, 97, 99 (2006) (because the language

of the Fourth Amendment “specifies only two matters that must be ‘particularly

describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or things to be

seized[,]’ . . . the Fourth Amendment does not require that the triggering condition for an

anticipatory warrant be set forth in the warrant itself.”

 United States v. Banks, 540 U.S. 31 (2003) (forced entry was permissible after 3

officers executing a warrant to search for drugs knocked, announced “police search

(continued...)

based on probable cause.1

[P. 1294, add to n.69 after citation to Taylor v. Alabama:]

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

Searches and Seizures Pursuant to Warrant

– Probable Cause

[P. 1301, add to n.101:]

An “anticipatory” warrant does not violate the Fourth Amendment as long as there is

probable cause to believe that the condition precedent to execution of the search warrant

will occur and that, once it has occurred, “there is a fair probability that contraband or

evidence of a crime will be found in a specified place.” United States v. Grubbs, 547 U.S.

90, 95 (2006), quoting Illinois v. Gates, 462 U.S. 213, 238 (1983). “An anticipatory warrant

is ‘a warrant based upon an affidavit showing probable cause that at some future time

(but not presently) certain evidence of a crime will be located at a specified place.’” 547

U.S. at 94.

– Particularity

[P. 1304, add to text at end of section:]

The purpose of the particularity requirement extends beyond

prevention of general searches; it also assures the person whose

property is being searched of the lawful authority of the executing

officer and of the limits of his power to search. It follows, therefore, that the warrant itself must describe with particularity the

items to be seized, or that such itemization must appear in

documents incorporated by reference in the warrant and actually

shown to the person whose property is to be searched.2

– Execution of Warrants

[P. 1311, add to text after n.168:]

Similarly, if officers choose to knock and announce before searching for drugs, circumstances may justify forced entry if there is

not a prompt response.3
AMENDMENT 4–SEARCHES AND SEIZURES 87

 (...continued) 3

warrant,” and waited 15-20 seconds with no response).

 Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (also upholding questioning the 4

handcuffed detainee about her immigration status).

 Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). 5

 542 U.S. at 186. 6

[P. 1312, add to n.173:]

But see Maryland v. Pringle, 540 U.S. 366 (2003) (distinguishing Ybarra on basis that

passengers in car often have “common enterprise,” and noting that the tip in Di Re

implicated only the driver).

[P. 1312, add to n.175:]

In Los Angeles County v. Rettele, 127 S. Ct. 1989 (2007), the Court found no Fourth

Amendment violation where deputies did not know that the suspects had sold the house

that deputies had a warrant to search; deputies entered the house and found new owners,

of a different race from the suspects, sleeping in the nude; and deputies held new owners

at gunpoint for one to two minutes without allowing them to dress or cover themselves. As

for the difference in race, the Court noted that, “[w]hen the deputies ordered [Caucasian]

respondents from their bed, they had no way of knowing whether the African-American

suspects were elsewhere in the house.” Id. at 1992. As for not allowing the new owners to

dress or cover themselves, the Court quoted its statement in Michigan v. Summers that

“[t]he risk of harm to both the police and the occupants is minimized if the officers

routinely exercise unquestioned command of the situation.” Id. at 1993 (quoting 452 U.S.

at 702-03).

[P. 1312, add to text after n.175:]

For the same reasons, officers may use “reasonable force,”

including handcuffs, to effectuate a detention.4

Valid Searches and Seizures Without Warrants

– Detention Short of Arrest: Stop-and-Frisk

[P. 1315, add to text after first sentence of paragraph that begins

on page, and begin new paragraph with second sentence, as

indicated:]

The Court provided a partial answer in 2004, when it upheld a

state law that required a suspect to disclose his name in the

course of a valid Terry stop. Questions about a suspect’s identity 5

“are a routine and accepted part of many Terry stops,” the Court

explained.6

After Terry, the standard for stops . . . .

[P. 1318, add to n.208:]

See also United States v. Drayton, 536 U.S. 194 (2002), applying Bostick to uphold a bus

search in which one officer stationed himself in the front of the bus and one in the rear,

while a third officer worked his way from rear to front, questioning passengers individually. Under these circumstances, and following the arrest of his traveling companion, the
88 AMENDMENT 4–SEARCHES AND SEIZURES

 Virginia v. Moore, 128 S. Ct. 1598 (2008) (holding that, where an arrest for a 7

minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause).

 Brendlin v. California, 127 S. Ct. 2400, 2410 (2007). 8

defendant had consented to the search of his person.

[P. 1319, add to n.213:]

Cf. Illinois v. Caballes, 543 U.S. 405 (2005) (a canine sniff around the perimeter of a car

following a routine traffic stop does not offend the Fourth Amendment if the duration of

the stop is justified by the traffic offense).

[P. 1319, add to text after n.216:]

The Court has even upheld a search incident to an illegal (albeit

not unconstitutional) arrest.7

– Vehicular Searches

[P. 1324, add to n.244 after parenthetical that ends with “Mexican

ancestry”:]

But cf. United States v. Arvizu, 534 U.S. 266 (2002) (reasonable suspicion justified stop by

border agents of vehicle traveling on unpaved backroads in an apparent effort to evade a

border patrol checkpoint on the highway).

[P. 1324, add to text after n.245:]

If police stop a vehicle, then the vehicle’s passengers as well as its

driver are deemed to have been seized from the moment the car

comes to a halt, and the passengers as well as the driver may

challenge the constitutionality of the stop.8

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

See also United States v. Flores-Montano, 541 U.S. 149 (2004) (upholding a search at the

border involving disassembly of a vehicle’s fuel tank).

[P. 1325, add to n.248:]

Edmond was distinguished in Illinois v. Lidster, 540 U.S. 419 (2004), upholding use of a

checkpoint to ask motorists for help in solving a recent hit-and-run accident that had

resulted in death. The public interest in solving the crime was deemed “grave,” while the

interference with personal liberty was deemed minimal.

[P. 1325, add to n.250:]

And, because there also is no legitimate privacy interest in possessing contraband, and

because properly conducted canine sniffs are “generally likely, to reveal only the presence

of contraband,” police may conduct a canine sniff around the perimeter of a vehicle

stopped for a traffic offense. Illinois v. Caballes, 543 U.S. 405, 409 (2005).

[P. 1325, add to n.252 after citation to New York v. Belton:]

Thornton v. United States, 541 U.S. 615 (2004) (the Belton rule applies regardless of

whether the arrestee exited the car at the officer’s direction, or whether he did so prior to

confrontation);
AMENDMENT 4–SEARCHES AND SEIZURES 89

 Maryland v. Pringle, 540 U.S. 366 (2003) (probable cause to arrest passengers 9

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).

 Georgia v. Randolph, 547 U.S. 103 (2006) (warrantless search of a defendant’s 10

residence based on his estranged wife’s consent was unreasonable and invalid as applied

to a physically present defendant who expressly refused to permit entry). The Court in

Randolph admitted that it was “drawing a fine line,” id. at 121, between situations where

the defendant is present and expressly refuses consent, and that of United States v.

Matlock, 415 U.S. 164, 171 (1974), and Illinois v. Rodriguez, 497 U.S. 177 (1990), where

the defendants were nearby but were not asked for their permission. In a dissenting

opinion, Chief Justice Roberts observed that the majority’s ruling “provides protection on

a random and happenstance basis, protecting, for example, a co-occupant who happens to

be at the front door when the other occupant consents to a search, but not one napping or

watching television in the next room.” Id. at 127.

 United States v. Knights, 534 U.S. 112 (2005) (probationary status informs both 1 1

sides of the reasonableness balance).

[P. 1326, add to end of sentence in text containing n.258:]

, or unless there is individualized suspicion of criminal activity by

the passengers.9

– Consent Searches

[P. 1328, add to n. 271:]

United States v. Drayton, 536 U.S. 194, 207 (2002) (totality of circumstances indicated

that bus passenger consented to search even though officer did not explicitly state that

passenger was free to refuse permission).

[P. 1329, add to text at end of section:]

If, however, one occupant consents to a search of shared premises, but a physically present co-occupant expressly objects to

the search, the search is unreasonable.10

– Border Searches

[P. 1330, add to n.283 after citation to United States v. Cortez:]

, and United States v. Arvizu, 534 U.S. 266 (2002)

– Prisons and Regulation of Probation

[P. 1333, change heading to “Prisons and Regulation of Probation

and Parole”]

[P. 1334, add to text at end of section:]

A warrant is also not required if the purpose of a search of a

probationer is investigate a crime rather than to supervise

probation.11

“[O]n the ‘continuum’ of state-imposed punishments . . . ,
90 AMENDMENT 4–SEARCHES AND SEIZURES

 Samson v. California, 547 U.S. 843, 850 (2006) (internal quotation marks 12

altered).

 547 U.S. at 852. The parole condition at issue in Samson required prisoners to 13

“agree in writing to be subject to a search or seizure by a parole officer or other peace

officer at any time of the day or night, with or without a search warrant and with or

without cause.” Id. at 846, quoting Cal. Penal Code Ann. § 3067(a).

 536 U.S. 822 (2002). 14

 536 U.S. at 831. 15

 536 U.S. at 831. 16

 536 U.S. at 836. 17

 Drug testing was said to be a “reasonable” means of protecting the school board’s 18

“important interest in preventing and deterring drug use among its students,” and the

decision in Vernonia was said to depend “primarily upon the school’s custodial responsibility and authority.” 536 U.S. at 838, 831.

parolees have [even] fewer expectations of privacy than probationers, because parole is more akin to imprisonment than

probation is to imprisonment.” The Fourth Amendment, 12

therefore, is not violated by a warrantless search of a parolee that

is predicated upon a parole condition to which a prisoner agreed

to observe during the balance of his sentence.13

– Drug Testing

[P. 1336, add to text after n.322:]

Seven years later, the Court in Board of Education v. Earls14

extended Vernonia to uphold a school system’s drug testing of all

junior high and high school students who participated in extracurricular activities. The lowered expectation of privacy that

athletes have “was not essential” to the decision in Vernonia,

Justice Thomas wrote for a 5-4 Court majority. Rather, that 15

decision “depended primarily upon the school’s custodial responsibility and authority.” Another distinction was that, although 16

there was some evidence of drug use among the district’s students, there was no evidence of a significant problem, as there

had been in Vernonia. Rather, the Court referred to “the nationwide epidemic of drug use,” and stated that there is no “threshold

level” of drug use that need be present. Because the students 17

subjected to testing in Earls had the choice of not participating in

extra-curricular activities rather than submitting to drug testing,

the case stops short of holding that public school authorities may

test all junior and senior high school students for drugs. Thus,

although the Court’s rationale seems broad enough to permit

across-the-board testing, Justice Breyer’s concurrence, empha- 18

sizing among other points that “the testing program avoids
AMENDMENT 4–SEARCHES AND SEIZURES 91

 Concurring Justice Breyer pointed out that the testing program “preserves an 1 9

option for a conscientious objector,” who can pay a price of nonparticipation that is

“serious, but less severe than expulsion.” 536 U.S. at 841. Dissenting Justice Ginsburg

pointed out that extracurricular activities are “part of the school’s educational program”

even though they are in a sense “voluntary.” “Voluntary participation in athletics has a

distinctly different dimension” because it “expose[s] students to physical risks that

schools have a duty to mitigate.” Id. at 845, 846.

 536 U.S. at 831-32. The best the Court could do to support this statement was to 20

assert that “some of these clubs and activities require occasional off-campus travel and

communal undress,” to point out that all extracurricular activities “have their own rules

and requirements,” and to quote from general language in Vernonia. Id. Dissenting

Justice Ginsburg pointed out that these situations requiring a change of clothes on

occasional out-of-town trips are “hardly equivalent to the routine communal undress

associated with athletics.” Id. at 848.

 The “knock and announce” requirement is codified at 18 U.S.C. § 3109, and the 21

Court has held that the rule is also part of the Fourth Amendment reasonableness

inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995).

 Hudson v. Michigan, 547 U.S. 586 (2006). Writing for the majority, Justice Scalia 22

explained that the exclusionary rule was inappropriate because the purpose of the

knock-and-announce requirement was to protect human life, property, and the homeowner’s privacy and dignity; the requirement has never protected an individual’s interest

in preventing seizure of evidence described in a warrant. Id. at 594. Furthermore, the

Court believed that the “substantial social costs” of applying the exclusionary rule would

(continued...)

subjecting the entire school to testing,” raises some doubt on 19

this score. The Court also left another basis for limiting the

ruling’s sweep by asserting that “regulation of extracurricular

activities further diminishes the expectation of privacy among

schoolchildren.”20

Enforcing the Fourth Amendment: The Exclusionary Rule

– Alternatives to the Exclusionary Rule

[P. 1344, add to the end of n.356, before the period:]

(cited with approval in Scott v. Harris, 127 S. Ct. 1769, 1776 (2007), in which a police

officer’s ramming a fleeing motorist’s car from behind in an attempt to stop him was found

reasonable)

[P. 1344, add to n.361 after citation to Saucier v. Katz:]

See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a “hazy

border between excessive and acceptable force,” an officer’s misunderstanding as to her

authority to shoot a suspect attempting to flee in a vehicle was not unreasonable).

– Narrowing Application of the Exclusionary Rule

[P. 1354, add to text after n.409:]

In addition, a violation of the “knock-and-announce” procedure

that police officers must follow to announce their presence before

entering a residence with a lawful warrant does not require 21

suppression of the evidence gathered pursuant to the warrant.22
92 AMENDMENT 4–SEARCHES AND SEIZURES

 (...continued) 22

outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The

Court also reasoned that other means of deterrence, such as civil remedies, were

available and effective, and that police forces have become increasingly professional and

respectful of constitutional rights in the past half-century. Id. at 599. Justice Kennedy

wrote a concurring opinion emphasizing that “the continued operation of the exclusionary

rule . . . is not in doubt.” Id. at 603. In dissent, Justice Breyer asserted that the

majority’s decision “weakens, perhaps destroys, much of the practical value of the

Constitution’s knock-and-announce protection.” Id. at 605.
 United States v. Lara, 541 U.S. 193 (2004) (federal prosecution for assaulting a 1

federal officer after tribal conviction for “violence to a policeman”). The Court concluded

that Congress has power to recognize tribal sovereignty to prosecute non-member

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.

 United States v. Martin Linen Supply Co., 430 U.S. 564, 570-72 (1977); Sanabria 2

v. United States, 437 U.S. 54, 63-65 (1978); Finch v. United States, 433 U.S. 676 (1977).

 In Fong Foo v. United States, 369 U.S. 141 (1962), the Court acknowledged that 3

the trial judge’s action in acquitting was “based upon an egregiously erroneous foundation,” but it was nonetheless final and could not be reviewed. Id. at 143.

93

FIFTH AMENDMENT

DOUBLE JEOPARDY

Development and Scope

[P. 1370, delete period in text before n.58 and add:]

, and to permit a federal prosecution after a conviction in an

Indian tribal court for an offense stemming from the same

conduct.1

Reprosecution Following Conviction

– Sentence Increases

[P. 1385, add to n.134:]

But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) (state may seek the death penalty

in a retrial when defendant appealed following discharge of the sentencing jury under a

statute authorizing discharge based on the court’s “opinion that further deliberation

would not result in a unanimous agreement as to the sentence, in which case the court

shall sentence the defendant to life imprisonment”).

Reprosecution Following Acquittal

– Acquittal by the Trial Judge

[P. 1379, substitute for first paragraph of section:]

When a trial judge acquits a defendant, that action concludes the matter to the same extent that acquittal by jury

verdict does. There is no possibility of retrial for the same 2

offense. But it may be difficult at times to determine whether 3

the trial judge’s action was in fact an acquittal or whether it was

a dismissal or some other action, which the prosecution may be
94 AMENDMENT 5–RIGHTS OF PERSONS

 As a general rule a state may prescribe that a judge’s midtrial determination of 4

the sufficiency of the prosecution’s proof may be reconsidered. Smith v. Massachusetts,

543 U.S. 462 (2005) (Massachusetts had not done so, however, so the judge’s midtrial

acquittal on one of three counts became final for double jeopardy purposes when the

prosecution rested its case).

 United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). 5

 430 U.S. at 570-76. See also United States v. Scott, 437 U.S. 82, 87-92 (1978); 6

Smalis v. Pennsylvania, 476 U.S. 140 (1986) (demurrer sustained on basis of insufficiency

of evidence is acquittal).

 437 U.S. 54 (1978). 7

See also Smith v. Massachusetts, 543 U.S. 462 (2005) (acquittal based on 8

erroneous interpretation of precedent).

 Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought by 9

suspect interrogated in hospital but not prosecuted).

able to appeal or the judge may be able to reconsider. The 4

question is “whether the ruling of the judge, whatever its label,

actually represents a resolution, correct or not, of some or all of

the factual elements of the offense charged.” Thus, an appeal by 5

the government was held barred in a case in which the deadlocked jury had been discharged, and the trial judge had granted

the defendant’s motion for a judgment of acquittal under the

appropriate federal rule, explicitly based on the judgment that

the government had not proved facts constituting the offense.6

Even if, as happened in Sanabria v. United States, the trial 7

judge erroneously excludes evidence and then acquits on the basis

that the remaining evidence is insufficient to convict, the judgment of acquittal produced thereby is final and unreviewable.8

SELF-INCRIMINATION

Development and Scope

[P. 1396, change period in text before n.185 to comma and add in

text after n.185:]

, and there can be no valid claim if there is no criminal prosecution.9

[P. 1399, add to n.203:]

See also Fry v. Pliler, 127 S. Ct. 2321, 2324 (2007) (the “substantial and injurious effect

standard” is to be applied in federal habeas proceedings even “when the state appellate

court failed to recognize the error and did not review it for harmlessness under the

‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California”).
AMENDMENT 5–RIGHTS OF PERSONS 95

 United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, 10

described as a “nontestimonial fruit” of an unwarned statement). See also Michigan v.

Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant’s

statement elicited without proper Miranda warning). Note too that confessions may be

the poisonous fruit of other constitutional violations, such as illegal searches or arrests.

E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979);

Taylor v. Alabama, 457 U.S. 687 (1982).

See discussion under Art. I, § 8, cl. 4, “The Power of Congress to Exclude Aliens.” 11

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

– Miranda v. Arizona

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

Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court determination that teenager

brought to police station by his parents was not “in custody” was not “unreasonable” for

purposes of federal habeas review).

[P. 1429, add to n.363:]

Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600 (2004), however, when the

failure to warn prior to the initial questioning was a deliberate attempt to circumvent

Miranda by use of a two-step interrogation technique, and the police, prior to eliciting the

statement for the second time, did not alert the suspect that the first statement was

likely inadmissible.

[P. 1429, add to n.365:]

See also Harrison v. United States, 392 U.S. 219 (1968) (rejecting as tainted the prosecution’s use at the second trial of defendant’s testimony at his first trial rebutting confessions obtained in violation of McNabb-Mallory).

[P. 1429, substitute for clause in text containing n.367:]

On the other hand, the “fruits” of such an unwarned confession or

admission may be used in some circumstances if the statement

was voluntary.10

DUE PROCESS

Procedural Due Process

– Aliens: Entry and Deportation

[P. 1443, add as first sentence of section:]

The Court has frequently said that Congress exercises “sovereign”

or “plenary” power over the substance of immigration law, and

this power is at its greatest when it comes to exclusion of aliens.11
96 AMENDMENT 5–RIGHTS OF PERSONS

538 U.S. 510 (2003). The goal of detention in Zadvydas had been found to be “no 12

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.

 538 U.S. at 528. There was disagreement among the Justices as to whether 13

existing procedures afforded the alien an opportunity for individualized determination of

danger to society and risk of flight.

 542 U.S. 507 (2004). 14

 In response to the September 11, 2001, terrorist attacks on New York City’s 15

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.

 There was no opinion of the Court in Hamdi. Rather, a plurality opinion, 16

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

(continued...)

[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 after n.444:]

In Demore v. Kim, however, the Court indicated that its holding 12

in Zadvydas was quite limited. Upholding detention of permanent resident aliens without bond pending a determination of

removability, the Court reaffirmed Congress’ broad powers over

aliens. “[W]hen the Government deals with deportable aliens, the

Due Process Clause does not require it to employ the least

burdensome means to accomplish its goal.”13

– Judicial Review of Administrative or Military Proceedings

[P. 1446, add to text 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. During a military action in Afghanistan, 14 15

a United States citizen, Yaser Hamdi, was taken prisoner. The

Executive Branch argued that it had authority to detain Hamdi

as an “enemy combatant,” and to deny him meaningful access to

the federal courts. The Court agreed that the President was

authorized to detain a United States citizen seized in Afghanistan. However, the Court ruled that the Government may not 16
AMENDMENT 5–RIGHTS OF PERSONS 97

 (...continued) 16

power to detain the petitioner, but he based his conclusion on Article II of the Constitution.

 542 U.S. 533, 539 (2004). Although only a plurality of the Court voted for both 17

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 Ginsburg, while rejecting the argument that Congress had authorized such

detention, agreed with the plurality as to the requirement of providing minimal due

process. Id. at 553 (concurring in part, dissenting in part, and concurring in judgement).

Justice Scalia, joined by Justice Stevens, denied that such congressional authorization

was possible without a suspension of the writ of habeas corpus, and thus would have

required a criminal prosecution of the petitioner. Id. at 554 (dissenting).

 Brown v. Legal Found. of Washington, 538 U.S. 216, 232 (2003). But see id. at 18

242 n.2 (Justice Scalia dissenting).

 545 U.S. 469 (2005). 19

detain the petitioner indefinitely for purposes of interrogation,

but must give him the opportunity to offer evidence that he is not

an enemy combatant. At a minimum, the petitioner must be

given notice of the asserted factual basis for holding him, must be

given a fair chance to rebut that evidence before a neutral

decision maker, and must be allowed to consult an attorney.17

NATIONAL EMINENT DOMAIN POWER

Public Use

[P. 1464, add new footnote on line 3 after “determination.”:]

Kelo v. City of New London, 545 U.S. 469, 482 (2005). The taking need only be “rationally

related to a conceivable public purpose.” Id. at 490 (Justice Kennedy concurring).

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

Subsequently, the Court put forward an added indicium of “public

use”: whether the government purpose could be validly achieved

by tax or user fee.18

[P. 1466, add new footnote at end of sentence beginning “For

‘public use’”:]

Most recently, the Court equated public use with “public purpose.” Kelo v. City of New

London, 545 U.S. 469, 480 (2005).

[P. 1466, add to text at end of section:]

The expansive interpretation of public use in eminent

domain cases may have reached its outer limit in Kelo v. City of

New London. There, a five-justice majority upheld as a public 19

use the private-to-private transfer of land for purposes of economic development, at least in the context of a well-considered,

areawide redevelopment plan adopted by a municipality to
98 AMENDMENT 5–RIGHTS OF PERSONS

 545 U.S. at 487. 20

 Written by Justice O’Connor, and joined by Justices Scalia and Thomas, and 21

Chief Justice Rehnquist.

 545 U.S. at 501. 22

invigorate a depressed economy. The Court saw no principled

way to distinguish economic development from the economic

purposes endorsed in Berman and Midkiff, and stressed the

importance of judicial deference to the legislative judgment as to

public needs. At the same time, the Court cautioned that private-to-private condemnations of individual properties, not part

of an “integrated development plan . . . raise a suspicion that a

private purpose [is] afoot.” A vigorous four-justice dissent 20

countered that localities will always be able to manufacture a

plausible public purpose, so that the majority opinion leaves the

vast majority of private parcels subject to condemnation when a

higher-valued use is desired. Backing off from the Court’s past 21

endorsements in Berman and Midkiff of a public use/police power

equation, the dissenters referred to the “errant language” of these

decisions, which was “unnecessary” to their holdings.22

Just Compensation

[P. 1467, add to n.584 after first citation:]

The owner’s loss, not the taker’s gain, is the measure of such compensation. Brown v.

Legal Found. of Washington, 538 U.S. 216, 236 (2003).

When Property is Taken

– Regulatory Takings

[P. 1483, substitute for n.683:]

Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra’s sharp physical-regulatory dichotomy is

hard to reconcile with dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005), to

the effect that the Penn Central regulatory takings test, like the physical occupations rule

of Loretto, “aims to identify regulatory actions that are functionally equivalent to the

classic taking in which government directly appropriates private property or ousts the

owner from his domain."

[Pp. 1485-86, substitute for paragraph that begins on page 1485

and for first paragraph that begins on page 1486:]

The first prong of the Agins test, asking whether land use

controls “substantially advance legitimate governmental interests,” has now been erased from takings jurisprudence, after a

quarter-century run. The proper concern of regulatory takings
AMENDMENT 5–RIGHTS OF PERSONS 99

 544 U.S. 528 (2005). 23

 544 U.S. at 542. 24

 483 U.S. 825 (1987). 25

 483 U.S. at 837. Justice Scalia, author of the Court’s opinion in Nollan, amplified 26

his views in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1

(1988), explaining that “common zoning regulations requiring subdividers to observe

lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in

accord with [constitutional requirements] because the proposed property use would

otherwise be the cause of” the social evil (e.g., congestion) that the regulation seeks to

remedy. By contrast, the Justice asserted, a rent control restriction pegged to individual

tenant hardship lacks such cause-and-effect relationship and is in reality an attempt to

impose on a few individuals public burdens that “should be borne by the public as a

whole.” 485 U.S. at 20, 22.

 512 U.S. 374 (1994). 27

law, said Lingle v. Chevron U.S.A. Inc., is the magnitude, 23

character, and distribution of the burdens that a regulation

imposes on property rights. In “stark contrast,” the “substantially advances” test addresses the means-end efficacy of a

regulation, more in the nature of a due process inquiry. As 24

such, it is not a valid takings test.

A third type of inverse condemnation, in addition to regulatory and physical takings, is the exaction taking. A two-part test

has emerged. The first part debuted in Nollan v. California

Coastal Commission, and holds that in order not to be a taking, 25

an exaction condition on a development permit approval (requiring, for example, that a portion of a tract to be subdivided be

dedicated for public roads) must substantially advance a purpose

related to the underlying permit. There must, in short, be an

“essential nexus” between the two; otherwise the condition is “an

out-and-out plan of extortion.” The second part of the exaction- 26

takings test, announced in Dolan v. City of Tigard, specifies 27

that the condition, to not be a taking, must be related to the

proposed development not only in nature, per Nollan, but also in

degree. Government must establish a “rough proportionality”

between the burden imposed by such conditions on the property

owner, and the impact of the property owner’s proposed development on the community – at least in the context of adjudicated

(rather than legislated) conditions.

Nollan and Dolan occasioned considerable debate over the

breadth of what became known as the “heightened scrutiny” test.

The stakes were plainly high in that the test, where it applies,

lessens the traditional judicial deference to local police power and

places the burden of proof as to rough proportionality on the
100 AMENDMENT 5–RIGHTS OF PERSONS

 526 U.S. 687 (1999). 28

 A strong hint that monetary exactions are indeed outside Nollan/Dolan was 29

provided in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining that these

decisions were grounded on the doctrine of unconstitutional conditions as applied to

easement conditions that would have been per se physical takings if condemned directly.

 Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005). The other two decisions 30

are Palazzolo v. Rhode Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002).

 545 U.S. 323 (2005). 31

government. In City of Monterey v. Del Monte Dunes at Monterey,

Ltd., the Court unanimously confined the Dolan rough propor- 28

tionality test, and, by implication, the Nollan nexus test, to the

exaction context that gave rise to those cases. Still unclear,

however, is whether the Court meant to place outside Dolan

exactions of a purely monetary nature, in contrast with the

physically invasive dedication conditions involved in Nollan and

Dolan.

29

The announcement following Penn Central of the above per

se rules in Loretto (physical occupations), Agins and Lucas (total

elimination of economic use), and Nollan/Dolan (exaction conditions) prompted speculation that the Court was replacing its ad

hoc Penn Central approach with a more categorical takings

jurisprudence. Such speculation was put to rest, however, by

three decisions from 2001 to 2005 expressing distaste for categorical regulatory takings analysis. These decisions endorse Penn

Central as the dominant mode of analysis for inverse condemnation claims, confining the Court’s per se rules to the “relatively

narrow” physical occupation and total wipeout circumstances,

and the “special context” of exactions.30

[P. 1490, add to text at end of section:]

The requirement that state remedies be exhausted before

bringing a federal taking claim to federal court has occasioned

countless dismissals of takings claims brought initially in federal

court, while at the same time posing a bar under doctrines of

preclusion to filing first in state court, per Williamson County,

then relitigating in federal court. The effect in many cases is to

keep federal takings claims out of federal court entirely – a

consequence the plaintiffs’ bar has long argued could not have

been intended by the Court. In San Remo Hotel, L.P. v. City and

County of San Francisco, the Court unanimously declined to 31
AMENDMENT 5–RIGHTS OF PERSONS 101

 28 U.S.C. § 1738. The statute commands that “judicial proceedings . . . shall have 32

the same full faith and credit in every court within the United States . . . as they have by

law or usage in the courts of such State . . . .” The statute has been held to encompass

the doctrines of claim and issue preclusion.

See England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). 33

 545 U.S. at 348 (Chief Justice Rehnquist, and Justices O’Connor, Kennedy, and 34

Thomas).

create an exception to the federal full faith and credit statute32

that would allow relitigation of federal takings claims in federal

court. Nor, said the Court, may an England reservation of the

federal taking claim in state court be used to require a federal 33

court to review the reserved claim, regardless of what issues the

state court may have decided. While concurring in the judgment,

four justices asserted that the state-exhaustion prong of Williamson County “may have been mistaken.”34

 Washington v. Recuenco, 548 U.S. 212, 220 (2006). Apprendi is discussed in the 1

next section.

 Ford v. Wainwright, 477 U.S. 399, 416-417 (1986); Atkins v. Virginia, 536 U.S. 2

304, 317 (2002); Schriro v. Smith, 546 U.S. 6, 7 (2005). See Eighth Amendment, “Limitations on Capital Punishment: Diminished Capacity,” infra.

 In Washington v. Recuenco, however, the Court held that “[f]ailure to submit a 3

sentencing factor to the jury, like failure to submit an element [of a crime] to the jury, is

not structural error,” entitling the defendant to automatic reversal, but can be harmless

error. 548 U.S. 212, 222 (2006).

103

SIXTH AMENDMENT

RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

– The Attributes and Function of the Jury

[P. 1505, add to text at end of section:]

Subsequently, the Court held that, just as failing to prove materiality to the jury beyond a reasonable doubt can be harmless error,

so can failing to prove a sentencing factor to the jury beyond a

reasonable doubt. “Assigning this distinction constitutional

significance cannot be reconciled with our recognition in Apprendi

that elements and sentencing factors must be treated the same

for Sixth Amendment purposes.”1

– Criminal Proceedings to Which the Guarantee Applies

[P.1506, add to text at end of first full paragraph:]

The Court has consistently, held, however, that a jury is not

required for purposes of determining whether a defendant is

insane or mentally retarded and consequently not eligible for the

death penalty.2

[P. 1506-1507, substitute for final 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 3

a jury extends to the finding of all facts establishing the elements
104 AMENDMENT 6–RIGHTS OF ACCUSED

 In James v. United States, 127 S. Ct. 1586 (2007), the Court found no Sixth 4

Amendment issue raised when it considered “the elements of the offense . . . without

inquiring into the specific conduct of this particular offender.” Id. at 1594 (emphasis in

original). The question before the Court was whether, under federal law, attempted

burglary, as defined by Florida law, “presents a serious potential risk of physical injury to

another” and therefore constitutes a “violent felony,” subjecting the defendant to a longer

sentence. Id. at 1591. In answering this question, the Court employed the “categorical

approach” of looking only to the statutory definition and not considering the “particular

facts disclosed by the record of conviction.” Id. at 1593-94. Thus, “the Court [was]

engaging in statutory interpretation, not judicial factfinding,” and “[s]uch analysis raises

no Sixth Amendment issue.” Id. at 1600.

 For instance, the Court held that whether a defendant “visibly possessed a gun” 5

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.”

 530 U.S. 466, 490 (2000). 6

 530 U.S. at 494. “[M]erely because the state legislature placed its hate crime 7

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).

 530 U.S. at 490. 8

 530 U.S. at 490. Enhancement of sentences for repeat offenders is traditionally 9

considered a part of sentencing, and a judge may find the existence of previous valid

convictions even if the result is a significant increase in the maximum sentence available.

(continued...)

of a crime, but sentencing factors may be evaluated by a judge.4

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.5

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. “The relevant inquiry is one not of form, but of 6

effect.” Apprendi had been convicted of a crime punishable by 7

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.” The one exception the Apprendi Court 8

recognized was for sentencing enhancements based on

recidivism. Subsequently, the Court refused to apply Apprendi’s 9
AMENDMENT 6–RIGHTS OF ACCUSED 105

 (...continued) 9

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).

 Prior to its decision in Apprendi, the Court had held that factors determinative of 10

minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79

(1986). Although the vitality of McMillan was put in doubt by Apprendi, McMillan was

subsequently reaffirmed in Harris v. United States, 536 U.S. 545, 568-69 (2002). Five

Justices in Harris thought that factfinding required for imposition of mandatory

minimums fell within Apprendi’s reasoning, but one of the five, Justice Breyer, concurred

in the judgment on practical grounds despite his recognition that McMillan was not

“easily” distinguishable “in terms of logic.” 536 U.S. at 569. Justice Thomas’ dissenting

opinion, id. at 572, joined by Justices Stevens, Souter, and Ginsburg, elaborated on the

logical inconsistency, and suggested that the Court’s deference to Congress’ choice to

treat mandatory minimums as sentencing factors made avoidance of Apprendi a matter

of “clever statutory drafting.” Id. at 579.

 536 U.S. 584 (2002). 11

 Walton v. Arizona, 497 U.S. 639 (1990). The Court’s decision in Ring also 12

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).

 “Because Arizona’s enumerated aggravating factors operate as ‘the functional 1 3

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.

 542 U.S. 296 (2004). 14

principles to judicial factfinding that supports imposition of

mandatory minimum sentences.10

Apprendi’s importance soon became evident as the Court

applied its reasoning in other situations. In Ring v. Arizona,

11

the Court, overruling precedent, applied Apprendi to invalidate 12

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.13

In Blakely v. Washington, the Court sent shockwaves 14

through federal as well as state sentencing systems when it

applied Apprendi to invalidate a sentence imposed under Washington State’s sentencing statute. Blakely, who pled guilty to an

offense for which the “standard range” under the state’s sentenc-
106 AMENDMENT 6–RIGHTS OF ACCUSED

 542 U.S. at 303-304 (italics in original; citations omitted). 15

 543 U.S. 220 (2005). 16

 543 U.S. at 244. 17

 543 U.S. at 233. 18

 543 U.S. at 237. Relying on Mistretta v. United States, 488 U.S. 361 (1989), the 19

Court also rejected a separation-of-powers argument. Id. at 754-55.

 There were two distinct opinions of the Court in Booker. The first, authored by 20

Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (the same

Justices who comprised the five-Justice Blakely majority), applied Blakely to find a Sixth

Amendment violation; the other, authored by Justice Breyer, and joined by Chief Justice

Rehnquist and Justices O’Connor, Kennedy, and Ginsburg (the Blakely dissenters joined

by Justice Ginsburg), set forth the remedy.

ing law was 49 to 53 months, was sentenced to 90 months based

on the judge’s determination – not derived from facts admitted in

the guilty plea – that the offense had been committed with

“deliberate cruelty,” a basis for an “upward departure” under the

statute. The 90-month sentence was thus within a statutory

maximum, but the Court made “clear . . . that the ‘statutory

maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the

jury verdict or admitted by the defendant. In other words, the

relevant ‘statutory maximum’ is not the maximum sentence a

judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”15

In United States v. Booker, the Court held that the same 16

principles limit sentences that courts may impose under the

federal Sentencing Guidelines. As the Court restated the principle in Booker, “[a]ny fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Attempts to distinguish Blakely were 17

rejected. Because the Sentencing Reform Act made application of

the Guidelines “mandatory and binding on all judges,” the Court 18

concluded that the fact that the Guidelines were developed by the

Sentencing Commission rather than by Congress “lacks constitutional significance. The mandatory nature of the Guidelines 19

was also important to the Court’s formulation of a remedy.20

Rather than engrafting a jury trial requirement onto the Sentencing Reform Act, the Court instead invalidated two of its provisions, one making application of the Guidelines mandatory, and

one requiring de novo review for appeals of departures from the

mandatory Guidelines, and held that the remainder of the Act
AMENDMENT 6–RIGHTS OF ACCUSED 107

 543 U.S. at 259. The Court substituted a “reasonableness” standard for the de 21

novo review standard. Id. at 262.

 543 U.S. at 245-246 (statutory citations omitted). 22

 127 S. Ct. 856 (2007). 23

 127 S. Ct. at 863, quoting California Rules 4.420(b), 4.408(a). 24

 In Booker, the Court substituted a “reasonableness” standard for the statutory de 25

novo appellate review standard that it struck down. 543 U.S. at 262.

26 “The reasonableness requirement that Booker anticipated for the federal system

operates within the Sixth Amendment constraints delineated in our precedent, not as a

substitute for those constraints.” 127 S. Ct. at 870. The Court also rejected the

argument that the discretion given to the judge made the California system “advisory”

and thus consistent with the remedy established in Booker. Id.

 127 S. Ct. 2456, 2459 (2007). 27

could remain intact. As the Court explained, this remedy 21

“makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court

to tailor the sentence in light of other statutory concerns as

well.”22

In Cunningham v. California, the Court considered 23

whether California’s determinate state sentencing law, yet

another style of legislative effort intended to regularize criminal

sentencing, survived the Booker-Blakely line of cases. That law

required that the trial judge in the case sentence the defendant to

12 years in prison unless the judge found one or more additional

“circumstances in aggravation,” in which case the sentence would

be 16 years. Although such aggravating circumstances could

include specific factual findings made by a judge under a “preponderance of the evidence” standard in apparent violation of Booker

and Blakely, the court was also free to consider “additional

criteria reasonably related to the decision being made.” The 24

defendant argued that this latter provision of the Rule was

consistent with a still-undeveloped holding by the Court in

Booker that even the now-advisory federal sentencing guidelines

would remain subject to appellate review to determine “reasonableness.” The Court rejected this argument, finding that the 25

discretion afforded the trial court by the California law did not

eliminate the unconstitutional requirement that the court make

the factual findings that imposed a higher prison term.26

In Rita v. United States, the Court upheld the application,

by federal courts of appeals, of the presumption “that a sentence

imposed within a properly calculated United States Sentencing

Guidelines range is a reasonable sentence.” Even if “the pre- 27

sumption increases the likelihood that the judge, not the jury,
108 AMENDMENT 6–RIGHTS OF ACCUSED

 127 S. Ct. at 2465-66 (emphasis in original). The Court added: “The fact that we 28

permit courts of appeals to adopt a presumption of reasonableness does not mean that

courts may adopt a presumption of unreasonableness. . . . [A]ppellate courts may not

presume that every variance from the advisory Guidelines is unreasonable. . . . Several

courts of appeals have also rejected a presumption of unreasonableness. . . . However, a

number of circuits adhere to the proposition that the strength of the justification needed

to sustain an outside-Guidelines sentence varies in proportion to the degree of the

variance. . . . We will consider that approach next Term in United States v. Gall, No.

06-7949.” Id. at 2467.

 128 S. Ct. 586 (2007) (upholding a sentence of probation where the Guidelines 29

had recommended imprisonment).

 128 S. Ct. at 591. “As explained in Rita and Gall, district courts must treat the 30

Guidelines as the ‘starting point and the initial benchmark.’” Kimbrough v. United

States, 128 S. Ct. 558 (2007) (upholding lower-than-Guidelines sentence for trafficker in

crack cocaine, where sentence “is based on a disagreement with the sentencing disparity

for crack and powder cocaine offenses”). A district court judge may determine “that, in

the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the

objectives of sentencing.” Kimbrough, 128 S. Ct. at 564.

will find ‘sentencing facts,’” the Court wrote, it “does not violate

the Sixth Amendment. This Court’s Sixth Amendment cases do

not automatically forbid a sentencing court to take account of

factual matters not determined by a jury and to increase the

sentence in consequence. Nor do they prohibit the sentencing

judge from taking account of the Sentencing Commission’s factual

findings or recommended sentences. See Cunningham v. California . . . . The Sixth Amendment question, the Court has said, is

whether the law forbids a judge to increase a defendant’s sentence unless the judge finds facts that the jury did not find (and

the offender did not concede). . . . A nonbinding appellate presumption that a Guidelines sentence is reasonable does not

require the judge to impose that sentence. Still less does it forbid

he sentencing judge from imposing a sentence higher than the

Guidelines provide for the jury-determined facts standing

alone.”28

In United States v. Gall, the Court held that, “while the 29

extent of the difference between a particular sentence and the

recommended Guidelines range is surely relevant, courts of

appeals must review all sentences – whether inside, just outside,

or significantly outside the Guidelines range – under a deferential abuse-of-discretion standard.” The Court rejected “an 30

appellate rule that requires ‘extraordinary’ circumstances to

justify a sentence outside the Guidelines range,” and also rejected

“the use of a rigid mathematical formula that uses the percentage

of a departure as the standard for determining the strength of the

justifications required for a specific sentence.” These approaches,
AMENDMENT 6–RIGHTS OF ACCUSED 109

128 S. Ct. at 595. Justice Alito, dissenting, wrote, “we should not forget [that] . . . 31

Booker and its antecedents are based on the Sixth Amendment right to trial by jury....

It is telling that the rules set out in the Court’s opinion in the present case have nothing

to do with juries or factfinding and, indeed, that not one of the facts that bears on

petitioner’s sentence is disputed. What is at issue, instead, is the allocation of the

authority to decide issues of substantive sentencing policy, an issue on which the Sixth

Amendment says absolutely nothing. The yawning gap between the Sixth Amendment

and the Court’ opinion should be enough to show that the Blakely-Booker line of cases has

gone astray.” Id. at 605 (Alito, J., dissenting).

 127 S. Ct. 2218 (2007). 32

 127 S. Ct. at 2224 (citations omitted). Deference was the focus of Uttecht v. 3 3

Brown, as the Court, by a 5-to-4 vote, reversed the Ninth Circuit and affirmed a death

sentence, finding that the Ninth Circuit had neglected to accord the deference it owed to

the trial court’s finding that a juror was not substantially impaired. The Court concluded:

“Courts reviewing claims of Witherspoon-Witt error . . . , especially federal courts

considering habeas petitions, owe deference to the trial court, which is in a superior

position to determine the demeanor and qualifications of a potential juror.” Id. at 2231.

The reason that federal courts of appeals owe special deference when considering habeas

petitions is that the Antiterrorism and Effective Death Penalty Act of 1996 “provide[s]

additional, and binding, directions to accord deference.” Id. at 2224. The dissent, written

by Justice Stevens and joined by Justices Souter, Ginsburg, and Breyer, noted that the

juror whose exclusion for cause was challenged had “repeatedly confirmed” that, despite

his “general reservations” about the death penalty, he would be able to vote for it. Id. at

2240. Even under the standard of review imposed by the Antiterrorism and Effective

(continued...)

the Court said, “come too close to creating an impermissible

presumption of unreasonableness for sentences outside the

Guidelines range.”31

Impartial Jury

[P. 1511, add to text after n.110:]

In Uttecht v. Brown, the Court summed up four principles 32

that it derived from Witherspoon and Witt [cited in the main

volume at n.105]: “First a criminal defendant has the right to an

impartial jury drawn from a venire that has not been tilted in

favor of capital punishment by selective prosecutorial challenges

for cause. Second, the State has a strong interest in having

jurors who are able to apply capital punishment within the

framework state law prescribes. Third, to balance these interests, a juror who is substantially impaired in his or her ability to

impose the death penalty under the state-law framework can be

excused for cause; but if the juror is not substantially impaired,

removal for cause is impermissible. Fourth, in determining

whether the removal of a potential juror would vindicate the

State’s interest without violating the defendant’s right, the trial

court makes a judgment based in part on the demeanor of the

juror, a judgment owed deference by reviewing courts.”33
110 AMENDMENT 6–RIGHTS OF ACCUSED

 (...continued) 33

Death Penalty Act of 1996, “[w]hile such testimony might justify a peremptory challenge,

until today not one of the many cases decided in the wake of Witherspoon v. Illinois has

suggested that such a view would support a challenge for cause. . . . In its opinion, the

Court blindly accepts the state court’s conclusory statement that [the juror’s] views would

have ‘substantially impaired’ his ability to follow the court’s instructions without

examining what that term means in practice and under our precedents.” Id. at 2240

(citation to Witherspoon omitted).

 448 U.S. 56 (1980). The witness was absent from home and her parents testified 34

they did not know where she was or how to get in touch with her. The state’s sole effort

to locate her was to deliver a series of subpoenas to her parents’ home. Over the

objection of three dissenters, the Court held this to be an adequate basis to demonstrate

her unavailability. Id. at 74-77.

 “[O]nce a witness is shown to be unavailable . . . , the Clause countenances only 35

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.

 Applying Roberts, the Court held that the fact that defendant’s and codefendant’s 36

confessions “interlocked” on a number of points was not a sufficient indicium of reliability, since the confessions diverged on the critical issues of the respective roles of the two

defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts was narrowed in United States

v. Inadi, 475 U.S. 387 (1986), which held that the rule of “necessity” is confined to use of

testimony from a prior judicial proceeding, and is 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).

 541 U.S. 36 (2004). 37

 541 U.S. at 60-61. 38

 541 U.S. at 63. 39

CONFRONTATION

[P. 1522, substitute for both paragraphs on page:]

In Ohio v. Roberts, a Court majority adopted the reliability 34

test for satisfying the confrontation requirement through use of a

statement by an unavailable witness. Over the course of 24 35

years, Roberts was applied, narrowed, and finally overruled in 36

Crawford v. Washington. The Court in Crawford rejected 37

reliance on “particularized guarantees of trustworthiness” as

inconsistent with the requirements of the Confrontation Clause.

The Clause “commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the

crucible of cross-examination.” Reliability is an “amorphous” 38

concept that is “manipulable,” and the Roberts test had been

applied “to admit core testimonial statements that the Confrontation Clause plainly meant to exclude.” “Where testimonial 39
AMENDMENT 6–RIGHTS OF ACCUSED 111

 541 U.S. at 68-69. 40

 541 U.S. at 54, 59. Although the Court left “for another day any effort to spell out 41

a comprehensive definition of ‘testimonial,’” it indicated 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. Id. at 68.

 Giles v. California, 128 S. Ct. 2678, 2682, 2683 (2008). 42

 128 S. Ct. at 2683. 43

 128 S. Ct. at 2686. 44

 547 U.S. 813 (2006). 45

statements are at issue, the only indicium of reliability sufficient

to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.”40

Crawford represented a decisive turning point by clearly

stating the basic principles to be used in Confrontation Clause

analysis. “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. Under the 41

Confrontation Clause, the only exceptions that the Court has

acknowledged are the two that existed under common law at the

time of the founding: “declarations made by a speaker who was

both on the brink of death and aware that he was dying,” and

“statements of a witness who was ‘detained’ or ‘kept away’ by the

‘means or procurement’ of the defendant.” The second of these 42

exceptions applies “only when the defendant engaged in conduct

designed to prevent the witness from testifying.” Thus, in a 43

trial for murder, the question arose whether statements made by

the victim to a police officer three weeks before she was murdered, that the defendant had threatened her, could be admitted.

The state court had admitted them on the basis that the defendant’s having murdered the victim had made the victim unavailable to testify, but the Supreme Court reversed, holding that,

unless the testimony had been confronted or fell within the dying

declaration exception, it could not be admitted “on the basis of a

prior judicial assessment that the defendant is guilty as

charged,” for to admit it on that basis it would “not sit well with

the right to trial by jury.”44

In Davis v. Washington, the Court began to explore the 45

parameters of Crawford by considering when a police interrogation is “testimonial”for purposes of the Confrontation Clause.
112 AMENDMENT 6–RIGHTS OF ACCUSED

 547 U.S. at 822. 46

 547 U.S. at 828-29. Thus, where police responding to a domestic violence report 47

interrogated a woman in the living room while her husband was being questioned in the

kitchen, there was no present threat to the woman, so such information as was solicited

was testimonial. Id. at 830 (facts of Hammon v. Indiana, considered together with

Davis).

 United States v. Gonzalez-Lopez, 548 U.S. 140, 144-45 (2006). 48

 Arizona v. Fulminante, 499 U.S. 279, 307-310 (1991). 49

Davis involved a 911 call in which a women described being

assaulted by a former boyfriend. A tape of that call was admitted

as evidence of a felony violation of a domestic no-contact order,

despite the fact that the women in question did not testify.

Although again declining to establish all the parameters of when

a response to police interrogation is testimonial, the Court held

that statements to the police are nontestimonial when made

under circumstances that “objectively indicat[e] that the primary

purpose of the interrogation is to enable police assistance to meet

an ongoing emergency.” Statements made after such an emer- 46

gency has ended, however, would be treated as testimonial and

could not be introduced into evidence.47

ASSISTANCE OF COUNSEL

Development of an Absolute Right to Counsel at Trial

– Johnson v. Zerbst

[P. 1528, add to n.208:]

A waiver must be knowing, voluntary, and intelligent, but need not be based on a full and

complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004)

(holding that warnings by trial judge detailing risks of waiving right to counsel are not

constitutionally required before accepting guilty plea from uncounseled defendant).

– Protection of the Right to Retained Counsel

[P. 1531, add to text after n.229:]

Where the right to be assisted by counsel of one’s choice is

wrongly denied, a Sixth Amendment violation occurs regardless

of whether the alternate counsel retained was effective, or

whether the denial caused prejudice to the defendant. Further, 48

because such a denial is not a “trial error” (a constitutional error

that occurs during presentation of a case to the jury), but a

“structural defect” (a constitutional error that affects the framework of the trial), the Court had held that the decision is not 49
AMENDMENT 6–RIGHTS OF ACCUSED 113

Gonzalez-Lopez, 548 U.S. at 148-49. The Court noted that an important compo- 50

nent of the finding that denial of the right to choose one’s own counsel was a “structural

defect” was the difficulty of assessing the effect of such denial on a trial’s outcome. Id. at

149 n.4.

 There is no obligation to present on appeal all nonfrivolous issues requested by 51

the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his

professional judgment in determining which issues are best raised on appeal).

subject to a “harmless error” analysis.50

– Effective Assistance of Counsel

[P. 1535, add new footnote after “virtually unchallengeable,” in

sentence ending with n.252:]

Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference

to attorney’s choice of tactics for closing argument).

[P. 1535, substitute for n.252:]

Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002) (state

courts could reasonably have concluded that failure to present mitigating evidence was

outweighed by “severe” aggravating factors). See also Schriro v. Landrigan, 127 S. Ct.

1933 (2007) (federal district court was within its discretion to conclude that attorney’s

failure to present mitigating evidence made no difference in sentencing). But see Wiggins

v. Smith, 539 U.S. 510 (2003) (attorney’s failure to pursue defendant’s personal history

and present important mitigating evidence at capital sentencing was objectively

unreasonable); and Rompilla v. Beard, 545 U.S. 374 (2005) (attorneys’ failure to consult

trial transcripts from a prior conviction that the attorneys knew the prosecution would

rely on in arguing for the death penalty was inadequate).

[P. 1535, change period in text before n.252 to comma and add to

text after n.252:]

and decisions selecting which issues to raise on appeal.51

[P. 1536, add to n.260:]

In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), the Supreme Court noted that

it has never ruled on whether, during a plea hearing at which the defendant pleads guilty,

defense counsel’s being linked to the courtroom by speaker phone, rather than being

physically present, is likely to result in such poor performance that Cronic should apply.

The fact that the Court has never ruled on the question means that “it cannot be said that

the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’” and, as a

consequence, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254(d)(1), the defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v.

Musladin, 127 S. Ct. 649, 654 (2006), as to which see “Limitations on Habeas Corpus

Review of Capital Sentences” under Eighth Amendment).

[P. 1536, substitute for n.261:]

Cronic, 466 U.S. at 659 n.26.

[P. 1536, change the period in text before n.261 to a comma, and

add after new comma:]

and consequently most claims of inadequate representation are to
114 AMENDMENT 6–RIGHTS OF ACCUSED

Strickland and Cronic were decided the same day, and the Court’s opinion in 52

each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. The

Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for

“claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666 n.41. The narrow

reach of Cronic has been illustrated by subsequent decisions. Not constituting per se

ineffective assistance is a defense counsel’s failure to file a notice of appeal, or in some

circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega,

528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). See

also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant

has failed to consent to a tenable strategy counsel has adequately disclosed to and

discussed with him). A standard somewhat different from Cronic and Strickland governs

claims of attorney conflict of interest. See discussion of Cuyler v. Sullivan under

“Protection of Right to Retained Counsel,” supra.

 Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) (right to appointed counsel 53

attaches even if no public prosecutor, as distinct from a police officer, is aware of that

initial proceeding or involved in its conduct).

be measured by the Strickland standard.52

– Self-Representation

[P. 1536, add to n.262 after initial citation:]

An invitation to overrule Faretta because it leads to unfair trials was declined in Indiana

v. Edwards, 128 S. Ct. 2379, 2388 (2008).

[P. 1536, add to n.262 before sentence beginning with “Related”:]

The Court, however, has not addressed what state aid, such as access to a law library,

might need to be made available to a defendant representing himself. Kane v. Garcia

Espitia, 546 U.S. 9 (2005) (per curiam).

[P. 1537, add footnote at end of the sentence that ends on third

line of the page:]

The fact that a defendant is mentally competent to stand trial does not preclude a court

from finding him not mentally competent to represent himself at trial. Indiana v.

Edwards, 128 S. Ct. 2379 (2008). Mental competence to stand trial, however, is sufficient

to ensure the right to waive the right to counsel in order to plead guilty. Godinez v.

Moran, 509 U.S. 389, 398 (1993).

Right to Assistance of Counsel in Nontrial Situations

– Judicial Proceedings Before Trial

[P. 1537: insert at the beginning of the section:]

Even a preliminary hearing where no government prosecutor is present can trigger the right to counsel. “[A] criminal 53

defendant’s defendant’s initial appearance before a judicial

officer, where he learns the charges against him and his liberty is

subject to restriction, marks the start of adversary judicial

proceedings that trigger attachment of the Sixth Amendment
AMENDMENT 6–RIGHTS OF ACCUSED 115

 128 S. Ct. at 2592. 54

 128 S. Ct. at 2592 (Alito, J., concurring). Justice Alito’s concurrence, joined by 55

Chief Justice Roberts and Justice Scalia, was not necessary for the majority opinion in

Rothgery, but the majority noted that it had not decided “whether the 6-month delay in

appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and

have no occasion to consider what standards should apply in deciding this.” Id.

 128 S. Ct. at 2595 (Alito, J. concurring). 56

right to counsel.” “Attachment,” however, may signify “nothing 54

more than the beginning of the defendant’s prosecution [and] . . .

not mark the beginning of a substantive entitlement to the

assistance of counsel.” Thus, counsel need only be appointed “as 55

far in advance of trial, and as far in advance of any pretrial

‘critical stage,’ as necessary to guarantee effective assistance at

trial.”56

– Custodial Interrogation

[P. 1539, add new footnote at end of paragraph continued from

page 1538:]

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

Fellers v. United States, 540 U.S. 519 (2004), holding that absence of an interrogation is

irrelevant in a Massiah-based Sixth Amendment inquiry.

 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2512, n.8 (2007). 1

 127 S. Ct. at 2512. 2

 127 S. Ct. at 2512 (quoting Fidelity & Deposit Co. of Md. v. United States, 187 3

U.S. 315, 320 (1902)).

117

SEVENTH AMENDMENT

TRIAL BY JURY IN CIVIL CASES

Application of the Amendment

– Procedures Limiting Jury’s Role

[P. 1557, add to text after n.61:]

“In numerous contexts, gatekeeping judicial determinations

prevent submission of claims to a jury's judgment without

violating the Seventh Amendment.” Thus, in order to screen out 1

frivolous complaints or defenses, Congress “has power to prescribe what must be pleaded to state the claim, just as it has the

power to determine what must be proved to prevail on the merits.

It is the federal lawmaker's prerogative, therefore, to allow,

disallow, or shape the contours of – including the pleading and

proof requirements for . . . private actions.” A “heightened 2

pleading rule simply ‘prescribes the means of making an issue,’

and . . . , when ‘[t]he issue [is] made as prescribed, the right of

trial by jury accrues.’”3

 128 S. Ct. 1520 (2008). 1

 128 S. Ct. at 1530-31. The plurality opinion was written by Chief Justice Roberts 2

and joined by Justices Kennedy and Alito. There were five concurring opinions (one of

them by Justice Alito) and a dissenting opinion by Justice Ginsburg, joined by Justice

Souter.

 128 S. Ct. at 1532. Justice Thomas, joined by Justice Scalia, would have found 3

that “a method of execution violates the Eighth Amendment only if it is deliberately

designed to inflict pain.” Id. at 1556. Justice Ginsburg, joined by Justice Souter in

dissent, would have found that a method of execution violates the Eighth Amendment if

it “poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain.”

Id. at 1567. Justice Breyer agreed with the Eighth Amendment standard that Justice

Ginsburg would have applied, but he concurred with the plurality because he could not

find sufficient evidence that the three-drug protocol violated that standard. Id. at 1563.

Thus, while Justices Scalia and Thomas’ standard would result in Eighth Amendment

violations in fewer situations than the plurality’s would, Justices Ginsburg, Souter, and

Breyer’s standard would result in violations in more situations that the plurality’s would.

Justice Stevens remained neutral as to the appropriate standard. Although concluding

(continued...)

119

EIGHTH AMENDMENT

CRUEL AND UNUSUAL PUNISHMENTS

Application and Scope

[P. 1572, add to text after n.53:]

In Baze v. Rees, a Court plurality upheld capital punish- 1

ment by a three-drug lethal injection protocol, despite the risk

that the protocol will not be properly followed and that severe

pain will result. The plurality found that, although “subjecting

individuals to a risk of future harm – not simply actually inflicting pain – can qualify as cruel and unusual punishment . . . , the

conditions presenting the risk must be ‘sure or very likely to cause

serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on such a claim there

must be a ‘substantial risk of serious harm,’ an ‘objectively

intolerable risk of harm’ that prevents prison officials from

pleading that they were ‘subjectively blameless for purposes of

the Eighth Amendment.’” The presence of an “unnecessary” or 2

“untoward” risk of harm that can be eliminated by adopting

alternative procedures, the plurality found, is insufficient to

render the three-drug protocol unconstitutional. Instead, for the

protocol to be unconstitutional, an “alternative procedure must be

feasible, readily implemented, and in fact significantly reduce a

substantial risk of severe pain.”3
120 AMENDMENT 8–PUNISHMENT FOR CRIME

 (...continued) 3

that capital punishment itself violates the Eighth Amendment, he found that, under

existing precedents, “whether as interpreted by the Chief Justice or Justice Ginsburg,”

the petitioners failed to prove that the protocol violated the Eighth Amendment. Id. at

1552.

Capital Punishment

[P. 1574, delete closed parenthesis at the end of n.62 and add to

n.62:]

and announcing that, “[f]rom this day forward, I no longer shall tinker with the machinery of death,” id. at 1145). Justice Stevens has also concluded that the death penalty

violates the Eighth Amendment, but, because of his wish “to respect precedents that

remain a part of our law,” does not constitute an automatic vote against challenged death

sentences. Baze v. Rees, 128 S. Ct. 1520, 1552 (2008) (finding the death penalty to violate

the Eighth Amendment but concurring with the Court plurality that Kentucky’s lethal

injection protocol does not violate the Eighth Amendment).

– General Validity and Guiding Principles

[P. 1576, n.74, insert after citation to Coker v. Georgia:]

Kennedy v. Louisiana, 128 S. Ct. 2461 (2008) (rape of an eight-year-old child);

[P. 1577, n.74, substitute for “18 U.S.C. § 1472”:]

49 U.S.C. § 46502

[P. 1577, add to n.74:]

But the treason statute also constitutes a crime against the state, which may be

significant. In Kennedy v. Louisiana, 128 S. Ct. 2641, 2659 (2008), in overturning a death

sentence imposed for the rape of a child, the Court wrote, “Our concern here is limited to

crimes against individual persons. We do not address, for example, crimes defining and

punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses

against the State.”

– Implementation of Procedural Requirements

[P. 1581, add to n.91:]

Bell v. Cone, 543 U.S. 447 (2005) (presumption that state supreme court applied a

narrowing construction because it had done so numerous times).

[P. 1583, add to n.99:]

Although, under the Eighth and Fourteenth Amendments, the state must bear the burden

“to prove the existence of aggravating circumstances, a defendant’s constitutional rights

are not violated by placing on him the burden of proving mitigating circumstances

sufficiently substantial to call for leniency.” Walton v. Arizona, 497 U.S. 639, 650 (1990)

(plurality). A fortiori, a statute “may direct imposition of the death penalty when the

State has proved beyond a reasonable doubt that mitigators do not outweigh aggravators,

including where the aggravating circumstances and mitigating circumstances are in

equipoise.” Kansas v. Marsh, 548 U.S. 163, 173 (2006).
AMENDMENT 8–PUNISHMENT FOR CRIME 121

 546 U.S. 212, 220 (2006). In some states, “the only aggravating factors permitted 4

to be considered by the sentencer [are] the specified eligibility factors.” Id. at 217. These

are known as weighing states; non-weighing states, by contrast, are those that permit

“the sentencer to consider aggravating factors different from, or in addition to, the

eligibility factors.” Id. Prior to Brown v. Sanders, in weighing states, the Court deemed

“the sentencer’s consideration of an invalid eligibility factor” to require “reversal of the

sentence (unless a state appellate court determined the error was harmless or reweighed

the mitigating evidence against the valid aggravating factors).” Id.

[P. 1585, insert before the final sentence (which begins “But cf.”)

of n.110 (which begins on p. 1584):]

Abdul-Kabir v. Quarterman, 127 S. Ct. 1654 (2007) (jury must be

permitted to consider the defendant’s evidence of childhood

neglect and mental illness damage outside of the context of

assessment of future dangerousness); Brewer v. Quarterman, 127

S. Ct. 1706 (2007) (same).

[P. 1585, add to n.114:]

Nor did a court offend the Constitution by instructing the jury to consider “[a]ny other

circumstance which extenuates the gravity of the crime,” without specifying that such

circumstance need not be a circumstance of the crime, but could include “some likelihood

of future good conduct.” This was because the jurors had heard “extensive for

ward-looking evidence," and it was improbable that they would believe themselves barred

from considering it. Ayers v. Belmontes, 127 S. Ct. 469, 475, 476 (2006).

[P. 1586, add to text after paragraph carried over from page

1585:]

What is the effect on a death sentence if an “eligibility

factor” (a factor making the defendant eligible for the death

penalty) or an “aggravating factor” (a factor, to be weighed

against mitigating factors, in determining whether a defendant

who has been found eligible for the death penalty should receive

it) is found invalid? In Brown v. Sanders, the Court announced

“the following rule: An invalidated sentencing factor (whether an

eligibility factor or not) will render the sentence unconstitutional

by reason of its adding an improper element to the aggravation

scale in the weighing process unless one of the other sentencing

factors enables the sentencer to give aggravating weight to the

same facts and circumstances.”4

[P. 1586, add to text after first full paragraph:]

In Oregon v. Guzek, the Court could “find nothing in the

Eighth or Fourteenth Amendments that provides a capital

defendant a right to introduce,” at sentencing, new evidence,

available to him at the time of trial, “that shows he was not
122 AMENDMENT 8–PUNISHMENT FOR CRIME

 546 U.S. 517, 523 (2006). 5

 546 U.S. at 524, 526 (Court’s emphasis deleted in part). 6

 546 U.S. at 526. 7

 Kennedy v. Louisiana, 128 S. Ct. 2641, 2649 (2008). 8

 128 S. Ct. at 2675 (Alito, J., dissenting) (quoting Harmelin v. Michigan, 501 U.S. 9

957, 990 (1991)).

present at the scene of the crime.” Although “the Eighth and 5

Fourteenth Amendments require that the sentencer . . . not be

precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a sentence

less than death,” such evidence is a traditional concern of sentencing because it tends to show “how, not whether,” the defendant committed the crime. Alibi evidence, by contrast, concerns 6

“whether the defendant committed the basic crime,” and “thereby

attacks a previously determined matter in a proceeding [i.e.,

sentencing] at which, in principle, that matter is not at issue.”7

– Limitations on Capital Punishment: Proportionality

[P. 1587, insert new paragraph at the beginning of the section:]

The Court has also considered whether, based on the nature

of the underlying offense (or, as explored in the next topic, the

capacity of the defendant), the imposition of capital punishment

may be inappropriate in particular cases. “[T]he Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic ‘precept of justice that punishment for

[a] crime should be graduated and proportioned to [the] offense.’

Whether this requirement has been fulfilled is determined not by

the standards that prevailed when the Eighth Amendment was

adopted in 1791 but by the norms that ‘currently prevail.’’ The

Amendment ‘draw[s] its meaning from the evolving standards of

decency that mark the progress of a maturing society.’” How- 8

ever, the “Court has . . . made it clear that ‘[t]he Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional

maximum, disabling States from giving effect to altered beliefs

and responding to changed social conditions.’”9
AMENDMENT 8–PUNISHMENT FOR CRIME 123

 128 S. Ct. 2641 (2008). Justice Kennedy’s opinion was joined by Justices Stevens, 10

Souter, Ginsburg, and Breyer. Justice Alito filed a dissenting opinion, in which Chief

Justice Roberts and Justices Scalia and Thomas joined.

 The Court noted, however, that “[o]ur concern here is limited to crimes against 11

individual persons. We do not address, for example, crimes defining and punishing

treason, espionage, terrorism, and drug kingpin activity, which are offenses against the

State.” 128 S. Ct. at 2659.

 128 S. Ct. 2641, 2649, 2653. The Court noted that, since Gregg, it had “spent 12

more than 32 years articulating limiting factors that channel the jury’s discretion to

avoid the death penalty's arbitrary imposition in the case of capital murder. Though that

practice remains sound, beginning the same process for crimes for which no one has been

executed in more than 40 years would require experimentation in an area where a failed

experiment would result in the execution of individuals undeserving of the death penalty.

Evolving standards of decency are difficult to reconcile with a regime that seeks to

expand the death penalty to an area where standards to confine its use are indefinite and

obscure.” Id. at 2661.

 127 S. Ct. 2842 (2007). 13

 In Panetti, the defendant, despite apparent mental problems, was found to 14

understand both his imminent execution and the fact that the State of Texas intended to

execute him for having murdered his mother-in-law and father-in-law. It was argued,

however, that defendant, suffering from delusions, believed that the stated reason for his

execution was a “sham” and that the state wanted to execute him “to stop him from

preaching.”

[P. 1588, substitute for the first word on the page (“The”):]

In Kennedy v. Louisiana, the Court held that this was true even 10

when the rape victim was a child. In Coker, the 11

[P. 1588, add to text after n.131:]

In Kennedy v. Louisiana, the Court found that both “evolving

standards of decency” and “a national consensus” preclude the

death penalty for a person who rapes a child.12

–Limitations on Capital Punishment: Diminished Capacity

[P. 1590, add to text after n.138:]

In Panetti v. Quarterman, the Court considered two of the 13

issues raised, but not clearly answered, in Ford: what definition

of insanity should be used in capital punishment cases, and what

process must be afforded to the defendant to prove his incapacity. Although the court below had found that it was sufficient to

establish competency that a defendant know that he is to be

executed and the reason why, the Court in Panetti rejected these

criteria, and sent the case back to the lower court for it to consider whether the defendant had a rational understanding of the

reasons the state gave for an execution, and how that reflected on

his competency. The Court also found that the failure of the 14

state to provide the defendant an adequate opportunity to
124 AMENDMENT 8–PUNISHMENT FOR CRIME

 127 S. Ct. at 2858. 15

 536 U.S. at 317 (citation omitted), quoting Ford v. Wainwright. 16

 546 U.S. 6, 7 (2005) (per curiam). 17

 546 U.S. at 7. 18

 536 U.S. at 314, n.18. 19

respond to the findings of two court-appointed mental health

experts violated due process.15

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

See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of low intelligence should be

admissible for mitigating purposes without being screened on basis of severity of

disability).

[P. 1591, add to text after n.143:]

In Atkins, the Court wrote, “As was our approach in Ford v.

Wainwright with regard to insanity, ‘we leave to the State[s] the

task of developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.’” In Schriro v. 16

Smith, the Court again quoted this language, holding that “[t]he

Ninth Circuit erred in commanding the Arizona courts to conduct

a jury trial to resolve Smith’s mental retardation claim.” States, 17

the Court added, are entitled to “adopt[ ] their own measures for

adjudicating claims of mental retardation,” though “those measures might, in their application, be subject to constitutional

challenge.”18

[P. 1591, substitute for first two sentences of first full paragraph:]

The Court’s conclusion that execution of juveniles constitutes cruel and unusual punishment evolved in much the same

manner. Initially, a closely divided Court invalidated one statutory scheme that permitted capital punishment to be imposed for

crimes committed before age 16, but upheld other statutes

authorizing capital punishment for crimes committed by 16- and

17-year-olds.

[P. 1591, substitute for rest of paragraph in text following n.148:]

Although the Court in Atkins v. Virginia contrasted the

national consensus said to have developed against executing the

mentally retarded with what it saw as a lack of consensus

regarding execution of juvenile offenders over age 15, less than 19

three years later the Court held that such a consensus had
AMENDMENT 8–PUNISHMENT FOR CRIME 125

 543 U.S. 551 (2005). The case was decided by 5-4 vote. Justice Kennedy wrote 20

the Court’s opinion, and was joined by Justices Stevens, Souter, Ginsburg, and Breyer.

Justice O’Connor, who had joined the Court’s 6-3 majority in Atkins, wrote a dissenting

opinion, as did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice

Thomas.

 Dissenting in Simmons, Justice O’Connor disputed the consistency of the trend, 21

pointing out that since Stanford two states had passed laws reaffirming the

permissibility of executing 16- and 17-year-old offenders. 543 U.S. at 596.

 543 U.S. at 564. The Stanford Court had been split over the appropriate scope of 22

inquiry in cruel and unusual punishment cases. Justice Scalia’s plurality would have

focused almost exclusively on an assessment of what the state legislatures and Congress

have done in setting an age limit for application of capital punishment. 492 U.S. at 377

(“A revised national consensus so broad, so clear and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative

acts (laws and the application of laws) that the people have approved.”). The Stanford

dissenters would have broadened this inquiry with a proportionality review that

considers the defendant’s culpability as one aspect of the gravity of the offense, that

considers age as one indicator of culpability, and that looks to other statutory age

classifications to arrive at a conclusion about the level of maturity and responsibility that

society expects of juveniles. 492 U.S. at 394-96. The Atkins majority adopted the

approach of the Stanford dissenters, conducting a proportionality review that brought

their own “evaluation” into play along with their analysis of consensus on the issue of

executing the mentally retarded.

developed. The Court’s decision in Roper v. Simmons drew 20

parallels with Atkins. A consensus had developed, the Court

held, against the execution of juveniles who were age 16 or 17

when they committed their crimes. Since Stanford, five states

had eliminated authority for executing juveniles, and no states

that formerly prohibited it had reinstated the authority. In all,

30 states prohibited execution of juveniles: 12 that prohibited the

death penalty altogether, and 18 that excluded juveniles from its

reach. This meant that 20 states did not prohibit execution of

juveniles, but the Court noted that only five of these states had

actually executed juveniles since Stanford, and only three had

done so in the 10 years immediately preceding Simmons. Although the pace of change was slower than had been the case

with execution of the mentally retarded, the consistent direction

of change toward abolition was deemed more important.21

As in Atkins, the Simmons Court relied on its “own independent judgment” in addition to its finding of consensus among

the states. Three general differences between juveniles and 22

adults make juveniles less morally culpable for their actions.

Because juveniles lack maturity and have an underdeveloped

sense of responsibility, they often engage in “impetuous and

ill-considered actions and decisions.” Juveniles are also more

susceptible than adults to “negative influences” and peer pres-
126 AMENDMENT 8–PUNISHMENT FOR CRIME

 543 U.S. at 569, 570. 23

 543 U.S. at 570. 24

 543 U.S. at 572-573. Strongly disagreeing, Justice O’Connor wrote that “an 25

especially depraved juvenile offender may . . . be just as culpable as many adult offenders

considered bad enough to deserve the death penalty. . . . [E]specially for 17-year-olds . . .

the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree,

rather than of kind.” Id. at 600.

 543 U.S. at 578 (noting “the stark reality that the United States is the only 26

country in the world that continues to give official sanction to the juvenile death

penalty,” id. at 575).

 Citing as precedent Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion); 27

Atkins, 536 U.S. at 317, n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 (1982);

Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 (1988) (plurality opinion); and

Coker v. Georgia, 433 U.S. 584, 596 n.10 (1977) (plurality opinion).

sure. Finally, the character of juveniles is not as well formed,

and their personality traits are “more transitory, less fixed.”23

For these reasons, irresponsible conduct by juveniles is “not as

morally reprehensible,” they have “a greater claim than adults to

be forgiven,” and “a greater possibility exists that a minor’s

character deficiencies will be reformed. Because of the dimin- 24

ished culpability of juveniles, the penological objectives of retribution and deterrence do not provide adequate justification for

imposition of the death penalty. The majority preferred a categorical rule over individualized assessment of each offender’s

maturity, explaining that “[t]he differences between juvenile and

adult offenders are too marked and well understood to risk

allowing a youthful person to receive the death penalty despite

insufficient culpability.”25

The Simmons Court found confirmation for its holding in

“the overwhelming weight of international opinion against the

juvenile death penalty.” Although “not controlling,” the rejec- 26

tion of the juvenile death penalty by other nations and by international authorities was “instructive,” as it had been in earlier

cases, for Eighth Amendment interpretation.27

– Limitations on Habeas Corpus Review of Capital Sentences

[P. 1594, delete everything after the citation in n.161, and add a

new footnote at end of the second sentence (which ends with

“applies”) of the paragraph in the text:]

The “new rule” limitation was suggested in a plurality opinion in Teague, and a Court

majority in Penry and later cases adopted it. In Danforth v. Minnesota, 128 S. Ct. 1029,

1033 (2008), the Court held that Teague does not “constrain[ ] the authority of state courts

to give broader effect to new rules of criminal procedure than is required by that opinion.”
AMENDMENT 8–PUNISHMENT FOR CRIME 127

 Fry v. Pliler, 127 S. Ct. 2321, 2324 (2007). 28

 127 S. Ct. 649 (2006). 29

 Estelle v. Williams, 425 U.S. 501, 512 (1976). 30

[P. 1594, add to n.162 after initial citation:]

In Whorton v. Bockting, 127 S. Ct. 1173, 1180 (2007), the Court stated that the two

exceptions – the situations in which “[a] new rule applies retroactively in a collateral

proceeding” – are when “(1) the rule is substantive or (2) the rule is a ‘watershed rul[e] of

criminal procedure’ implicating the fundamental fairness and accuracy of the criminal

proceeding.” See also Saffle v. Parks, 494 U.S. 484, 494, 495 (1990). The second exception

was at issue in Sawyer v. Smith, 497 U.S. 227 (1990), in which the Court held the

exception inapplicable to the Caldwell v. Mississippi rule that the Eighth Amendment is

violated by prosecutorial misstatements characterizing the jury’s role in capital sentencing as merely recommendatory. It is “not enough,” the Court in Sawyer explained, “that a

new rule is aimed at improving the accuracy of a trial. More is required. A rule that

qualifies under this exception must not only improve accuracy, but also ‘alter our

understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Id. at 242.

[P. 1595, add to n.167:]

Accord, House v. Bell, 547 U.S. 518, 554-55 (2006) (defendant failed to meet Herrera

standard but nevertheless put forward enough evidence of innocence to meet the less

onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), which “held that prisoners

asserting innocence as a gateway to [habeas relief for claims forfeited under state law]

must establish that, in light of new evidence, ‘it is more likely than not that no reasonable

juror would have found petitioner guilty beyond a reasonable doubt.’” Id. at 2076-2077,

quoting Schlup v. Delo, 513 U.S. at 327.) The Court here distinguished “freestanding”

claims under Herrera from “gateway” claims under Schlup, the difference apparently

being that success on a freestanding claim results in the overturning of a conviction,

whereas success on a gateway claim results in a remand to the trial court to hear the

claim. See also Article III, “Habeas Corpus: Scope of the Writ.”

[P. 1596, add to text after n.172:]

Further, the “substantial and injurious effect standard” is to be

applied in federal habeas proceedings even “when the state

appellate court failed to recognize the error and did not review it

for harmlessness under the ‘harmless beyond a reasonable doubt’

standard set forth in Chapman v. California. . . .”28

[P. 1596, add to text after n.176:]

In Carey v. Musladin, Court noted that it had previously held 29

that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while

dressed in identifiable prison clothes,” but that it had never 30

ruled on the effect on a defendant’s fair trial rights of spectator

conduct. In Carey, the spectator conduct that allegedly affected

the defendant’s right to a fair trial consisted of members of the

victim’s family wearing buttons with the victim’s photograph.

Given the lack of holdings from the Court on the question of
128 AMENDMENT 8–PUNISHMENT FOR CRIME

 127 S. Ct. at 654 (quoting from 28 U.S.C. § 2254(d)(1)). 31

 Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), quoting Carey v. 3 2

Musladin, 127 S. Ct. 649, 654 (2006) (under the Antiterrorism and Effective Death

Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), defendant not entitled to habeas relief).

 Ewing v. California, 538 U.S. 11 (2003). 33

 538 U.S. at 29-30. 34

 538 U.S. at 31. 35

 538 U.S. at 32. The dissenting Justices thought that the sentence was invalid 36

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).

spectator conduct, the Court in Carey found that “it cannot be

said that the state court unreasonabl[y] appli[ed] clearly established Federal law” in denying the defendant relief. Conse- 31

quently, the Antiterrorism and Effective Death Penalty Act of

1996 precluded habeas relief. Similarly, because the Supreme

Court has never ruled on whether, during a plea hearing at which

the defendant pleads guilty, defense counsel’s being linked to the

courtroom by speaker phone, rather than being physically

present, is likely to result in such poor performance that the

Cronic standard for ineffective assistance of counsel should apply,

the Court again could not say “that the state court

‘unreasonabl[y] appli[ed] clearly established Federal law.’”32

Proportionality

[P. 1601, add to text 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. A plurality of three Justices (O’Connor, 33

Kennedy, and Chief Justice Rehnquist) determined that the

sentence was “justified by the State’s public safety interest in

incapacitating and deterring recidivist felons, and amply supported by [the petitioner’s] long, serious criminal record,” and

hence was not the “rare case” of “gross disproportional[ity].”34

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, and Justice Thomas, who asserted that the 35

Cruel and Unusual Punishments Clause “contains no proportionality principle.” Not surprisingly, the Court also rejected a 36

habeas corpus challenge to California’s “three-strikes” law for
AMENDMENT 8–PUNISHMENT FOR CRIME 129

 Lockyer v. Andrade, 538 U.S. 63 (2003). The three-strikes law had been used to 37

impose two consecutive 25-year-to-life sentences on a 37-year-old convicted of two petty

thefts with a prior conviction.

 538 U.S. at 72. 38

failure to clear the statutory hurdle of establishing that the

sentencing was contrary to, or an unreasonable application of,

“clearly established federal law.” Justice O’Connor’s opinion for 37

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.”38

Prisons and Punishment

[P. 1601, add to n.200:]

See also Overton v. Bazzetta, 539 U.S. 126 (2003) (rejecting a challenge to a two-year

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”).

[P. 1601, add to n.201:]

In Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per curiam), the Court overturned a lower

court’s dismissal, on procedural grounds, of a prisoner’s claim of having been denied

medical treatment, with life-threatening consequences. Justice Thomas, however,

dissented on the ground “that the Eighth Amendment’s prohibition on cruel and unusual

punishment historically concerned only injuries relating to a criminal sentence. . . . But

even applying the Court’s flawed Eighth Amendment jurisprudence, I would draw the line

at actual, serious injuries and reject the claim that exposure to the risk of injury can

violate the Eighth Amendment.” Id. at 2200-2201 (internal quotation marks omitted).

[P. 1602, add to n.204:]

In upholding capital punishment by a three-drug lethal injection protocol, despite the risk

that the protocol will not be properly followed and consequently result in severe pain, a

Court plurality found that, although “subjecting individuals to a risk of future harm – not

simply actually inflicting pain – can qualify as cruel and unusual punishment . . . , the

conditions presenting the risk must be ‘sure or very likely to cause serious illness and

needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ . . . [T]o prevail on

such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable

risk of harm’ that prevents prison officials from pleading that they were ‘subjectively

blameless for purposes of the Eighth Amendment.’” Baze v. Rees, 128 S. Ct. 1520, 1530-31

(2008) (emphasis added by the Court). This case is also discussed, supra, under Eighth

Amendment, “Application and Scope.”

131

TENTH AMENDMENT

RESERVED POWERS

Effect of Provision on Federal Powers

– Federal Regulations Affecting State Activities and Instrumentalities

[P. 1620, add to n.71:] 

“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly

disclaims any reservation of that power to the States. . . .” Id. at 156 (quoted with

approval in Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559, 1573 (2007), which held that

a national bank’s state-chartered subsidiary real estate lending business is subject to

federal, not state, law).

See Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440, 446-48 (2004) 1

(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).

 Central Virginia Community College v. Katz, 546 U.S. 356, 362-63 (2006). 2

 A “preferential transfer” was defined as the transfer of a property interest from an 3

insolvent debtor to a creditor, which occurred on or within 90 days before the filing of a

bankruptcy petition, and which exceeds what the creditor would have been entitled to

receive under such bankruptcy filing. 11 U.S.C. § 547(b).

133

ELEVENTH AMENDMENT

STATE SOVEREIGN IMMUNITY

Suits Against States

[P. 1636, add to text at end of section:]

In some of these cases, the state’s immunity is either waived or

abrogated by Congress. In other cases, the 11th Amendment does

not apply because the procedural posture is such that the Court

does not view the suit as being against a state. As discussed

below, this latter doctrine is most often seen in suits to enjoin

state officials. However, it has also been invoked in bankruptcy

and admiralty cases, where the res, or property in dispute, is in

fact the legal target of a dispute.1

The application of this last exception to the bankruptcy area

has become less relevant, because even when a bankruptcy case

is not focused on a particular res, the Court has held that a

state’s sovereign immunity is not infringed by being subject to an

order of a bankruptcy court. “The history of the Bankruptcy

Clause, the reasons it was inserted in the Constitution, and the

legislation both proposed and enacted under its auspices immediately following ratification of the Constitution demonstrate that it

was intended not just as a grant of legislative authority to

Congress, but also to authorize limited subordination of state

sovereign immunity in the bankruptcy arena.” Thus, where a 2

federal law authorized a bankruptcy trustee to recover “preferential transfers” made to state educational institutions, the court 3

held that the sovereign immunity of the state was not infringed

despite the fact that the issue was “ancillary” to a bankruptcy
134 AMENDMENT 11–SUITS AGAINST STATES

 546 U.S. at 373. 4

court’s in rem jurisdiction.4

[P. 1639, add to n.80 after citation to Mt. Healthy City Bd. of

Education v. Doyle:]

; Northern Insurance Company of New York v. Chatham County, 547 U.S. 189, 193 (2006)

– Congressional Withdrawal of Immunity

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

See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding enforcement of consent decree).

Suits Against State Officials

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

In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was under a consent decree

regarding its state Medicaid program, attempted to extend the reasoning of Pennhurst,

arguing that unless an actual violation of federal law had been found by a court, such

court would be without jurisdiction to enforce such decree. The Court, in a unanimous

opinion, declined to so extend the 11th Amendment, noting, among other things, that the

principles of federalism were served by giving state officials the latitude and discretion to

enter into enforceable consent decrees. Id. at 442.
 478 U.S. 186 (1986). 1

 The Court upheld the statute only as applied to the plaintiff, who was a homosex- 2

ual, 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) .

 539 U.S. 558 (2003) (overruling Bowers). 3

135

FOURTEENTH AMENDMENT

Section 1. Rights Guaranteed

DUE PROCESS OF LAW

Definitions

– “Liberty”

[P. 1682, add to n.57:]

But see Chavez v. Martinez, 538 U.S. 760 (2003) (case remanded to federal circuit court to

determine whether coercive questioning of severely injured suspect gave rise to a

compensable violation of due process).

Fundamental Rights (Noneconomic Substantive Due Process)

– Development of the Right of Privacy

[P. 1767, Substitute for portion of paragraph following n.552:]

However, in Bowers v. Hardwick, the Court majority rejected a 1

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. Then, in Lawrence v. Texas, the Supreme 2 3

Court reversed itself, holding that a Texas statute making it a

crime for two persons of the same sex to engage in intimate

sexual conduct violates the Due Process Clause.

– Abortion

[P. 1778, add new footnote at the end of the final paragraph in

the section:]

As to the question of whether an abortion statute that is unconstitutional in some

instances should be struck down in application only or in its entirety, see Ayotte v.

Planned Parenthood of Northern New England, 546 U.S. 320 (2006) (challenge to parental

notification restrictions based on lack of emergency health exception remanded to

determine legislative intent regarding severability of those applications).
136 AMENDMENT 14–RIGHTS GUARANTEED

 127 S. Ct. 1610 (2007). 4

 Justice Kennedy wrote the majority opinion, joined by Justices Roberts, Scalia, 5

Thomas, and Alito, while Justice Ginsburg authored a dissenting opinion, which was

joined by Justices Steven, Souter and Breyer. Justice Thomas also filed a concurring

opinion, joined by Justice Scalia, calling for overruling Casey and Roe.

 18 U.S.C. § 1531(b)(1)(A). The penalty imposed on a physician for a violation of 6

the statute was fines and/or imprisonment for not more than 2 years. In addition, the

physician could be subject to a civil suit by the father (or maternal grandparents, where

the mother is a minor) for money damages for all injuries, psychological and physical,

occasioned by the violation of this section, and statutory damages equal to three times

the cost of the partial-birth abortion.

 127 S. Ct. at 1627. 7

 127 S. Ct. at 1629-31. 8

 As in Stenberg, the statute provided an exception for threats to the life of a 9

woman.

[P. 1778, add to text at end of section:]

Only seven years later, however, the Supreme Court decided

Gonzales v. Carhart, which, while not formally overruling 4

Stenberg, appeared to signal a change in how it would analyze

limitations on abortion procedures. Of perhaps the greatest

significance is that Gonzales was the first case in which the Court

upheld a statutory prohibition on a particular method of abortion.

In Gonzales, the Court, by a 5-4 vote, upheld a federal criminal 5

statute that prohibited an overt act to “kill” a fetus where it had

been intentionally “deliver[ed] . . . [so that] in the case of a

head-first presentation, the entire fetal head is outside the body

of the mother, or, in the case of breech presentation, any part of

the fetal trunk past the navel is outside the body of the mother.”6

The Court distinguished this federal statute from the Nebraska

statute that it had struck down in Stenberg, holding that the

federal statute applied only to the intentional performance of the

less-common “intact dilation and excavation.” The Court found

that the federal statute was not unconstitutionally vague because

it provided “anatomical landmarks” that provided doctors with a

reasonable opportunity to know what conduct it prohibited.7

Further, the scienter requirement (that delivery of the fetus to

these landmarks before fetal demise be intentional) was found to

alleviate vagueness concerns.8

In a departure from the reasoning of Stenberg, the Court

held that the failure of the federal statute to provide a health

exception was justified by congressional findings that such a 9

procedure was not necessary to protect the health of a mother.

Noting that the Court has given “state and federal legislatures
AMENDMENT 14–RIGHTS GUARANTEED 137

127 S. Ct. at 1636. Arguably, this holding overruled Stenberg insofar as Stenberg 10

had allowed a facial challenge to the failure of Nebraska to provide a health exception to

its prohibition on intact dilation and excavation abortions. 530 U.S. at 929-38.

 127 S. Ct. at 1639. 11

 127 S. Ct. at 1633-34. 12

 539 U.S. 558 (2003). 13

wide discretion to pass legislation in areas where there is medical

and scientific uncertainty,” the Court held that, at least in the

context of a facial challenge, such an exception was not needed

where “[t]here is documented medical disagreement whether the

Act’s prohibition would ever impose significant health risks on

women.” The Court did, however, leave open the possibility that 10

as-applied challenges could still be made in individual cases.11

As in Stenberg, the prohibition considered in Gonzales

extended to the performance of an abortion before the fetus was

viable, thus directly raising the question of whether the statute

imposed an “undue burden” on the right to obtain an abortion.

Unlike the statute in Stenberg, however, the ban in Gonzales was

limited to the far less common “intact dilation and excavation”

procedure, and consequently did not impose the same burden as

the Nebraska statute. The Court also found that there was a

“rational basis” for the limitation, including governmental

interests in the expression of “respect for the dignity of human

life,” “protecting the integrity and ethics of the medical profession,” and the creation of a “dialogue that better informs the

political and legal systems, the medical profession, expectant

mothers, and society as a whole of the consequences that follow

from a decision to elect a late-term abortion.”12

– Privacy After Roe: Informational Privacy, Privacy of the Home

or Personal Autonomy?

[P. 1784, substitute for final sentence of paragraph carried over

from p. 1783:]

Although Bowers has since been overruled by Lawrence v. Texas13

based on precepts of personal autonomy, the latter case did not

appear to signal the resurrection of the doctrine of protecting

activities occurring in private places.
138 AMENDMENT 14–RIGHTS GUARANTEED

 431 U.S. 678 (1977). 14

 431 U.S. at 684-91. The opinion of the Court on the general principles drew the 15

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.

 478 U.S. 186 (1986). The Court’s opinion was written by Justice White, and 16

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,

(continued...)

[P. 1784, substitute for second full paragraph and all remaining

paragraphs within the topic:]

Despite the limiting language of Roe, the concept of privacy

still retains sufficient strength to occasion major constitutional

decisions. For instance, in the 1977 case of Carey v. Population

Services International, recognition of the “constitutional protec- 14

tion 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. The Court significantly extended the Griswold-Baird 15

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, where the Court by a 16
AMENDMENT 14–RIGHTS GUARANTEED 139

 (...continued) 16

joined by Justices Brennan and Marshall, added a separate dissenting opinion.

 “[N]one of the rights announced in those cases bears any resemblance to the 17

claimed constitutional right of homosexuals to engage in acts of sodomy.” 478 U.S. at 190-

91.

 Justice White’s opinion for the Court in Hardwick sounded the same opposition to 18

“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.

478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified this 19

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.

 The Court voiced concern that “it would be difficult . . . to limit the claimed right 20

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.

 478 U.S. at 199. The Georgia statute at issue, like most sodomy statutes, 21

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

(continued...)

5-4 vote roundly rejected the suggestion that the privacy cases

protecting “family, marriage, or procreation” extend protection to

private consensual homosexual sodomy, and also rejected the 17

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.” Heavy reliance was placed on the fact that prohibitions 18

on sodomy have “ancient roots,” and on the fact that half of the

states still prohibited the practice. The privacy of the home 19

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.” Interestingly, 20

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.21
140 AMENDMENT 14–RIGHTS GUARANTEED

 (...continued) 21

“family, marriage, motherhood, procreation, and child rearing.” 478 U.S. at 190. See also

Paul v. Davis, 424 U.S. 693, 713 (1976).

 539 U.S. 558 (2003). 22

 539 U.S. at 567. 23

 539 U.S. at 567. 24

 The Court noted with approval Justice Stevens’ dissenting opinion in Bowers v. 25

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.” 539 U.S. at 577-78, citing Bowers v. Hardwick, 478 U.S. at

216.

 The Court reserved this question in Carey, 431 U.S. at 694 n.17 (plurality 26

opinion), although Justices White, Powell, and Stevens in concurrence seemed to see no

(continued...)

Yet, Lawrence v. Texas, by overruling Bowers, brought the 22

outer limits of noneconomic substantive due process into question

by once again using the language of “privacy” rights. Citing the

line of personal autonomy cases starting with Griswold, the

Court found that sodomy laws directed at homosexuals “seek to

control a personal relationship that, whether or not entitled to

formal recognition in the law, is within the liberty of persons to

choose without being punished as criminals. . . . When sexuality

finds overt expression in intimate conduct with another person,

the conduct can be but one element in a personal bond that is

more enduring. The liberty protected by the Constitution allows

homosexual persons the right to make this choice.”23

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,” it also seems to reject reliance on historical notions of 24

morality as guides to what personal relationships are to be

protected. Thus, the parameters for regulation of sexual 25

conduct remain unclear.

For instance, the extent to which the government may

regulate the sexual activities of minors has not been established. Analysis of this question is hampered, however, because 26
AMENDMENT 14–RIGHTS GUARANTEED 141

 (...continued) 26

barrier to state prohibition of sexual relations by minors. Id. at 702, 703, 712.

 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in Carey, 27

431 U.S. at 684-85.

 In the same Term the Court significantly restricted its equal protection doctrine 28

of “fundamental” interests – compelling interest justification by holding that the “key” to

discovering whether an interest or a relationship is a “fundamental” one is not its social

significance, but is whether it is “explicitly or implicitly guaranteed by the Constitution.”

San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). That this limitation has

not been honored with respect to equal protection analysis or due process analysis can be

easily discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court),

with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice Powell concurring).

 Jones v. Flowers, 547 U.S. 220, 235 (2006) (state’s certified letter, intended to 29

notify a property owner that his property would be sold unless he satisfied a tax

delinquency, was returned by the post office marked “unclaimed”; the state should have

(continued...)

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, little elucidates the answers. 27 28

Despite the Court’s decision in Lawrence, there is a question

as to whether the development of noneconomic substantive due

process will proceed under an expansive right of “privacy” or

under the more limited “liberty” set out in Roe. There still

appears to be a tendency to designate a right or interest as a

right of privacy when the Court has already concluded that it is

valid to extend an existing precedent of the privacy line of cases.

Because much of this protection is also now accepted as a “liberty” protected under the due process clauses, however, the

analytical significance of denominating the particular right or

interest as an element of privacy seems open to question.

PROCEDURAL DUE PROCESS: CIVIL

Generally

– The Requirements of Due Process

[P. 1796, add to text after n.697:]

This may include an obligation, upon learning that an attempt at

notice has failed, to take “reasonable followup measures” that

may be available.29
142 AMENDMENT 14–RIGHTS GUARANTEED

 (...continued) 29

taken additional reasonable steps to notify the property owner, as it would have been

practicable for it to have done so.)

 545 U.S. 748 (2005). 30

 545 U.S. at 759. The Court also noted that the law did not specify the precise 31

means of enforcement required; nor did it guarantee that, if a warrant were sought, it

would be issued. Such indeterminancy is not the “hallmark of a duty that is mandatory.”

Id. at 763.

 545 U.S. at 764-65. 32

The Procedure Which is Due Process

– The Property Interest

[P. 1804, add to text after n.747:]

The further one gets from traditional precepts of property,

the more difficult it is to establish a due process claim based on

entitlements. In Town of Castle Rock v. Gonzales, the Court 30

considered whether police officers violated a constitutionally

protected property interest by failing to enforce a restraining

order obtained by an estranged wife against her husband, despite

having probable cause to believe the order had been violated.

While noting statutory language that required that officers either

use “every reasonable means to enforce [the] restraining order” or

“seek a warrant for the arrest of the restrained person,” the Court

resisted equating this language with the creation of an enforceable right, noting a long-standing tradition of police discretion

coexisting with apparently mandatory arrest statutes. Finally, 31

the Court even questioned whether finding that the statute

contained mandatory language would have created a property

right, as the wife, with no criminal enforcement authority herself,

was merely an indirect recipient of the benefits of the governmental enforcement scheme.32

– The Liberty Interest

[P. 1807, add new footnote to end of second paragraph:]

In Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 6-7 (2003), holding that the

state’s posting on the Internet of accurate information regarding convicted sex offenders

did not violate their due process rights, the Court stated that Paul v. Davis “held that

mere injury to reputation, even if defamatory, does not constitute the deprivation of a

liberty interest.”

[P. 1809, add to n.770:]

Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to SuperMax prison, with

attendant loss of parole eligibility and with only annual status review, constitutes an

“atypical and significant hardship”).
AMENDMENT 14–RIGHTS GUARANTEED 143

 538 U.S. 715 (2003). 33

– When Process is Due

[P. 1815, add to text after 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, a citizen paid a 33

$134.50 impoundment fee to retrieve an automobile that had

been towed by the city. When he subsequently sought to challenge the imposition of this impoundment fee, he was unable to

obtain a hearing until 27 days after his car had been towed. The

Court held that the delay was reasonable, as the private interest

affected – the temporary loss of the use of the money – could be

compensated by the addition of an interest payment to any

refund of the fee. Further factors considered were that a 30-day

delay was unlikely to create a risk of significant factual errors,

and that shortening the delay significantly would be administratively burdensome for the city.

Jurisdiction

– Notice: Service of Process

[P. 1834, add to the beginning of n.903:]

Thus, in Jones v. Flowers, 547 U.S. 220 (2006), the Court held that, after a state’s certified

letter, intended to notify a property owner that his property would be sold unless he

satisfied a tax delinquency, was returned by the post office marked “unclaimed,” the state

should have taken additional reasonable steps to notify the property owner, as it would

have been practicable for it to have done so.

Power of the States to Regulate Procedure

– Costs, Damages, and Penalties

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

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

guideposts to hold that a $145 million judgment for refusing to settle an insurance claim

was excessive, in part because it included consideration of conduct occurring in other

states as well as conduct bearing no relation to the plaintiffs’ harm).

[P. 1838, add to n.933:]

The Court has suggested that awards exceeding a single-digit ratio between punitive and

compensatory damages would be unlikely to pass scrutiny under due process, and that the

greater the compensatory damages, the less this ratio should be. State Farm Mut. Auto.

Ins. Co. v. Campbell, 538 U.S. 408, 424 (2003).
144 AMENDMENT 14–RIGHTS GUARANTEED

 Philip Morris USA v. Williams, 127 S. Ct. 1057, 1063 (2007) (punitive damages 34

award overturned because trial court had allowed jury to consider the effect of defendant’s conduct on smokers who were not parties to the lawsuit).

 544 U.S. 622 (2005). 35

544 U.S. at 626. In Illinois v. Allen, 397 U.S. 337, 344 (1970), the Court stated, in 36

dictum, that “no person should be tried while shackled and gagged except as a last

resort.”

 544 U.S. at 630, 631 (internal quotation marks omitted). 37

[P. 1838, add to text after n.933:]

In addition, the “Due Process Clause forbids a State to use a

punitive damages award to punish a defendant for injury that it

inflicts upon nonparties . . . .”34

PROCEDURAL DUE PROCESS – CRIMINAL

The Elements of Due Process

– Fair Trial

[P. 1855, in n.1025, insert before period preceding penultimate

sentence (which begins “Similarly”):]

; Middleton v. McNeil, 541 U.S. 43 (2004) (state courts could assume that an erroneous

jury instruction was not reasonably likely to have misled a jury where other instructions

made correct standard clear)

[P. 1856, add to the end of n.1028:]

Carey v. Musladin, 127 S. Ct. 649 (2006) (effect on defendant’s fair-trial rights of

private-actor courtroom conduct – in this case, members of victim’s family wearing

buttons with the victim’s photograph – has never been addressed by the Supreme Court

and therefore 18 U.S.C. § 2254(d)(1) precludes habeas relief; see Amendment 8, Limitations on Habeas Corpus Review of Capital Sentences).

[P. 1856, add to text after n.1028:]

The use of visible physical restraints, such as shackles, leg

irons or belly chains, in front of a jury, has been held to raise due

process concerns. In Deck v. Missouri, the Court noted a rule 35

dating back to English common law against bringing a defendant

to trial in irons, and a modern day recognition that such measures should be used “only in the presence of a special need.”36

The Court found that the use of visible restraints during the guilt

phase of a trial undermines the presumption of innocence, limits

the ability of a defendant to consult with counsel, and “affronts

the dignity and decorum of judicial proceedings.” Even where 37

guilt has already been adjudicated, and a jury is considering the

application of the death penalty, the latter two considerations

would preclude the routine use of visible restraints. Only in
AMENDMENT 14–RIGHTS GUARANTEED 145

 Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (per curiam), quoting 38

Kyles v. Whitley, 514 U.S. 419, 438, 437 (1995).

special circumstances, such as where a judge has made particu

larized findings that security or flight risk requires it, can such

restraints be used.

[P. 1856, add to n.1030, before period preceding final sentence:]

; Holmes v. South Carolina, 547 U.S. 319 (2006) (overturning rule that evidence of

third-party guilt can be excluded if there is strong forensic evidence establishing

defendant’s culpability)

– Prosecutorial Misconduct

[P. 1857, add to n.1037:]

Nor has it been settled whether inconsistent prosecutorial theories in separate cases can

be the basis for a due process challenge. Bradshaw v. Stumpf, 545 U.S. 175 (2005) (Court

remanded case to determine whether death sentence was based on defendant’s role as

shooter because subsequent prosecution against an accomplice proceeded on the theory

that, based on new evidence, the accomplice had done the shooting).

[P. 1858, add new footnote after the words “prosecutor withheld

it” four lines from bottom of page:]

A statement by the prosecution that it will “open its files” to the defendant appears to

relieve the defendant of his obligation to request such materials. See Strickler v. Greene,

527 U.S. 263, 283-84 (1999); Banks v. Dretke, 540 U.S. 668, 693 (2004).

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

Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the routine destruction of a bag of

cocaine 11 years after an arrest, the defendant having fled prosecution during the

intervening years, does not violate due process).

[P. 1859, add to text after n.1049:]

The Supreme Court has also held that “Brady suppression

occurs when the government fails to turn over even evidence that

is ‘known only to police investigators and not to the prosecutor.’

. . . ‘[T]he individual prosecutor has a duty to learn of any

favorable evidence known to others acting on the government’s

behalf in the case, including the police.’”38

[P. 1859, add to n.1049:]

See also Banks v. Dretke, 540 U.S. 668, 692-94 (2004) (failure of prosecution to correct

perjured statement that witness had not been coached and to disclose that separate

witness was a paid government informant established prejudice for purposes of habeas

corpus review).
146 AMENDMENT 14–RIGHTS GUARANTEED

 548 U.S. 735 (2006). 39

 548 U.S. at 770, 774. 40

– Proof, Burden of Proof, and Presumptions

[P. 1861, add new footnote following “constitute the crime

charged” in first sentence of first full paragraph of text:]

Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases

both involved defendants convicted under state statutes that were subsequently

interpreted in a way that would have precluded their conviction. The Court remanded the

cases to determine if the new interpretation was in effect at the time of the previous

convictions, in which case those convictions would violate due process.

[P. 1862, add to n.1063:]

See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal

firearms case to prove her duress defense by a preponderance of evidence did not violate

due process). In Dixon, the prosecution had the burden of proving all elements of two

federal firearms violations, one requiring a “willful” violation (having knowledge of the

facts that constitute the offense) and the other requiring a “knowing” violation (acting

with knowledge that the conduct was unlawful). Although establishing other forms of

mens rea (such as “malicious intent”) might require that a prosecutor prove that a

defendant’s intent was without justification or excuse, the Court held that neither of the

forms of mens rea at issue in Dixon contained such a requirement. Consequently, the

burden of establishing the defense of duress could be placed on the defendant without

violating due process.

[P. 1862, add to text after n.1064:]

Despite the requirement that states prove each element of a

criminal offense, criminal trials generally proceed with a presumption that the defendant is sane, and a defendant may be

limited in the evidence that he may present to challenge this

presumption. In Clark v. Arizona, the Court considered a rule 39

adopted by the Supreme Court of Arizona that prohibited the use

of expert testimony regarding mental disease or mental capacity

to show lack of mens rea, ruling that the use of such evidence

could be limited to an insanity defense. In Clark, the Court

weighed competing interests to hold that such evidence could be

“channeled” to the issue of insanity due to the controversial

character of some categories of mental disease, the potential of

mental-disease evidence to mislead, and the danger of according

greater certainty to such evidence than experts claim for it.40

– The Problem of the Incompetent or Insane Defendant or

Convict

[P. 1865, add to n.1076:]

The standard for competency to stand trial is whether the defendant “has sufficient

present ability to consult with his lawyer with a reasonable degree of rational understand-
AMENDMENT 14–RIGHTS GUARANTEED 147

 Clark v. Arizona, 548 U.S. 735 (2006). 41

M’Naghten’s Case, 8 Eng. Rep. 718 (1843), states that “[T]o establish a defence on 42

the ground of insanity, it must be clearly proved that, at the time of the committing of

the act, the party accused was laboring under such a defect of reason, from disease of the

mind, as not to know the nature and quality of the act he was doing; or, if he did know it,

that he did not know he was doing what was wrong.” 8 Eng. Rep., at 722.

See Queen v. Oxford, 173 Eng. Rep. 941, 950 (1840) (“If some controlling disease 43

was, in truth, the acting power within [the defendant] which he could not resist, then he

will not be responsible”).

See State v. Jones, 50 N.H. 369 (1871) (“If the defendant had a mental disease 44

which irresistibly impelled him to kill his wife – if the killing was the product of mental

disease in him – he is not guilty; he is innocent – as innocent as if the act had been

produced by involuntary intoxication, or by another person using his hand against his

utmost resistance”).

Clark, 548 U.S. 752. In Clark, the Court considered an Arizona statute, based on 45

the M’Naghten case, that was amended to eliminate the defense of cognitive incapacity.

The Court noted that, despite the amendment, proof of cognitive incapacity could still be

introduced as it would be relevant (and sufficient) to prove the remaining moral

incapacity test. Id. at 753.

 477 U.S. at 416-17. 46

ing – and whether he has a rational as well as factual understanding of the proceedings

against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam), cited with

approval in Indiana v. Edwards, 128 S. Ct. 2379, 2383 (2008). The fact that a defendant is

mentally competent to stand trial does not preclude a court from finding him not mentally

competent to represent himself at trial. Indiana v. Edwards, supra.

[P. 1865, add to text after n.1078:]

Where a defendant is found competent to stand trial, a state

appears to have significant discretion in how it takes account of

mental illness or defect at the time of the offense in determining

criminal responsibility. The Court has identified several tests 41

that are used by states in varying combinations to address the

issue: the M’Naghten test (cognitive incapacity or moral incapacity), volitional incapacity, and the irresistible-impulse test. 42 43 44

“[I]t is clear that no particular formulation has evolved into a

baseline for due process, and that the insanity rule, like the

conceptualization of criminal offenses, is substantially open to

state choice.”45

[P. 1866, add to text after n.1085:]

The Court, however, left “to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction upon its

execution of sentences.”46

In Atkins v. Virginia, the Court held that the Eighth

Amendment also prohibits the state from executing a person who

is mentally retarded, and added, “As was our approach in Ford v.

Wainwright with regard to insanity, ‘we leave to the State[s] the
148 AMENDMENT 14–RIGHTS GUARANTEED

 536 U.S. at 317 (citation omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 47

416-17 (1986)). The Court quoted this language again in Schriro v. Smith, holding that

“[t]he Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to

resolve Smith’s mental retardation claim.” 546 U.S. 6, 7 (2005) (per curiam). States, the

Court added, are entitled to “adopt[ ] their own measures for adjudicating claims of

mental retardation,” though “those measures might, in their application, be subject to

constitutional challenge.” Id.

 494 U.S. 210 (1990) (prison inmate could be drugged against his will if he 4 8

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

 539 U.S. 166 (2003). 49

 For instance, if the defendant is likely to remain civilly committed absent 5 0

medication, this would diminish the government’s interest in prosecution. 539 U.S. at

180.

task of developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.’”47

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, the Court 48

had found that an individual has a significant “liberty interest” in

avoiding the unwanted administration of antipsychotic drugs. In

Sell v. United States, the Court found that this liberty interest 49

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.50

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.

– Guilty Pleas

[P. 1868, substitute for final sentence of n.1092:]

However, this does not mean that a court accepting a guilty plea must explain all the

elements of a crime, as it may rely on counsel’s representations to the defendant.

Bradshaw v. Stumpf, 545 U.S. 175 (2005) (where defendant maintained that shooting was

done by someone else, guilty plea to aggravated manslaughter was still valid, as such

charge did not require defendant to be the shooter). See also Blackledge v. Allison, 431

U.S. 63 (1977) (defendant may collaterally challenge guilty plea where defendant had been

told not to allude to existence of a plea bargain in court, and such plea bargain was not

honored).
AMENDMENT 14–RIGHTS GUARANTEED 149

 Wilkinson v. Austin, 545 U.S. 209, 224 (2005) (assignment to Ohio SuperMax 5 1

prison, with attendant loss of parole eligibility and with only annual status review,

constitutes an “atypical and significant hardship”). In Wilkinson, the Court upheld

Ohio’s multi-level review process, despite the fact that a prisoner was provided only

summary notice as to the allegations against him, a limited record was created, the

prisoner could not call witnesses, and reevaluation of the assignment only occurred at

one 30-day review and then annually. Id. at 219-20.

– Rights of Prisoners

[P. 1874, add to n.1132:]

There was some question as to the standard to be applied to racial discrimination in

prisons after Turner v. Safley, 482 U.S. 78 (1987) (prison regulations upheld if “reasonably

related to legitimate penological interests”). In Johnson v. California, 543 U.S. 499

(2005), however, the Court held that discriminatory prison regulations would continue to

be evaluated under a “strict scrutiny” standard, which requires that regulations be

narrowly tailored to further compelling governmental interests. Id. at 509-13 (striking

down a requirement that new or transferred prisoners at the reception area of a

correctional facility be assigned a cellmate of the same race for up to 60 days before they

are given a regular housing assignment).

[P. 1875, add to n.1136:]

See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding restrictions on prison visitation

by unrelated children or children over whom a prisoner’s parental rights have been

terminated, and all regular visitation for a period following a prisoner’s violation of

substance abuse rules).

[P. 1875, add new footnote to end of fifth sentence of first full

paragraph:]

For instance, limiting who may visit prisoners is ameliorated by the ability of prisoners to

communicate through other visitors, by letter, or by phone. 539 U.S. at 135.

[P. 1877, add new paragraph to text after n.1148, consisting of the

following sentence followed by the material through n.1149:]

Transfer of a prisoner to a high security facility, with an attendant loss of the right to parole, gave rise to a liberty interest,

although the due process requirements to protect this interest are

limited.51

EQUAL PROTECTION OF THE LAWS

Scope and Application

– 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).
150 AMENDMENT 14–RIGHTS GUARANTEED

 The Supreme Court has recognized successful equal protection claims brought by 52

a class-of-one, where a plaintiff alleges that she has been intentionally treated differently

from others similarly situated and that there is no rational basis for that difference.

Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (village’s demand

for an easement as a condition of connecting the plaintiff’s property to the municipal

water supply was irrational and wholly arbitrary). However, the class-of-one theory,

which applies with respect to legislative and regulatory action, does not apply in the

public employment context. Engquist v. Oregon Department of Agriculture, 128 S. Ct.

2146, 2149 (2008) (allegation that plaintiff was fired not because she was a member of an

identified class but simply for “arbitrary, vindictive, and malicious reasons” does not

state an equal protection claim). In Engquist, the Court noted that “the government as

employer indeed has far broader powers than does the government as sovereign,” id. at

2151 (quoting Waters v. Churchill, 511 U.S. 661, 671 (1994)), and that it is a “common-sense realization” that government offices could not function if every employment

decision became a constitutional matter. Id. at 2151, 2156.

Equal Protection: Judging Classifications by Law

– Traditional Standards: Restrained Review

[P. 1906, in fifth line of section, substitute for the period after

“well”:]

, including so-called “class-of-one” challenges.52

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 before period at end of n.1391:]

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

EQUAL PROTECTION AND RACE

Juries

[P. 1958, add new footnote at end of first sentence of second full

paragraph:]

476 U.S. 79, 96 (1986). Establishing a prima facie case can be done through a “wide

variety of evidence, so long as the sum of proffered facts gives rise to an inference of

discriminatory purpose.” Id. at 93-94. A state, however, cannot require that a defendant

prove a prima facie case under a “more likely than not” standard, as the function of the

Batson test is to create an inference and shift the burden to the state to offer race-neutral

reasons for the peremptory challenges. Only then does a court weigh the likelihood that

racial discrimination occurred. Johnson v. California, 543 U.S. 499 (2005).
AMENDMENT 14–RIGHTS GUARANTEED 151

Rice v. Collins, 546 U.S. 333, 338 (2006) (citation omitted). The holding of the 53

case was that, in a habeas corpus action, the Ninth Circuit “panel majority improperly

substituted its evaluation of the record for that of the state trial court.” Id. at 337-38.

Justice Breyer, joined by Justice Souter, concurred but suggested “that legal life without

peremptories is no longer unthinkable” and “that we should reconsider Batson’s test and

the peremptory challenge system as a whole.” Id. at 344.

 Rice v. Collins, 546 U.S. at 338 (citations omitted). “[O]nce it is shown that a 54

discriminatory intent was a substantial or motivating factor in an action taken by a state

actor, the burden shifts to the party defending the action to show that this factor was not

determinative. We have not previously applied this rule in a Batson case, and we need

not decide here whether that standard governs in this context. . . . [Nevertheless,] a

peremptory strike shown to have been motivated in substantial part by a discriminatory

intent could not be sustained based on any lesser showing by the prosecution.” Snyder v.

Louisiana,128 S. Ct. 1203, 1212 (2008) (citation omitted).

 Snyder v. Louisiana, 128 S. Ct. 1203, 1207 (2008) (Supreme Court found prosecu- 55

tion’s race-neutral explanation for its peremptory challenge of a black juror to be

implausible, and found explanation’s “implausibility . . . reinforced by prosecution’s

acceptance of white jurors” whom prosecution could have challenged for the same reason

that it claimed to have challenged the black juror, id. at 1211). In Miller-El v. Dretke, 545

U.S. 231 (2005), the Court found discrimination in the use of peremptory strikes based on

numerous factors, including the high ratio of minorities struck from the venire panel (of

20 blacks, nine were excused for cause and ten were peremptorily struck). Other factors

the Court considered were the fact that the race-neutral reasons given for the peremptory strikes of black panelists “appeared equally on point as to some white jurors who

served,” id. at 241; the prosecution used “jury shuffling” (rearranging the order of panel

members to be seated and questioned) twice when blacks were at the front of the line; the

prosecutor asked different questions of black and white panel members; and there was

evidence of a long-standing policy of excluding blacks from juries.

[P. 1958, add to text after n.1594:]

In fact, “[a]lthough the prosecutor must present a comprehensible

reason, ‘[t]he [rebuttal] does not demand an explanation that is

persuasive, or even plausible’; so long as the reason is not inherently discriminatory, it suffices.” Such a rebuttal having been 53

offered, “the court must then determine whether the defendant

has carried his burden of proving purposeful discrimination. This

final step involves evaluating ‘the persuasiveness of the justification’ proffered by the prosecutor, but the ‘ultimate burden of

persuasion regarding racial motivation rests with, and never

shifts from, the opponent of the strike.’” “On appeal, a trial 54

court’s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous,” but, on more than one

occasion, the Supreme Court has reversed trial courts’ findings of

no discriminatory intent.55

Permissible Remedial Utilization of Racial Classifications

[P. 1970, add to text at end of section:]

By applying strict scrutiny, the Court was in essence
152 AMENDMENT 14–RIGHTS GUARANTEED

 539 U.S. 306 (2003). 56

 539 U.S. 244 (2003). 57

 539 U.S. at 323-26. 58

 539 U.S. at 335. 59

affirming Justice Powell’s individual opinion in Bakke, which

posited a strict scrutiny analysis of affirmative action. There

remained the question, however, whether the Court would

endorse Justice Powell’s suggestion that creating a diverse

student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It

engendered some surprise, then, that the Court essentially

reaffirmed Justice Powell’s line of reasoning in the cases of

Grutter v. Bollinger and Gratz v. Bollinger. 56 57

 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.58

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.” As the university did not rely 59

on quotas, but rather relied on “flexible assessments” of a student’s record, the Court found that the university’s policy was
AMENDMENT 14–RIGHTS GUARANTEED 153

 539 U.S. at 272-73. 60

 438 U.S. at 317. 61

 438 U.S. at 284-85. 62

narrowly tailored to achieve the substantial governmental

interest of achieving a diverse student body.

The law school’s admission policy, however, can be contrasted with the university’s undergraduate admission policy. In

Gratz, the Court evaluated the undergraduate program’s “selection index,” which assigned applicants up to 150 points based on

a variety of factors similar to those considered by the Law School.

Applicants with scores over 100 were usually admitted, while

those with scores of less than 100 fell into categories that could

result in either admittance, postponement, or rejection. Of

particular interest to the Court was the fact that an applicant

was entitled to 20 points based solely upon membership in an

underrepresented racial or ethnic minority group. The policy also

included the “flagging” of certain applications for special review,

and underrepresented minorities were among those whose

applications were flagged.60

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,” the 61

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.62

While institutions of higher education were striving to

increase racial diversity in their student populations, state and

local governments were engaged in a similar effort with respect to

elementary and secondary schools. Whether this goal could be
154 AMENDMENT 14–RIGHTS GUARANTEED

 127 S. Ct. 2738 (2007). Another case involving racial diversity in public schools, 63

Meredith v. Jefferson County Board of Education, was argued separately before the Court

on the same day, but the two cases were subsequently consolidated and both were

addressed in the cited opinion.

 In Seattle, students could choose among 10 high schools in the school district, 64

but, if an oversubscribed school was not within 10 percentage points of the district’s

overall white/nonwhite racial balance, the district would assign students whose race

would serve to bring the school closer to the desired racial balance. 127 S. Ct. at 2747.

In Jefferson County, assignments and transfers were limited when such action would

cause a school’s black enrollment to fall below 15 percent or exceed 50 percent. Id. at

2749.

 Chief Judge Robert’s opinion, joined fully by Justices Scalia, Thomas and Alito, 65

announced the judgment of the Court, while Justice Kennedy, who joined portions of the

Chief Justice’s opinion, filed an opinion concurring in part and concurring in the

judgment. Justice Thomas filed a concurring opinion, while Justice Stevens and Justice

Breyer (joined by Justice Steven, Souter and Ginsburg) authored dissents.

 127 S. Ct. at 2753-54. The Court also noted that, in Grutter, the Court had relied 66

upon “considerations unique to institutions of higher education.” Id. at 2574 (finding

that, as stated in Grutter, 539 U.S. at 329, because of the “expansive freedoms of speech

and thought associated with the university environment, universities occupy a special

niche in our constitutional tradition”).

constitutionally achieved after Grutter and Gratz, however,

remained unclear, especially as the type of individualized admission considerations found in higher education are less likely to

have useful analogies in the context of public school assignments.

Thus, for instance, in Parents Involved in Community Schools v.

Seattle School District No. 1, the Court rejected plans in both 63

Seattle, Washington and Jefferson County, Kentucky, that, in

order reduce what the Court found to be “de facto” racial imbalance in the schools, used “racial tiebreakers” to determine school

assignments. As in Bakke, numerous opinions by a fractured 64

Court led to an uncertain resolution of the issue. 65

In an opinion by Chief Justice Roberts, a majority of the

Court in Parents Involved in Community Schools agreed that the

plans before the Court did not include the kind of individualized

considerations that had been at issue in the university admissions process in Grutter, but rather focused primarily on racial

considerations. Although a majority of the Court found the 66

plans unconstitutional, only four Justices (including the Chief

Justice) concluded that alleviating “de facto” racial imbalance in

elementary and secondary schools could never be a compelling

governmental interest. Justice Kennedy, while finding that the

school plans at issue were unconstitutional because they were not
AMENDMENT 14–RIGHTS GUARANTEED 155

 In his analysis of whether the plans were narrowly tailored to the governmental 67

interest in question, Justice Kennedy focused on a lack of clarity in the administration

and application of Kentucky’s plan and the use of the “crude racial categories” of “white”

and “non-white” (which failed to distinguish among racial minorities) in the Seattle plan.

127 S. Ct. at 2790-91.

 127 S. Ct. at 2760-61. Some other means suggested by Justice Kennedy (which 68

by implication could be constitutionally used to address racial imbalance in schools)

included strategic site selection for new schools, the redrawing of attendance zones, the

allocation of resources for special programs, the targeted recruiting of students and

faculty, and the tracking of enrollments, performance, and other statistics by race.

 Marks v. United States, 430 U.S. 188, 193 (1977) (“[w]hen a fragmented Court 6 9

decides a case and no single rationale enjoys the assent of five Justices, the holding of the

Court may be viewed as that position taken by those Members who concurred in the

judgment on the narrowest grounds.”).

 Crawford v. Marion County Election Board, 128 S. Ct. 1610, 1621 (2008) 7 0

(plurality). See Fourteenth Amendment, “Voting,” infra.

narrowly tailored, suggested in separate concurrence that 67

relieving “racial isolation” could be a compelling governmental

interest. The Justice even envisioned the use of plans based on

individual racial classifications “as a last resort” if other means

failed. As Justice Kennedy’s concurrence appears to represent a 68

narrower basis for the judgment of the Court than does Justice

Robert’s opinion, it appears to represent, for the moment, the

controlling opinion for the lower courts.69

THE NEW EQUAL PROTECTION

Fundamental Interests: The Political Process

– Voter Qualifications

[P. 1997, add a new footnote at the end of the first paragraph of

the section:]

See also Purcell v. Gonzalez, 127 S. Ct. 5, 7 (2007) (per curiam) (vacating an injunction

against “requiring voters to present proof of citizenship when they register to vote and to

present identification when they vote on election day,” id. at 6, but expressing no opinion

on the constitutionality of the requirement).

[P. 1998, add to text after n.1776:]

By contrast, the Court upheld a statute that required voters to

present a government-issued photo identification in order to vote,

as the state had not “required voters to pay a tax or a fee to

obtain a new photo identification.” The Court added that, although obtaining a government-issued photo identification is an

“inconvenience” to voters, it “surely does not qualify as a substantial burden.”70
156 AMENDMENT 14–RIGHTS GUARANTEED

 541 U.S. 267 (2004). 71

 541 U.S. at 285-86. 72

 541 U.S. at 281-90. 73

 541 U.S. at 271 (noting that Article I, § 4 provides that Congress may alter state 74

laws regarding the manner of holding elections for Senators and Representatives).

 541 U.S. at 307-08 (Justice Kennedy, concurring). 75

541 U.S. at 306 (Justice Kennedy, concurring). Although Justice Kennedy 76

admitted that no workable model had been proposed either to evaluate the burden

partisan districting imposed on representational rights or to confine judicial intervention

once a violation has been established, he held out the possibility that such a standard

may emerge, based on either equal protection or First Amendment principles.

– Apportionment and Districting

[P. 2012, add to text after n.1841:]

In the following years, however, litigants seeking to apply

Davis against alleged partisan gerrymandering were generally

unsuccessful. Then, when the Supreme Court revisited the issue

in 2004, it all but closed the door on such challenges. In Vieth v.

Jubelirer, a four-Justice plurality would have overturned Davis 71

v. Bandemer’s holding that challenges to political gerrymandering

are justiciable, but five Justices disagreed. The plurality argued

that partisan considerations are an intrinsic part of establishing

districts, that no judicially discernable or manageable standards 72

exist to evaluate unlawful partisan gerrymandering, and that 73

the power to address the issue of political gerrymandering resides

in Congress.74

Of the five Justices who believed that challenges to political

gerrymandering are justiciable, four dissented, but Justice

Kennedy concurred with the four-Justice plurality’s holding,

thereby upholding Pennsylvania’s congressional redistricting

plan against a political gerrymandering challenge. Justice

Kennedy agreed that the lack” of any agreed upon model of fair

and effective representation” or “substantive principles of fairness in districting” left the Court with “no basis on which to

define clear, manageable, and politically neutral standards for

measuring the particular burden a given partisan classification

imposes on representational rights.” But, though he concurred 75

in the holding, Justice Kennedy held out hope that judicial relief

from political gerrymandering may be possible “if some limited

and precise rationale were found” to evaluate partisan redistricting. Davis v. Bandemer was thus preserved.76

In League of United Latin American Citizens v. Perry, a
AMENDMENT 14–RIGHTS GUARANTEED 157

 548 U.S. 399, 417 (2006). The design of one congressional district was held to 77

violate the Voting Rights Act because it diluted the voting power of Latinos. Id. at 423-

443.

 548 U.S. at 414. 78

 548 U.S. at 418, 417. 79

 548 U.S. at 418. 80

 548 U.S. at 419. 81

 548 U.S. at 420-21. 82

 548 U.S. at 422. 83

widely splintered Supreme Court plurality largely upheld a Texas

congressional redistricting plan that the state legislature had

drawn mid-decade, seemingly with the sole purpose of achieving

a Republican congressional majority. The plurality did not 77

revisit the justiciability question, but examined “whether appellants’ claims offer the Court a manageable, reliable measure of

fairness for determining whether a partisan gerrymander violates

the Constitution.” The plurality was “skeptical . . . of a claim 78

that seeks to invalidate a statute based on a legislature’s unlawful motive but does so without reference to the content of the

legislation enacted.” For one thing, although “[t]he legislature

does seem to have decided to redistrict with the sole purpose of

achieving a Republican congressional majority, . . . partisan aims

did not guide every line it drew.” Apart from that, the 79

“sole-motivation theory” fails to show what is necessary to

identify an unconstitutional act of partisan gerrymandering: “a

burden, as measured by a reliable standard, on the complainants’

representational rights.” Moreover, “[t]he sole-intent standard 80

. . . is no more compelling when it is linked to . . . mid-decennial

legislation. . . . [T]here is nothing inherently suspect about a

legislature’s decision to replace a mid-decade a court-ordered plan

with one of its own. And even if there were, the fact of mid-decade

redistricting alone is no sure indication of unlawful political

gerrymanders.” The plurality also found “that mid-decade 81

redistricting for exclusively partisan purposes” did not in this

case “violate[ ] the one-person, one-vote requirement.” Because 82

ordinary mid-decade districting plans do not necessarily violate

the one-person, one-vote requirement, the only thing out of the

ordinary with respect to the Texas plan was that it was motivated solely by partisan considerations, and the plurality had

already rejected the sole-motivation theory. League of United 83

Latin American Citizens v. Perry thus left earlier Court precedent

essentially unchanged. Claims of unconstitutional partisan
158 AMENDMENT 14–RIGHTS GUARANTEED

 128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief 8 4

Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was

joined by Justices Thomas and Alito, and Justices Souter, Ginsburg, and Breyer

dissented.

 128 S. Ct. at 1622, 1621. 85

 128 S. Ct. at 1616. 86

 “A facial challenge must fail where the statute has a plainly legitimate sweep.” 87

128 S. Ct. at 1623 (internal quotation marks omitted).

 128 S. Ct. at 1624. “[A]ll of the Republicans in the [Indiana] General Assembly 88

voted in favor of [the statute] and the Democrats were unanimous in opposing it.” Id. at

(continued...)

gerrymandering are justiciable, but a reliable measure of what

constitutes unconstitutional partisan gerrymandering remains to

be found.

Poverty and Fundamental Interests: The Intersection of Due

Process and Equal Protection

– Voting

[P. 2028, add to text after n.1917:]

In Crawford v. Marion County Election Board, however, a 84

Court plurality held that a state may require citizens to present a

government-issued photo identification in order to vote. Although

Justice Stevens’ plurality opinion acknowledged “the burden

imposed on voters who cannot afford . . . a birth certificate” (but

added that it was “not possible to quantify . . . the magnitude of

the burden on this narrow class of voters”), it noted that the state

had not “required voters to pay a tax or a fee to obtain a new

photo identification,” and that “the photo-identification cards

issued by Indiana’s BMV are also free.” Justice Stevens also 85

noted that a burden on voting rights, “[h]owever slight . . . must

be justified by relevant and legitimate state interests ‘sufficiently

weighty to justify the limitation,’ and he found three state 86

interests that were sufficiently weighty: election modernization

(i.e., complying with federal statutes that require or permit the

use of state motor vehicle driver’s license applications to serve

various purposes connected with voter registration), deterring

and detecting voter fraud, and safeguarding voter confidence.

Justice Stevens’ opinion, therefore, rejected a facial challenge to

the statute, finding that, even though it was “fair to infer that 87

partisan considerations may have played a significant role in the

decision to enact” the statute, the statute was “supported by valid

neutral justifications.” Justice Scalia, in his concurring opinion, 88
AMENDMENT 14–RIGHTS GUARANTEED 159

 (...continued) 88

1623.

 128 S. Ct. at 1625, 1626. 89

 128 S. Ct. at 1627, 1643 (citations omitted). 90

 538 U.S. 721 (2003). 91

would not only have upheld the statute on its face, but would

have ruled out as-applied challenges as well, on the ground that

“[t]he Indiana photo-identification law is a generally applicable,

nondiscriminatory voting regulation,” and, “without proof of

discriminatory intent, a generally applicable law with disparate

impact is not unconstitutional.” Justice Souter, in his dissent- 89

ing opinion, found the statute unconstitutional because “a State

may not burden the right to vote merely by invoking abstract

interests, be they legitimate or even compelling, but must make a

particular, factual showing that threats to its interests outweigh

the particular impediments it has imposed. . . . The Indiana

Voter ID Law is thus unconstitutional: the state interests fail to

justify the practical limitations placed on the right to vote, and

the law imposes an unreasonable and irrelevant burden on voters

who are poor and old.”90

Section 5. Enforcement

Generally

[P. 2037, delete sole full paragraph (to be inserted in next section)]

State Action

[P. 2041, in text after n.1978, insert sole full paragraph deleted

from p. 2037]

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, the Court considered 91

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
160 AMENDMENT 14–RIGHTS GUARANTEED

 Statutory classifications that distinguish between males and females are subject 9 2

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).

 538 U.S. at 736. 93

 541 U.S. 509 (2004). 94

 42 U.S.C. § 12132. 95

 531 U.S. 356 (2001). 96

twelve weeks of unpaid leave to care for a close relative with a

serious health condition. Noting that the Fourteenth Amendment

could be used to justify prophylactic legislation, the Court accepted the argument that the Act was intended to prevent

gender-based discrimination in the workplace tracing to the

historic stereotype that women are the primary caregivers.

Congress had documented historical instances of discrimination

against women by state governments, and had found that women

were provided maternity leave more often than men were provided paternity leave.

Although there was a relative absence of proof that states

were still engaged in wholesale gender discrimination in employment, the Court distinguished Garrett and Kimel, which had held

Congress to a high standard for justifying legislation attempting

to remedy classifications subject only to rational basis review.

“Because the standard for demonstrating the constitutionality of

a gender-based classification is more difficult to meet than our

rational basis test . . . it was easier for Congress to show a 92

pattern of state constitutional violations.” Consequently, the 93

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 held that Congress could authorize damage suits against 94

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, but since 95

disability is not a suspect class, the application of Title II against

states would seem suspect under the reasoning of Garrett. Here, 96

however, the Court evaluated the case as a limit on access to

court proceedings, which, in some instances, has been held to be
AMENDMENT 14–RIGHTS GUARANTEED 161

See, e.g., Faretta v. California, 422 U.S. 806, 819, n.15 (1975) (a criminal 97

defendant has a right to be present at all stages of a trial where his absence might

frustrate the fairness of the proceedings).

 541 U.S. at 531, 524. 98

 541 U.S. at 541-542 (Rehnquist, C.J., dissenting). 99

541 U.S. at 524-525. Justice Rehnquist, in dissent, disputed Congress’ reliance 100

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 542-43. 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, 429 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).

 546 U.S. 151 (2006). 101

a fundamental right subject to heightened scrutiny under the

Due Process Clause.97

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.” However, as pointed out by both the 98

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. Rather, in an indication of a more robust approach 99

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.100

Congress’ authority under § 5 of the Fourteenth Amendment

to abrogate states’ Eleventh Amendment immunity is strongest

when a state’s conduct at issue in a case is alleged to have

actually violated a constitutional right. In United States v.

Georgia, a disabled state prison inmate who used a wheelchair 101

for mobility alleged that his treatment by the state of Georgia

and the conditions of his confinement violated, among other

things, Title II of the ADA and the Eighth Amendment (as

incorporated by the Fourteenth Amendment). A unanimous Court

found that, to the extent that the prisoner’s claims under Title II

for money damages were based on conduct that independently

violated the provisions of the Fourteenth Amendment, they could
162 AMENDMENT 14–RIGHTS GUARANTEED

 “While the Members of this Court have disagreed regarding the scope of 102

Congress’s ‘prophylactic’ enforcement powers under § 5 of the Fourteenth Amendment,

no one doubts that § 5 grants Congress the power to ‘enforce . . . the provisions’ of the

Amendment by creating private remedies against the States for actual violations of those

provisions.” 546 U.S. at 158 (citations omitted).

be applied against the state. In doing so, the Court declined to

apply the congruent and proportional response test, distinguishing the cases applying that standard (discussed above) as not

generally involving allegations of direct constitutional

violations.102
163

ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE

OR IN PART BY THE SUPREME COURT OF THE UNITED

STATES

[This entry should follow # 135 in the main volume:]

Act of Oct. 27, 1986 (Pub. L. 99-570, § 1366), 100 Stat. 3207-35,

18 U.S.C. § 981(a)(1).

Statute requiring full civil forfeiture of money transported

out of the United States without amounts in excess of $10,000

being reported violates the Excessive Fines Clause of the Eighth

Amendment when $357,144 was required to be forfeited.

United States v. Bajakajian, 524 U.S. 321 (1998).

Justices concurring: Thomas, Stevens, Souter, Ginsburg, Breyer.

Justices dissenting: Kennedy, Rehnquist, C.J., O’Connor, Scalia.

159. Act of March 27, 2002, the Bipartisan Campaign Reform Act

of 2002, Pub. L. 107-155, §§ 213, 318; 2 U.S.C. §§ 315(d)(4),441k.

Section 213 of the Bipartisan Campaign Reform Act of 2002

(BCRA), which amended the Federal Election Campaign Act of

1971 (FECA) to require political parties to choose between

coordinated and independent expenditures during the

post-nomination, pre-election period, is unconstitutional because

it burdens parties’ right to make unlimited independent expenditures. Section 318 of BCRA, which amended FECA to prohibit

persons “17 years old or younger” from contributing to candidates

or political parties, is invalid as violating the First Amendment

rights of minors.

McConnell v. FEC, 540 U.S. 93 (2003).

160. Act of April 30, 2003, Pub. L. 108-21, §§ 401(a)(1),

401(d)(2),117 Stat. 667, 670; 18 U.S.C. §§ 3553(b)(1), 3742(e).

Two provisions of the Sentencing Reform Act, one that

makes the Guidelines mandatory, and one that sets forth standards governing appeals of departures from the mandatory

Guidelines, are invalidated. The Sixth Amendment right to jury

trial limits sentence enhancements that courts may impose

pursuant to the Guidelines.

United States v. Booker, 543 U.S. 220 (2005).

Justices concurring: Breyer, O’Connor, Kennedy, Ginsburg, and

Rehnquist, C.J.

Justices dissenting: Stevens, Souter, Scalia, and Thomas.
164 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

161. Act of March 27, 2002, the Bipartisan Campaign Reform Act

of 2002, Pub. L. 107-155, § 203; 2 U.S.C. § 441b(b)(2).

In McConnell v. FEC, 540 U.S. 93 (2003), the Court held

that § 203 was not facially overbroad, and, in Wisconsin Right to

Life, Inc. v. Federal Election Comm’n, 546 U.S. 410 (2006), it held

that it had not purported to resolved future as-applied challenges.

Now it holds that § 203 is unconstitutional as applied to issue ads

that mention a candidate for federal office, when such ads are not

the “functional equivalent” of express advocacy for or against the

candidate.

Federal Election Commission v. Wisconsin Right to Life, Inc., 127 S. Ct.

2652 (2007).

Justices concurring: Roberts, C.J., Alito, Scalia, Kennedy, and Thomas.

Justices dissenting: Souter, Stevens, Ginsburg, and Breyer.

162. Act of March 27, 2002, the Bipartisan Campaign Reform Act

2002, Pub. L. 107-155, § 319(a) and (b); 2 U.S.C. § 441a-1(a) and

(b).

A subsection of BCRA providing that, if a “self-financing”

candidate for the House of Representatives spends more than a

specified amount, then his opponent may accept more contributions than otherwise permitted, violates the First Amendment. A

subsection with disclosure requirements designed to implement

the asymmetrical contribution limits also violates the First

Amendment.

Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008).

Justices concurring: Alito, Roberts, C.J., Scalia, Kennedy, and Thomas.

Justices dissenting (except as to standing and mootness): Stevens, Souter,

Ginsburg, and Breyer.
165

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 provision of Virginia’s cross-burning statute stating

that a cross burning “shall be prima facie evidence of an intent to

intimidate” is unconstitutional.

Justices concurring: O’Connor, Stevens, Breyer, Rehnquist, C.J.

Justices concurring specially: Souter, Kennedy, Ginsburg.

Justices dissenting: Scalia, Thomas.

938. Lawrence v. Texas, 539 U.S. 558 (2003).

A Texas statute making it a crime for two people of the

same sex to engage in sodomy violates the Due Process Clause of

the Fourteenth Amendment. The right to liberty protected by the

Due Process Clause includes the right of two adults, “with full

and mutual consent from each other, [to] engag[e] in sexual

practices common to a homosexual lifestyle.”

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer.

Justice concurring specially: O’Connor.

Justices dissenting: Scalia, Thomas, Rehnquist, C.J.

939. Blakely v. Washington, 542 U.S. 296 (2004).

Washington State’s sentencing law, which allows a judge to

impose a sentence above the standard range if he finds “substantial and compelling reasons justifying an exceptional sentence,” is

inconsistent with the Sixth Amendment right to trial by jury.

Justices concurring: Scalia, Stevens, Souter, Thomas, and Ginsburg.

Justices dissenting: O’Connor, Breyer, Kennedy, Rehnquist, C.J.

940. Granholm v. Heald, 544 U.S. 460 (2005).

Michigan and New York laws that allow in-state wineries to
166 STATE ACTS HELD UNCONSTITUTIONAL

sell wine directly to consumers but prohibit or discourage

out-of-state wineries from doing so discriminate against interstate commerce in violation of the Commerce Clause, and are not

authorized by the Twenty-first Amendment.

Justices concurring: Kennedy, Scalia, Souter, Ginsburg, and Breyer.

Justices dissenting: Stevens, O’Connor, Thomas, Rehnquist, C.J.

941. Halbert v. Michigan, 545 U.S. 605 (2005).

A Michigan statute making appointment of appellate

counsel discretionary with the court for indigent criminal defendants who plead nolo contendere or guilty is unconstitutional to

the extent that it deprives indigents of the right to the appointment of counsel to seek “first-tier review” in the Michigan Court

of Appeals.

Justices concurring: Ginsburg, Stevens, O’Connor, Kennedy, Souter, and

Breyer.

Justices dissenting: Thomas, Scalia, and Rehnquist, C.J.

942. Roper v. Simmons, 543 U.S. 551 (2005).

Missouri’s law setting the minimum age at 16 for persons

eligible for the death penalty violates the Eighth Amendment’s

ban on cruel and unusual punishment as applied to persons who

were under 18 at the time they committed their offense.

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, and Breyer.

Justices dissenting: O’Connor, Scalia, Thomas, and Rehnquist.

943. Jones v. Flowers, 547 U.S. 220 (2006).

Arkansas statute violated due process when interpreted not

to require the Arkansas Commissioner of State Lands to take

additional reasonable steps to notify a property owner of intent to

sell the property to satisfy a tax delinquency, after the initial

notice was returned by the Post Office unclaimed.

Justices concurring: Roberts, C.J., Stevens, Souter, Ginsburg, and Breyer.

Justices dissenting: Thomas, Scalia, Kennedy.

944. Randall v. Sorrell, 548 U.S. 230 (2006).

Vermont campaign finance statute’s limitations on both

expenditures and contributions violated freedom of speech.

Justices concurring: Breyer, Roberts, C.J., Alito, Kennedy, Thomas,

Scalia.

Justices dissenting: Stevens, Souter, Ginsburg.

945. Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1659 (2007).

Texas capital sentencing statute impermissibly prevented
STATE ACTS HELD UNCONSTITUTIONAL 167

sentencing “jurors from giving meaningful consideration to

constitutionally relevant mitigating evidence.”

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito.

946. Brewer v. Quarterman, 127 S. Ct. 1706, 1709 (2007).

“Texas capital sentencing statute impermissibly prevented

sentencing jury from giving meaningful consideration to constitutionally relevant mitigating evidence.”

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: Roberts, C.J., Scalia, Thomas, Alito.

947. Kennedy v. Louisiana, 128 S. Ct. 2641, 2641 (2008)

Louisiana’s statute that permits the death penalty for rape

of a child under 12 is unconstitutional because the Eighth

Amendment bars “the death penalty for the rape of a child where

the crime did not result, and was not intended to result, in the

death of the victim.”

Justices concurring: Kennedy, Stevens, Souter, Ginsburg, Breyer.

Justices dissenting: Alito, Roberts, C.J., Scalia, Thomas.

948. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

A District of Columbia statute that banned virtually all

handguns, and required that any other type of firearm in the

home be dissembled or bound by a trigger lock at all times

violates the Second Amendment, which the Court held to protect

individuals’ right to bear arms.

Justices concurring: Scalia, Roberts, C.J., Kennedy, Thomas, Alito.

Justices dissenting: Stevens, Souter, Ginsburg, Breyer.

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
168 STATE ACTS HELD UNCONSTITUTIONAL

disclose information about policies it or “related” companies sold

in Europe between 1920 and 1945, is preempted as interfering

with the Federal Government’s conduct of foreign relations.

Justices concurring: Souter, O’Connor, Kennedy, Breyer, and Rehnquist,

C.J.

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

227. Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).

Suits brought in state court alleging that HMOs violated

their duty under the Texas Health Care Liability Act “to exercise

ordinary care when making health care treatment decisions” are

preempted by ERISA § 502(a), which authorizes suit “to recover

benefits due [a participant] under the terms of his plan.”

228. Gonzales v. Raich, 545 U.S. 1 (2005).

California law allowing use of marijuana for medical purposes is preempted by the Controlled Substances Act’s categorical

prohibition of the manufacture and possession of marijuana.

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, Breyer.

Justices dissenting: O’Connor, Thomas, Rehnquist, C.J.

229. Arkansas Department of Health and Human Services v. Ahlborn,

547 U.S. 268 (2006).

Arkansas statute that imposes lien on tort settlements in an

amount equal to Medicaid costs, even when Medicaid costs exceed

the portion of the settlement that represents medical costs, is

preempted by the Federal Medicaid law insofar as the Arkansas

statute applies to amounts other than medical costs.

230. League of United Latin American Citizens v. Perry, 548 U.S. 399

(2006).

Part III of the opinion found a Texas redistricting statute to

violate the federal Voting Rights Act because it diluted the voting

power of Latinos.

Justices concurring in Part III: Kennedy, Stevens, Souter, Ginsburg,

Breyer.

Justice dissenting from Part III: Roberts, C.J., Alito, Scalia, Thomas.

231. Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007).

A national bank’s state-chartered subsidiary real estate

lending business is subject to federal, not state, law.

Justices concurring: Ginsburg, Alito, Breyer, Kennedy, Souter.

Justices dissenting: Stevens, Roberts, C.J., Scalia.
169

SUPREME COURT DECISIONS OVERRULED BY

SUBSEQUENT DECISION

Overruling Case

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

Overruled Case(s)

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,

541 U.S. 36 (2004).

Ohio v. Roberts, 448 U.S. 56

(1980).

226. Roper v. Simmons, 543 U.S.

551 (2005).

Stanford v. Kentucky, 492 U.S.

361 (1989).

227. Central Virginia Community College v. Katz, 546 U.S.

356 (2006).

Hoffman v. Connecticut Dep’t of

Income Maintenance, 492 U.S.

96 (1989).

228. Parents Involved in Community Schools v. Seattle School

District No. 1, 127 S. Ct. 2738

(2007).

School Comm. of Boston v. Bd.

of Education, 389 U.S. 572

(1968).

229. Gonzales v. Carhart, 127 S.

Ct. 1610 (2007).

Stenberg v. Carhart, 530 U.S.

914 (2000).

171

TABLE OF CASES

Abood v. Detroit Board of Education, 431 U.S. 209 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62-63

Abdul-Kabir v. Quarterman,127 S. Ct. 1654 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 166

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

Adamo Wrecking Co. v. United States, 434 U.S. 275 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 168

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Agins v. City of Tiburon, 447 U.S. 255 (1980).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 100

Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935). . . . . . . . . . . . . . . . . . 46

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).. . . . . . . . . . . . . . . . . . . . . . 51

Allen v. Alleghany Co., 196 U.S. 458 (1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Almendarez-Torres v. United States, 523 U.S. 224 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007).. . . . . . . . . . . . 78

American Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29, 167

American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545 U.S. 429 (2005). ............. 9

Apprendi v. New Jersey, 530 U.S. 466 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103-106

Arizona v. Fulminante, 499 U.S. 279 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Arkansas Dep’t of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006). . . . . . . . . . . . . 168

Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).. . . . . . . . . . . . . . . 81

Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006). ................. 5

Arnett v. Kennedy, 416 U.S. 134 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Ashcroft v. ACLU, 542 U.S. 656 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Atkins v. Virginia, 536 U.S. 304 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 124-126, 147, 169

Ayers v. Belmontes, 127 S. Ct. 469 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006). . . . . . . . . . . . . . 135

Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984). ..................................... 9

Baker v. General Motors Corp., 522 U.S. 222 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Banks v. Dretke, 540 U.S. 668 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bates v. State Bar of Arizona, 433 U.S. 350 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Batson v. Kentucky, 476 U.S. 79 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 151

Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Baze v. Rees, 128 S. Ct. 1520 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 120, 129

Beard v. Banks, 548 U.S. 521 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Bell v. Cone, 543 U.S. 447 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

Berman v. Parker, 348 U.S. 26 (1954). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Bigelow v. Virginia, 421 U.S. 809 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55-56

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).. . . . . . . . . . . . . . . . . . . . . . . 42

Blackledge v. Allison, 431 U.S. 63 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Blakely v. Washington, 542 U.S. 296 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105-106, 109, 165

Bloomer v. McQuewan, 55 U.S. (14 How.) 539 (1852). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

BMW v. Gore, 517 U.S. 599 (1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . 56

Board of Education v. Earls, 536 U.S. 822 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

Board of Trustees v. Fox, 492 U.S. 469 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Board of Trustees v. Garrett, 531 U.S. 356 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Bonaparte v. Tax Court, 104 U.S. 592 (1882). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Bond v. Hume, 243 U.S. 15 (1917). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Books v. Elkhart County, 410 F.3d 857 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
172 TABLE OF CASES

Boumediene v. Bush, 128 S. Ct. 2229 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 36

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986). . . . . . . . . . . . . . . . . . . . 42

Bowers v. Hardwick, 478 U.S. 186 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 138-140, 169

Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. 465 (1888).......................... 8

Boy Scouts of America v. Dale, 530 U.S. 640 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 75

Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). . . . . . . . . . . . . . . . . . . . . . 22, 37

Bradshaw v. Stumpf, 545 U.S. 175 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145, 148

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Bradley v. Fisher, 80 U.S. 335 (1872). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Brady v. Maryland, 373 U.S. 83 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Branzburg v. Hayes, 408 U.S. 665 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Breard v. Greene, 523 U.S. 371, 375 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Brendlin v. California, 127 S. Ct. 2400 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Brewer v. Quarterman, 127 S. Ct. 1706 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 167

Brigham City, Utah v. Stuart, 547 U.S. 398 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Broadrick v. Oklahoma, 413 U.S. 601 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 55

Brosseau v. Haugen, 543 U.S. 194 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Brown v. Illinois, 422 U.S. 590 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Brown v. Legal Found. of Washington, 538 U.S. 216 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 98

Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827). .................................... 8

Brown v. Sanders, 546 U.S. 212 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986). ......... 9

Buckley v. Valeo, 424 U.S. 1 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 65, 66, 69, 70

Bunkley v. Florida, 538 U.S. 835 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Bush v. Lucas, 462 U.S. 367 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . 10

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Caldwell v. Mississippi, 472 U.S. 320 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

California v. Deep Sea Research, Inc., 523 U.S. 491 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

California Democratic Party v. Jones, 530 U.S. 567 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Caplin & Drysdale v. United States, 491 U.S. 617 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Carey v. Musladin, 127 S. Ct. 649 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 127, 128, 144

Carey v. Population Services International, 431 U.S. 678 (1977). . . . . . . . . . . . . . . . . 138, 140, 141

Carroll v. Lanza, 349 U.S. 408 (1955). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Central Virginia Community College v. Katz, 546 U.S. 356 (2006).. . . . . . . . . . . . . . . . . . . 133, 169

Chapman v. California, 386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 127

Chappell v. Wallace, 462 U.S. 296 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Chavez v. Martinez, 538 U.S. 760 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 135

Cheney v. United States District Court, 542 U.S. 367 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887). . . . . . . . . . . . . . . . . . . . . . . . . . 45

Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Chinese Exclusion Case, 130 U.S. 581 (1889).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . 53

Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003). ..................................... 6

City of Boerne v. Flores, 521 U.S. 507 (1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54, 161

City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 188 (2003). . . . . . . . . . . 149

City of Houston v. Hill, 482 U.S. 451 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 59

City of Los Angeles v. David, 538 U.S. 715 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999).. . . . . . . . . . . . . . 100

City of San Diego v. Roe, 543 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Civil Serv. Corp. v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973). . . . . . . . . . . . . . . . . . 30

Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917). ............................. 8

Clark v. Allen, 331 U.S. 503 (1947).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Clark v. Arizona, 548 U.S. 735 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146, 147

Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).. . . . . . . . . . . . . . . . . . . . . . 57
TABLE OF CASES 173

Clemons v. Mississippi, 494 U.S. 738 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Clingman v. Beaver, 544 U.S. 581 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Clinton v. Jones, 520 U.S. 681 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Coker v. Georgia, 433 U.S. 584 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 126

Colepaugh v. Looney, 235 F.2d 429 (10th Cir. 1956) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003). . . . . . . . . . . . . . . . . . . . . . . 142

Connick v. Myers, 461 U.S. 138 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64-65

Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 53

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Craig v. Boren, 429 U.S. 190 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Crawford v. Marion County Election Board, 128 S. Ct. 1610 (2008). . . . . . . . . . . . . . . . . . . 155, 158

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110-111, 169

Crosby v. National Foreign Trade Council, 530 U.S. 363 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Cunningham v. California, 127 S. Ct. 856 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107-108

Cutter v. Wilkinson, 544 U.S. 709 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 54

Cuyler v. Sullivan, 446 U.S. 335 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40

Dames & Moore v. Regan, 453 U.S. 654 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Danforth v. Minnesota,128 S. Ct. 1029 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 126

Davenport v. Washington Education Ass’n, 127 S. Ct. 2372 (2007).. . . . . . . . . . . . . . . . . . . . . 62-63

Davis v. Bandemer, 478 U.S. 109 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Davis v. Federal Election Commission, 128 S. Ct. 2759 (2008). . . . . . . . . . . . . . . . . . 40, 66, 70, 164

Davis v. Washington, 547 U.S. 813 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Deck v. Missouri, 544 U.S. 622 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Demore v. Kim, 538 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Department of Revenue v. Beam Distillers, 377 U.S. 341 (1964). .......................... 8

Department of Revenue of Kentucky v. Davis, 128 S. Ct. 1801 (2008). . . . . . . . . . . . . . . . . . . . . . 10

Devenpeck v. Alford, 543 U.S. 146 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

District of Columbia v. Heller, 128 S. Ct. 2759 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83-84, 167

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).. . . . . . . . . . . . . . . . . . . . 43

Dixon v. United States, 548 U.S. 1 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Dobbert v. Florida, 432 U.S. 282 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Dolan v. City of Tigard, 512 U.S. 374 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99-100

Doran v. Salem Inn, 422 U.S. 922 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Doremus v. Board of Education, 342 U.S. 429 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40

Dunaway v. New York, 442 U.S. 200 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Duro v. Reina, 495 U.S. 676 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Dusky v. United States, 362 U.S. 402 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Edenfield v. Fane, 507 U.S. 761 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 76

Edwards v. California, 314 U.S. 160 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Eisenstadt v. Baird, 405 U.S. 438 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

Eldred v. Ashcroft, 537 U.S. 186 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 53

Employment Division v. Smith, 494 U.S. 872 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964). . . . . . . . . . . . . . . . . . . . . 101

Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146 (2008). . . . . . . . . . . . . . . . . . . . 150

Enmund v. Florida, 458 U.S. 782 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Erickson v. Pardus, 127 S. Ct. 2197 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Erie v. Pap’s A.M., 529 U.S. 277 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Estelle v. Williams, 425 U.S. 501 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Eunson v. Dodge, 85 U.S. (18 Wall.) 414 (1873). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Ewing v. California, 538 U.S. 11 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Ex parte Quirin, 317 U.S. 1 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). . . . . . . . . . . . . . . . . . . . 43

Faretta v. California, 422 U.S. 806 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 161

Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

FDIC v. Meyer, 510 U.S. 471 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
174 TABLE OF CASES

Federal Election Commission v. Beaumont, 539 U.S. 146 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 67

Federal Election Commission v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986). . . . . . . . . . . . 67

Federal Election Commission v. National Right to Work, 459 U.S. 197 (1982). . . . . . . . . . . . . . . 67

Federal Election Commission v. Wisc. Right to Life, 127 S. Ct. 2652 (2007) . . . . . . . . . . . . 69, 164

Fellers v. United States, 540 U.S. 519 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315 (1902). . . . . . . . . . . . . . . . . . . . . . 117

Finch v. United States, 433 U.S. 676 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Fiore v. White, 528 U.S. 23 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

Fitzgerald v. Racing Ass’n of Central Iowa, 539 U.S. 103 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . 150

Flast v. Cohen, 392 U.S. 83 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 39

Florida v. Bostick, 501 U.S. 429 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Florida v. Nixon, 543 U.S. 175 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Fong Foo v. United States, 369 U.S. 141 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945). . . . . . . . . . . . . . . . 169

Ford v. Wainwright, 477 U.S. 399 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 124, 147, 148

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fox Television Stations, Inc. v. FCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46

Freedman v. Maryland, 380 U.S. 51 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Frew v. Hawkins, 540 U.S. 431 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Frisby v. Schultz, 487 U.S. 474 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-57

Fry v. Pliler, 127 S. Ct. 2321 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 127

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Garcetti v. Ceballos, 547 U.S. 410 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-64

Georgia v. Randolph, 547 U.S. 103 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Giles v. California, 128 S. Ct. 2678 (2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Ginsberg v. New York, 390 U.S. 629 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58

Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . 64

Glenn v. Garth, 147 U.S. 360 (1893). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Godinez v. Moran, 509 U.S. 389 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Gonzales v. Carhart, 127 S. Ct. 1610. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136-137, 169

Gonzales v. Raich, 545 U.S. 1 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6-7, 168

Graham v. John Deere Co., 383 U.S. 1 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Granholm v. Heald, 543 U.S. 220 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 165

Gratz v. Bollinger, 539 U.S. 244 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152-154

Gregg v. Georgia, 428 U.S. 153 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Griswold v. Connecticut, 381 U.S. 479 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138, 140

Groh v. Ramirez, 540 U.S. 551 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Grutter v. Bollinger, 539 U.S. 306 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152-154

Halbert v. Michigan, 545 U.S. 605 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

Hamdan v. Rumsfeld, 548 U.S. 557 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19, 22, 32, 36

Hamdi v. Rumsfeld, 542 U.S. 507 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 96

Harmelin v. Michigan, 501 U.S. 957 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 128

Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985). . . . . . . . . . . . . . . . . . . . . 14

Harris v. United States, 536 U.S. 545 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Harrison v. United States, 392 U.S. 219 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Hawke v. Smith, 253 U.S. 221 (1920). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 49

Healy v. The Beer Institute, 491 U.S. 324 (1989).. ...................................... 9

Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct. 2553 (2007). . . . . . . . . . . . . . . . . 38, 39

Herrera v. Collins, 506 U.S. 390 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 127

Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Hildwin v. Florida, 490 U.S. 638 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 47

Hines v. Davidowitz, 312 U.S. 52 (1941).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96 (1989). . . . . . . . . . . . . . . . . 169

Holden v. Minnesota, 137 U.S. 483 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 49

Holmes v. Hurst, 174 U.S. 82 (1899).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
TABLE OF CASES 175

Holmes v. South Carolina, 547 U.S. 319 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

House v. Bell, 547 U.S. 518 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 127

Hudson v. Michigan, 547 U.S. 586 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995). . . . . . . . . . . . . . . . . . . . . . . 59

Hutto v. Finney, 437 U.S. 678 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Idaho v. Wright, 497 U.S. 805 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600 (2003). . . . . . . . . . . . . . 59, 81

Illinois v. Allen, 397 U.S. 337 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Illinois v. Caballes, 543 U.S. 405 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Illinois v. Fisher, 540 U.S. 544 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Illinois v. Gates, 462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Illinois v. Lidster, 540 U.S. 419 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Illinois v. Rodriguez, 497 U.S. 177 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Indiana v. Edwards, 128 S. Ct. 2379 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 147

Ingartua-De La Rosa v. United States, 417 F.3d 145 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . 25

In re Rahrer, 140 U.S. 545 (1891). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

In re R.M.J., 455 U.S. 191 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

In re Young, 141 F.3d 854 (8th Cir. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006).. . . . . . . . . . . . . . 70, 71

INS v. Chadha, 462 U.S. 919 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 49

INS v. St. Cyr, 533 U.S. 289 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Iowa v. Tovar, 541 U.S. 77 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

James v. United States, 127 S. Ct. 1586 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

Jinks v. Richland County, 538 U.S. 456 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Johanns v. Livestock Marketing Ass’n, 544 U.S. 550 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Johnson v. California, 543 U.S. 499 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 150

Johnson v. Eisentrager, 339 U.S. 763 (1950). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Johnson v. New York Life Ins. Co., 187 U.S. 491 (1903). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Johnson v. Robison, 415 U.S. 361 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Jones v. Barnes, 463 U.S. 745 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Jones v. Flowers, 547 U.S. 220 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 143, 146

Kane v. Garcia Espitia, 546 U.S. 9 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Kansas v. Marsh, 548 U.S. 163 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

Kaupp v. Texas, 538 U.S. 626 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 86

Kelo v. City of New London, 545 U.S. 469 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 122, 123, 167

Kidd v. Pearson, 128 U.S. 1 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Kimbrough v. United States, 128 S. Ct. 558 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Kirk v. Louisiana, 536 U.S. 635 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Kowalski v. Tesmer, 543 U.S. 123 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Kryger v. Wilson, 242 U.S. 171 (1916). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Kyles v. Whitley, 514 U.S. 419 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Lance v. Coffman, 127 S. Ct. 1194 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Lapides v. Board of Regents, 535 U.S. 613 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Lawrence v. Texas, 539 U.S. 558 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . 135, 137, 140-141, 165, 169

League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006). . . . . . . . . 3, 156-157, 168

Lee v. Illinois, 476 U.S. 530 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Leisy v. Hardin, 135 U.S. 100 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Lindsey v. Washington, 301 U.S. 397 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99, 100

Lloyd v. Matthews, 155 U.S. 222 (1894). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Locke v. Davey, 540 U.S. 712 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53

Lockyer v. Andrade, 538 U.S. 63 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). . . . . . . . . . . . . . . . . 98, 100

Los Angeles County v. Rettele, 127 S. Ct. 1989 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 87

Lozada v. Deeds, 498 U.S. 430 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
176 TABLE OF CASES

Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . 100

Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Mallory v. United States, 354 U.S. 449 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Marks v. United States, 430 U.S. 188 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Maryland v. Pringle, 540 U.S. 366 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 89

Massachusetts v. Environmental Protection Agency, 127 S. Ct. 1438 (2007). . . . . . . . . . . . . . . . . 38

Massachusetts v. Mellon, 262 U.S. 447 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Massiah v. United States, 377 U.S. 201 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Matter of Farber, 394 A.2d 330 (N.J. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

McConnell v. Federal Election Commission, 540 U.S. 93 (2003). . . . . . . . . . . . . . . . 67, 69, 163, 164

McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

McDaniel v. Paty, 435 U.S. 618 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

McMillan v. Pennsylvania, 477 U.S. 79 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 105

McNabb v. United States, 318 U.S. 332 (1943). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498 (2008).. ................... 9

Medellin v. Texas, 128 S. Ct. 1346 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-25

Medimmune, Inc. v. Genetech, Inc., 127 S. Ct. 764 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 41

Medley, Petitioner, 134 U.S. 160 (1890). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Meese v. Keene, 481 U.S. 465 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).. . . . . . . . . . . . . . . . . . 14

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Michigan v. Summers, 452 U.S. 692 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Michigan v. Tucker, 417 U.S. 433 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Middleton v. McNeil, 541 U.S. 43 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Miller-El v. Dretke, 545 U.S. 231 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Miranda v. Arizona, 384 U.S. 436 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Missouri v. Seibert, 542 U.S. 600 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Mistretta v. United States, 488 U.S. 361 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

M’Naghten’s Case, 8 Eng. Rep. 718 (1843). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Morse v. Frederick, 547 U.S. 410 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Muehler v. Mena, 544 U.S. 93 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Mugler v. Kansas, 123 U.S. 623 (1887).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Munaf v. Geren, 128 S. Ct. 2207 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933).. . . . . . . . . . . . . . . . . . . . . . . . . . 33, 41

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . 55

National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999).. . . . . . . . . . . . . . . . . . . . 29

National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003). . . . . . . . . . . . . . . . . . . . . . . . 159

Nevada v. Hall, 440 U.S. 410 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

New York v. Belton, 453 U.S. 454 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

New York v. Ferber, 458 U.S. 747 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 78

New York State Bd. of Elections v. Lopez Torres, 128 S. Ct. 791 (2008).. . . . . . . . . . . . . . . . . . . . 61

New York Times v. Jascalevich, 439 U.S. 1301 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000). . . . . . . . . . . . . . . . . . . . . . . . . 58

Nollan v. California Coastal Commission, 483 U.S. 825 (1987).. . . . . . . . . . . . . . . . . . . . . . . . 99-100

Northern Insurance Company of NY v. Chatham County, 547 U.S. 189 (2006). . . . . . . . . . . . . . 134

O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 53-54

Ohio v. Roberts, 448 U.S. 56 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 169

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Oregon v. Elstad, 470 U.S. 298 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Oregon v. Guzek, 546 U.S. 517 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

Overton v. Bazzetta, 539 U.S. 126 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 73, 129, 149

Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939). . . . . . . . . . . . . . 46

Pacific Gas & Electric Co. v. Public Utilities Comm’n, 475 U.S. 1 (1986). . . . . . . . . . . . . . . . . . . . 59
TABLE OF CASES 177

Palazzolo v. Rhode Island, 533 U.S. 606 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Panetti v. Quarterman, 127 S. Ct. 2842 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Parents Involved in Community Schools v. Seattle School District No. 1,

127 S. Ct. 2738 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 169

Parke v. Raley, 506 U.S. 20 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Parker v. Levy, 417 U.S. 733 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Paul v. Davis, 424 U.S. 693 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 142

Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).. . . . . . . . . . . . . . . . . . . . . 98, 100

Pennell v. City of San Jose, 485 U.S. 1 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). . . . . . . . . . . . . . . . . . . 134

Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917). . . . . . . . . . . . . . . . . . . . 46

Penry v. Lynaugh, 492 U.S. 302 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 169

Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003). . . . . . . . . . . . . . . 10

Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Pickering v. Board of Education, 391 U.S. 563 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64

Pierce County v. Guillen, 537 U.S. 129 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pierson v. Ray, 386 U.S. 547 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833 (1992).. . . . . . . . . . . . . . . . . . 136

Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702 (D. Del. 1998). . . . . . . . . . . . . . . 58

Procunier v. Martinez, 416 U.S. 396 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Pulliam v. Allen, 466 U.S. 522 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Purcell v. Gonzalez, 127 S. Ct. 5 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . 81

Queen v. Oxford, 173 Eng. Rep. 941 (1840). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Randall v. Brigham, 74 U.S. 523 (1869). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Randall v. Sorrell, 548 U.S. 230 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 166

Rasul v. Bush, 542 U.S. 466 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23, 35-37

Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978). . . . . . . . . . . . . . . . . . . . . . 152-154

Reno v. ACLU, 521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56, 80, 81

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Rhodes v. Iowa, 170 U.S. 412 (1898). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Rice v. Collins, 546 U.S. 333 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Riley v. National Fed’n of the Blind of North Carolina, 487 U.S. 781 (1988). . . . . . . . . . . . . . . . . 59

Ring v. Arizona, 536 U.S. 584 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 169

Rita v. United States, 127 S. Ct. 2456 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108

Roe v. Flores-Ortega, 528 U.S. 470 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Roe v. Wade, 410 U.S. 113 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 138, 141

Rompilla v. Beard, 545 U.S. 374 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Roper v. Simmons, 543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125-126, 166, 169

Rosato v. Superior Court, 124 Cal. Rptr. 427 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114-115

Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006). . . . . . . . . . . . 60, 74

Rumsfeld v. Padilla, 542 U.S. 426 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 37

Rust v. Sullivan, 500 U.S. 173 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Sable Communications of California v. FCC, 492 U.S. 115 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . 56

Sabri v. United States, 541 U.S. 600 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 15

Saffle v. Parks, 494 U.S. 484 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

San Remo Hotel, L.P. v. City and County of San Francisco, 545 U.S. 323 (2005).. . . . . . . . . 100-101

Sanabria v. United States, 437 U.S. 54 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 94

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Sawyer v. Smith, 497 U.S. 227 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

Schlup v. Delo, 513 U.S. 298 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

School Comm. of Boston v. Bd. of Education, 389 U.S. 572 (1968). . . . . . . . . . . . . . . . . . . . . . . . 169
178 TABLE OF CASES

Schriro v. Landrigan, 127 S. Ct. 1933 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Schriro v. Summerlin, 542 U.S. 348 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Schriro v. Smith, 546 U.S. 6 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 124, 148

Schweiker v. Chilicki, 487 U.S. 412 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Scott v. Harris, 127 S. Ct. 1769 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 91

Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984). . . . . . . . . . . . . . . 56

Seese v. Bethlehem Steel Co., 168 F.2d 58 (4th Cir. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Sell v. United States, 539 U.S. 166 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Sherbert v. Verner, 374 U.S. 398 (1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Smalis v. Pennsylvania, 476 U.S. 140 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Smith v. Doe, 538 U.S. 84 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Smith v. Massachusetts, 543 U.S. 462 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Smithsonian Institution v. St. John, 214 U.S. 19 (1909). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Snyder v. Louisiana, 128 S. Ct. 1203 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

Snyder v. Massachusetts, 291 U.S. 97 (1934).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Solem v. Helm, 463 U.S. 277 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984).. . . . . . . . . . . . . . . . . . . . . 13

South Carolina v. Katzenbach, 383 U.S. 301 (1966).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Spaziano v. Florida, 468 U.S. 447 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Sprietsma v. Mercury Marine, 537 U.S. 51 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Sprint Communications Co. v. APCC Services, Inc., 128 S. Ct. 2531 (2008).. . . . . . . . . . . . . . . . . 40

Stanford v. Kentucky, 492 U.S. 361 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 169

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). . . . . . . . . . . . . . . . . . . . . . . . 143

State v. Jones, 50 N.H. 369 (1871). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Stenberg v. Carhart, 530 U.S. 914 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136-137, 169

Stogner v. California, 539 U.S. 607 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 165

Stone v. Graham, 449 U.S. 39, 41 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Strickland v. Washington, 466 U.S. 668 (1984) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114

Strickler v. Greene, 527 U.S. 263 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Stump v. Sparkman, 435 U.S. 349 (1978).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Supreme Court of Virginia v. Consumers Union of the U.S., 446 U.S. 719 (1980) . . . . . . . . . . . . 35

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,

535 U.S. 302 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 100

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 61

Taylor v. Alabama, 457 U.S. 687 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Teague v. Lane, 489 U.S. 288 (1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499 (2007). . . . . . . . . . . . . . . . . . . . . . 117

Tenet v. Doe, 544 U.S. 1 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tennard v. Dretke, 542 U.S. 274 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Tennessee Secondary School Athletic Ass’n v. Brentwood Academy,

127 S. Ct. 2489 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 60, 64, 75, 76

Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004).. . . . . . . . . . . . . . . . . . . . . . . 133

Tennessee v. Lane, 541 U.S. 509 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

Territory of Guam v. Olsen, 431 U.S. 195 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Terry v. Ohio, 392 U.S. 1 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90

Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Thompson v. Oklahoma, 487 U.S. 815 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Thompson v. Western States Medical Center, 535 U.S. 357 (2002).. . . . . . . . . . . . . . . . . . . . . 56, 57

Thornburgh v. Abbott, 490 U.S. 401 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 74

Thornton v. United States, 541 U.S. 615 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Totten v. United States, 92 U.S. 105 (1875). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Turner v. Safley, 482 U.S. 78 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72-73, 149

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority,

127 S. Ct. 1786 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

United Public Workers v. Mitchell, 330 U.S. 75 (1947). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

United States v. American Library Assoc., Inc., 539 U.S. 194 (2003). . . . . . . . . . . . . . . . . . 73, 78-81
TABLE OF CASES 179

United States v. Arvizu, 534 U.S. 266 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88,89

United States v. Bajakajian, 524 U.S. 321 (1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

United States v. Banks, 540 U.S. 31 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

United States v. Belmont, 301 U.S. 324 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

United States v. Booker, 543 U.S. 220 (2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 107, 109, 163

United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114, 128

United States v. Darby, 312 U.S. 100 (1941). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Di Re, 332 U.S. 581 (1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

United States v. Drayton, 536 U.S. 194 (2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87, 89

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

United States v. Flores-Montano, 541 U.S. 49 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

United States v. Gall, 128 S. Ct. 586 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

United States v. Georgia, 546 U.S. 151 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 113

United States v. Grubbs, 547 U.S. 90 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

United States v. Inadi, 475 U.S. 387 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

United States v. Knights, 534 U.S. 112 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

United States v. Lara, 541 U.S. 193 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 93

United States v. Lopez, 514 U.S. 549 (1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). . . . . . . . . . . . . . . . . . . . . . . . 93, 94

United States v. Matlock, 415 U.S. 164 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

United States v. Mendoza-Lopez, 481 U.S. 828 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

United States v. Morrison, 529 U.S. 598 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. National Treasury Employees Union, 513 U.S. 454 (1995). . . . . . . . . . . . . . . . . 63

United States v. Nixon, 418 U.S. 683 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. One Bag of Paradise Feathers, 256 F. 301 (2d Cir. 1919).. . . . . . . . . . . . . . . . . . 26

United States v. O’Brien, 391 U.S. 367 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

United States v. Patane, 542 U.S. 630 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

United States v. Pink, 315 U.S. 203 (1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

United States v. Reynolds, 345 U.S. 1 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Scott, 437 U.S. 82 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

United States v. Virginia, 518 U.S. 515 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

United States v. Williams, 128 S. Ct. 1830 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Uttecht v. Brown, 127 S. Ct. 2218 (2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Van Orden v. Perry, 545 U.S. 677 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 51, 52

Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90-91

Vieth v. Jubelirer, 541 U.S. 267 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 42, 156

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980). . . . . . . . . . . . 56

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Virginia v. Black, 538 U.S. 343 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 165

Virginia v. Hicks, 539 U.S. 113 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Virginia v. Moore, 128 S. Ct. 1598 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 88

Wainwright v. Witt, 469 U.S. 412 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Walton v. Arizona, 497 U.S. 639 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 120, 169

Walz v. Tax Comm’n, 397 U.S. 664 (1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Ward v. Rock Against Racism, 491 U.S. 781 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Washington v. Harper, 494 U.S. 210 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Washington v. Recuenco, 548 U.S. 212 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

Washington State Grange v. Washington State Rep. Party, 128 S. Ct. 1184 (2008) . . . . . . . . 55, 62

Waters v. Churchill, 511 U.S. 661 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Watters v. Wachovia Bank, N.A., 127 S. Ct. 1559 (2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 168

Webster v. Doe, 486 U.S. 592 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 42

Weinberger v. Salfi, 422 U.S. 749 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). . . . . . . . . . . . . . . . . . . 75

Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-14

Whitney v. Robertson, 124 U.S. 190 (1888). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

White v. Illinois, 502 U.S. 346 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

Whorton v. Bockting, 127 S. Ct. 1173 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 44, 127

Wickard v. Filburn, 317 U.S. 111 (1942).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
180 TABLE OF CASES

Wiggins v. Smith, 539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Wilkie v. Robbins, 127 S. Ct. 2588 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Wilkinson v. Austin, 545 U.S. 209 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 149

Williamson Cty. Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985). . . . . 100, 101

Wilson v. Arkansas, 514 U.S. 927 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Wisconsin Right to Life, Inc. v. Federal Election Comm’n, 546 U.S. 410 (2006) . . . . . . . . . 69, 164

Witherspoon v. Illinois, 391 U.S. 510 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109-110

Woodford v. Visciotti, 537 U.S. 19 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). ...................................... 8

Wooley v. Maynard, 430 U.S. 705 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Wright v. Van Patten, 128 S. Ct. 743 (2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 128

Yarborough v. Alvarado, 541 U.S. 652 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Yarborough v. Gentry, 540 U.S. 1 (2003) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

Ybarra v. Illinois, 444 U.S. 85 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

Youngblood v. West Virginia, 547 U.S. 867 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Zablocki v. Redhail, 434 U.S. 374 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

Zadvydas v. Davis, 533 U.S. 678 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Zschernig v. Miller, 389 U.S. 429 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 30
181

INDEX

Abortion

“partial birth” abortion, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

Affirmative action

college admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 153

Alcohol prohibition

Eighteenth Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

interstate commerce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Twenty-first Amendment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Aliens

deportation, due process protections.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

exclusion of.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Arrest

arrestee’s right to be told reason for. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

custody, what constitutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

police ramming car constituting arrest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 91

prohibited by state law, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Association, freedom of

blanket primaries.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

designating party preference.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Authorization for Use of Military Force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 96

Bipartisan Campaign Reform Act of 2002

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Bivens actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Bribery

of state and local officials, Congress’ power to prohibit. .......................... 4

Campaign finance regulation

campaign contributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

First Amendment validity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68

Capital punishment

aggravating factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 113, 120, 121

application of new rules of criminal procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 127

by lethal injection.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 129

evidence of childhood neglect.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

evidence of low intelligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

evidence, introduction of new. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 127

for rape of child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 123

habeas corpus limits on challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 123, 126

insanity, evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

jury selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Justices Blackmun’s and Stevens’ opposition to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

juveniles, execution of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

mental retardation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

of innocent persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

offenses against the state. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 123

Child Online Protection Act

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Child Pornography

constitutionality of banning ads for protected speech. . . . . . . . . . . . . . . . . . . . . . . . . . . 77

PROTECT Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Children’s Internet Protection Act

constitutionality.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 78

Commerce
182 INDEX

foreign commerce, preemption of state regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

original package doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

with Indian tribes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Confession

fruits of.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Confrontation Clause

reliability test.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

statement of unavailable witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 111

testimonial evidence, what constitutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

Congress

commerce power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fourteenth Amendment enforcement powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159-161

spending power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Consent decrees

state’s sovereign immunity claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Copyrights and patents

Copyright Term Extension Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Copyrights and patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Counsel, assistance of

attachment of right not equivalent to entitlement to.. . . . . . . . . . . . . . . . . . . . . . . . . . 115

counsel linked to courtroom by speaker phone.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

denial as “structural defect”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

failure to present mitigating evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

mental competence to represent oneself.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

preliminary hearing, right at. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

waiver of right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Cruel and unusual punishment

denial of medical treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

evolving standards of decency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

execution for rape of child. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 123

lethal injection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 129

proportionality, three-strikes law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Declaratory Judgment Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 41

Double jeopardy

after acquittal by judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

dual sovereign rule, tribal and Federal prosecutions.. . . . . . . . . . . . . . . . . . . . . . . . . . . 93

Due process, procedural

burden of proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

delay in processing fines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

enemy combatants, right to hearing on status. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

insanity, evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

notice requirement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 143

sex offenders, Internet posting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

Due process, substantive

compelled medication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

compensable violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 142

liberty, autonomy interests, sexual privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138-141

liberty, reputation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

punitive damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

unwanted antipsychotic drugs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Education

college admissions, affirmative action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 153

Eleventh Amendment

validity of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Enemy combatants

detention, rights to hearing on status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 96

military commissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
INDEX 183

Equal Protection

affirmative action, college admissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

class of one. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

prison restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

racial imbalance in schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

state action.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Establishment Clause

Ten Commandments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Ex post facto laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Megan’s law not ex post facto. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

revival of action after limitations period has run. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Executive agreements

status as law of land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Executive privilege

Vice-presidential task force. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Fair trial

burden of proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

physical restraints, use of in front of jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

prosecutorial misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

suppression of evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

Foreign relations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

preemptive scope of federal power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Free Exercise of Religion

Refusal to fund religion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Religious Land Use and Institutionalized Persons Act. . . . . . . . . . . . . . . . . . . . . . . 52, 54

Full faith and credit

application to laws versus judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

conflict of laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

taking of property claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

Gerrymandering

partisan gerrymandering.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

partisan, justiciability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 156

Guantanamo detainees

federal court jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

habeas corpus limits on challenges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

military commissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Habeas corpus

Antiterrorism and Effective Death Penalty Act of 1996.. . . . . . . . . . . . . . . . . . . . . . . . 109,

113

federal court jurisdiction, prisoners at Guantanamo Bay. . . . . . . . . . . . . . . . . . . . . . . 21,

37

jurisdiction, location of prisoner’s custodian.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

substantial and injurious effect standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

Suspension Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 35

Hatch Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Highway checkpoints

soliciting aid in crime solving. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

Holocaust Victim Insurance Relief Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Homosexual conduct

prohibition, denial of due process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

Individuals with Disabilities Education Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Insanity defense

tests of insanity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

International Court of Justice.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Internet usage
184 INDEX

in public libraries, constitutionality of restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Judicial immunity from suit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

not from award of attorney’s fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Jury trial, right to

capital sentencing, factual findings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 105

enhanced sentencing, factual basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

on question of statutory interpretation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

sentencing factor, proof of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 107

Seventh Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Libraries

restrictions on Internet access, constitutionality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Marijuana

use for medical purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Megan’s Law

constitutionality, Ex Post Facto Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Military commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 22

Native Americans

tribal courts, “dual sovereignty,” double jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

tribal sovereignty.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Necessary and Proper Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

legislation protecting spending power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Orders, Resolutions, and Votes Clause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Overruled decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

Pledge of Allegiance

dismissal of challenge for lack of standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Portal-to-Portal Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Preemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

foreign relations, state laws impinging on federal powers.. . . . . . . . . . . . . . . . . . . . . . . 27-

29

state laws conflicting with executive agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29

President

foreign relations powers, executive agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

power to detain enemy combatants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Prisons

discrimination, racial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

speech restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

visitation rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 129, 149

Privacy

abortion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

sexual autonomy, homosexual conduct.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 138, 140

Punitive damages

excessive, due process violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

ratio to compensatory damages, due process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Racial discrimination

burden of proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Religion

theology students, exclusion from scholarship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Retroactivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Right to bear arms.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Right to vote

voter identification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 158

Rooker-Feldman doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Search and seizure

anticipatory warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

drug testing in schools.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

highway checkpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

holding wrong homeowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 87
INDEX 185

knock-and-announce procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

objection by co-occupant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

particularity requirement, warrants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

Terry stop, identity request.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

use of reasonable force.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

vehicle passengers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

warrant, particularity requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

warrantless entry.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Second Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Self-incrimination

Miranda warning, two-step questioning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Self-representation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Sentencing Guidelines, federal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 108

September 11, 2001 attack. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Sex Discrimination

Nineteenth Amendment (right to vote).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Speech

“adult” business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

campaign finance restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 65-67

censorship of Internet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

charitable solicitors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Child Online Protection Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Children’s Internet Protection Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 78

commercial speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 76

compelled speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 75

cross burning prohibition.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

facial challenges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

government employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

harm caused by, not merely conjectural. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

harm caused by, shown by common sense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

incidental restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

indecent material, evidence of harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

indecent material, fleeting broadcasts of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

intermediate scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

Internet restrictions, libraries and schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 78, 79

journalists’ privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

narrow tailoring requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

overbreadth doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

prison restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

public forum doctrine, Internet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

strict scrutiny.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

student rights.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

time, place, manner restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

unconstitutional conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 73, 79

union’s entitlement to agency fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 63

vagueness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Spending power

prohibition on bribing state and local officials. ................................. 4

Standing to sue

generalized injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

non-actualized injury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

of assignee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

taxpayer standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

States

immunity from suit in federal courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Supremacy Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

executive agreements as preempting conflicting state laws.. . . . . . . . . . . . . . . . . . . . . . 26
186 INDEX

Taking of property

exhaustion of state remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

just compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

public use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

regulatory.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

Taxation

out-of-state business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Three-strikes law

not cruel and unusual punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Treaties

as domestic law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

as self-executing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

determining their meaning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Unconstitutional conditions

not imposed by Children’s Internet Protection Act. . . . . . . . . . . . . . . . . . . . . . . . . . 73, 79

not imposed by Solomon Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Webb-Kenyon Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8