1

This publication supplements Senate Document 103–6, The Constitution of the United

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

in the pocket on the inside back cover of that volume

106TH CONGRESS DOCUMENT " SENATE ! 2d Session No. 106–27

THE CONSTITUTION

OF THE

UNITED STATES OF AMERICA

ANALYSIS AND INTERPRETATION

2000 SUPPLEMENT

ANALYSIS OF CASES DECIDED BY THE SUPREME

COURT OF THE UNITED STATES TO JUNE 28, 2000

PREPARED BY THE

CONGRESSIONAL RESEARCH SERVICE

LIBRARY OF CONGRESS

JOHNNY H. KILLIAN

GEORGE A. COSTELLO

KENNETH R. THOMAS

EDITORS

DAVID M. ACKERMAN

HENRY COHEN

ROBERT MELTZ

CONTRIBUTORS

U.S. GOVERNMENT PRINTING OFFICE

69–557 CC WASHINGTON : 2000

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

Washington, DC 20402

1

1 517 U.S. 748 (1996). The decision was unanimous in result, but there were

several concurrences reflecting some differences among the Justices. 2 10 U.S.C. § § 918(1), (4). 3The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238

(1972), and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice

Thomas disagreed, id. at 777. 4 Rule for Courts-Martial; see 517 U.S. at 754. 5 10 U.S.C. § § 818, 836(a), 856. 6 517 U.S. at 771–74.

ARTICLE I

DELEGATION OF LEGISLATIVE POWER

The Effective Demise of the Nondelegation Doctrine

[P. 78, add to text following n.79:]

The infirm state of the nondelegation doctrine was demonstrated further in Loving v. United States.1 Article 118 of the

Uniform Code of Military Justice (UCMJ) 2 provides for the death

penalty for premeditated murder and felony murder for persons

subject to the Act, but the statute does not comport with the

Court’s capital punishment jurisprudence, which requires the death

sentence to be cabined by standards so that the sentencing authority is constrained to narrow the class of convicted persons to be so

sentenced and to justify the individual imposition of the sentence.3

However, the President in 1984 had promulgated standards that

purported to supply the constitutional validity the UCMJ needed.4

The Court held that Congress could delegate to the President

the authority to prescribe standards for the imposition of the death

penalty—Congress’ power under Article I, § 8, cl. 14, is not exclusive—and that Congress had done so in the UCMJ by providing

that the punishment imposed by a court-martial may not exceed

‘‘such limits as the President may prescribe.’’ 5 Acknowledging that

a delegation must contain some ‘‘intelligible principle’’ to guide the

recipient of the delegation, the Court nonetheless held this not to

be true when the delegation was made to the President in his role

as Commander-in-Chief. ‘‘The same limitations on delegation do

not apply’’ if the entity authorized to exercise delegated authority

itself possesses independent authority over the subject matter. The

President’s responsibilities as Commander-in-Chief require him to

superintend the military, including the courts-martial, and thus

the delegated duty is interlinked with duties already assigned the

President by the Constitution.6

In the course of the opinion, the Court distinguished between

its usual separation-of-powers doctrine—emphasizing arrogation of

2 ART. I—LEGISLATIVE DEPARTMENT

7 Id. at 758–59. 8 514 U.S. 779 (1995). The majority was composed of Justice Stevens (writing

the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and

Justices O’Connor and Scalia. Id. at 845.

power by a branch and impairment of another branch’s ability to

carry out its functions—and the delegation doctrine, ‘‘another

branch of our separation of powers jurisdiction,’’ which is informed

not by the arrogation and impairment analyses but solely by the

provision of standards,7 thus confirming what has long been evident that the delegation doctrine is unmoored to separation-ofpowers principles altogether.

—The Regulatory State

[P. 82, add to n.106:]

Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court

struck down what Congress had intended to be a delegation to the President, finding that the authority conferred on the President was legislative power, not executive power, which failed because the Presentment Clause had not and could not

have been complied with. The dissenting Justices argued that the law, the Line

Item Veto Act, was properly treated as a delegation and was clearly constitutional.

Id. at 453 (Justice Scalia concurring in part and dissenting in part), 469 (Justice

Breyer dissenting).

QUALIFICATIONS OF MEMBERS OF CONGRESS

Exclusivity of Constitutional Qualifications

—Congressional Additions

[P. 111, add to n.297:]

Powell’s continuing validity was affirmed in U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995), both by the Court in its holding that the qualifications set out

in the Constitution are exclusive and may not be added to by either Congress or

the States, id. at 787–98, and by the dissent, which would hold that Congress, for

different reasons, could not add to qualifications, although the States could. Id. at

875–76.

—State Additions

[P. 114, add to text following n.312:]

The long-debated issue whether the States could add to the

qualifications that the Constitution prescribed for Senators and

Representations was finally resolved, by a surprisingly close vote,

in U.S. Term Limits, Inc. v. Thornton.8 Arkansas, along with

twenty-two other States, all but two by citizen initiatives, had imposed maximum numbers of terms that Members of Congress could

serve. In this case, the Court held that the Constitution’s qualificaVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00003 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
ART. I—LEGISLATIVE DEPARTMENT 3

9 Article I, § 2, cl. 2, provides that a person may qualify as a Representative if

she is at least 25 years old, has been a United States citizen for at least seven

years, and is an inhabitant, at the time of the election, of the State in which she

is chosen. The qualifications established for Senators, Article I, § 3, cl. 3, are an age

of 30, nine years’ citizenship, and being an inhabitant of the State at the time of

election. 10See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109

HARV. L. REV. 78 (1995). 11 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65.

tions clauses 9 establish exclusive qualifications for Members that

may not be added to either by Congress or the States. The fourJustice dissent argued that while Congress had no power to increase qualifications, the States did.

Richly embellished with disputatious arguments about the text

of the Constitution, the history of its drafting and ratification, and

the practices of Congress and the States in the early years of the

United States, the actual determination of the Court as controverted by the dissent was much more over founding principles

than more ordinary constitutional interpretation.10

Thus, the Court and the dissent drew different conclusions

from the text of the qualifications clauses and the other clauses respecting the elections of Members of Congress; the Court and the

dissent reached different conclusions after a minute examination of

the records of the Convention respecting the drafting of these

clauses and the ratification debates; and the Court and the dissent

were far apart on the meaning of the practices in the States in legislating qualifications and election laws and in Congress in deciding election contests based on qualifications disputes.

A default principle relied on by both Court and dissent, given

the arguments drawn from text, creation, and practice, had to do

with the fundamental principle underlying the Constitution’s adoption. In the dissent’s view, the Constitution was the result of the

resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that

the peoples in the States agreed to surrender powers expressly forbidden them and to surrender those limited powers that they had

delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retained them.

Thus, ‘‘where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it.’’ 11 The Constitution’s silence about the States being limited meant that the States

could legislate additional qualifications.

4 ART. I—LEGISLATIVE DEPARTMENT

12 Id. at 802. 13 Id. at 798–805. And see id. at 838–45 (Justice Kennedy concurring). 14Pub. L. No. 104–130, 110 Stat. 1200, codified in part at 2 U.S.C. § § 691–92.

Radically different were the views of the majority of the Court.

After the adoption of the Constitution, the States had two kinds of

powers: powers that they had before the founding and powers that

were reserved to them. The States could have no reserved powers

with respect to the Federal Government. ‘‘As Justice Story recognized, ‘the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which

the constitution does not delegate to them . . . . No state can say,

that it has reserved, what it never possessed.’ ’’ 12 The States could

not before the founding have possessed powers to legislate respecting the Federal Government, and since the Constitution did not

delegate to the States the power to prescribe qualifications for

Members of Congress, the States did not have it.13

Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting

philosophies within the Court respecting the scope of national

power in relation to the States, an issue at the core of many controversies today.

APPORTIONMENT OF SEATS IN THE HOUSE

The Census Requirement

[P. 115, add to n.317:]

Another census controversy was resolved in Wisconsin v. City of New York, 517

U.S. 1 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an

undercount in the 1990 Census was reasonable and within the bounds of discretion

conferred by the Constitution and statute.

THE LEGISLATIVE PROCESS

Presentation of Resolutions

[P. 144, add new topic at end of section:]

The Line Item Veto.—For more than a century, United States

Presidents had sought the authority to strike out of appropriations

bills particular items, to veto ‘‘line items’’ of money bills and sometimes legislative measures as well. Finally, in 1996, Congress approved and the President signed the Line Item Veto Act.14 The law

empowered the President, within five days of signing a bill, to ‘‘cancel in whole’’ spending items and targeted, defined tax benefits. In

acting on this authority, the President was to determine that the

cancellation of each item would ‘‘(i) reduce the Federal budget defiVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
ART. I—LEGISLATIVE DEPARTMENT 5

15 Id. at § 691(a)(A).

16 524 U.S. 417 (1998).

17 E.g., H.R. Conf. Rep. No. 104–491, 104th Cong., 2d Sess., 15 (1996) (stating

that the proposed law ‘‘delegates limited authority to the President’’).

18 524 U.S. at 453 (Justice Scalia concurring in part and dissenting in part); id.

at 469 (Justice Breyer dissenting).

19 524 U.S. at 438–39 (citing and quoting INS v. Chadha, 462 U.S. 919, 951

(1983).

20 524 U.S. at 439.

cit; (ii) not impair any essential Government functions; and (iii) not

harm the national interest.’’ 15 In Clinton v. City of New York,16 the

Court held the Act to be unconstitutional because it did not comply

with the Presentment Clause.

Although Congress in passing the Act considered itself to have

been delegating power,17 and although the dissenting Justices

would have upheld the Act as a valid delegation,18 the Court instead analyzed the statute under the Presentment Clause. In the

Court’s view, the two bills from which the President subsequently

struck items became law the moment the President signed them.

His cancellations thus amended and in part repealed the two federal laws. Under its most immediate precedent, the Court continued, statutory repeals must conform to the Presentment Clauses’s

‘‘single, finely wrought and exhaustively considered, procedure’’ for

enacting or repealing a law.19 In no respect did the procedures in

the Act comply with that clause, and in no way could they. The

President was acting in a legislative capacity, altering a law in the

manner prescribed, and legislation must, in the way Congress

acted, be bicameral and be presented to the President after Congress acted. Nothing in the Constitution authorized the President

to amend or repeal a statute unilaterally, and the Court could construe both constitutional silence and the historical practice over

200 years as ‘‘an express prohibition’’ of the President’s action.20

POWER TO REGULATE COMMERCE

Definition of Terms

—Federalism Limits on Exercise of Commerce Power

[P. 167, add to n.619, immediately after New York v. United States:]

See also Printz v. United States, 521 U.S. 898 (1997).

6 ART. I—LEGISLATIVE DEPARTMENT

21The last such decision had been Carter v. Carter Coal Co., 298 U.S. 238

(1936). 22 United States v. Lopez, 514 U.S. 549 (1995). The Court was divided 5 to 4,

with Chief Justice Rehnquist writing the opinion of the Court, joined by Justices

O’Connor, Scalia, Kennedy, and Thomas, with dissents by Justices Stevens, Souter,

Breyer, and Ginsburg. 23The Gun-Free School Zones Act of 1990, Pub. L. No. 101–647, § 1702, 104

Stat. 4844, 18 U.S.C. § 922(q)(1)(A). Congress subsequently amended the section to

make the jurisdiction turn on possession of ‘‘a firearm that has moved in or that

otherwise affects interstate or foreign commerce.’’ Pub. L. No. 104–208, § 657, 110

Stat. 3009–370. 24 514 U.S. at 556–57, 559. 25For a recent example of such regulation, see Reno v. Condon, 120 S. Ct. 666

(2000) (information about motor vehicles and owners, regulated pursuant to the

Driver’s Privacy Protection Act, and sold by states and others, is an article of commerce). 26 514 U.S. at 558–59.

The Commerce Clause as a Source of National Police Power

—Is There an Intrastate Barrier to Congress’ Commerce Power?

[P. 206, add to n.818:]

In a later case the Court avoided the constitutional issue by holding the statute

inapplicable to the arson of an owner-occupied private residence. Jones v. United

States, 120 S. Ct. 1904 (2000). An owner-occupied building is not ‘‘used’’ in interstate commerce within the meaning of the statute, the Court concluded.

[P. 207, add to text following n.820:]

For the first time in almost 60 years,21 the Court invalidated

a federal law as exceeding Congress’ authority under the Commerce Clause.22 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school.23 The Court

reviewed the doctrinal development of the Commerce Clause, especially the effects and aggregation tests, and reaffirmed that it is

the Court’s responsibility to decide whether a rational basis exists

for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged.24 The Court identified

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,25 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.’’ 26

ART. I—LEGISLATIVE DEPARTMENT 7

27 Id. at 559. 28 Id. at 559–61. 29 Id. at 561. 30 Id. at 563–68. 31 Id. at 564. 32 ‘‘Not every epochal case has come in epochal trappings.’’ Id. at 615 (Justice

Souter dissenting) (wondering whether the case is only a misapplication of established standards or is a veering in a new direction). 33 120 S. Ct. 1740 (2000). Once again, the Justices were split 5 to 4, with Chief

Justice Rehnquist’s opinion of the Court being joined by Justices O’Connor, Scalia,

Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting.

Clearly, said the Court, the criminalized activity did not implicate the first two categories.27 As for the third, the Court found an

insufficient connection. First, a wide variety of regulations of

‘‘intrastate economic activity’’ has been sustained where an activity

substantially affects interstate commerce. But the statute being

challenged, the Court continued, was a criminal law that had nothing to do with ‘‘commerce’’ or with ‘‘any sort of economic enterprise.’’ Therefore, it could not be sustained under precedents ‘‘upholding regulations of activities that arise out of or are connected

with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.’’ 28 The provision did not

contain a ‘‘jurisdictional element which would ensure, through

case-by-case inquiry, that the firearm possession in question affects

interstate commerce.’’ 29 The existence of such a section, the Court

implied, would have saved the constitutionality of the provision by

requiring a showing of some connection to commerce in each particular case. Finally, the Court rejected the arguments of the Government and of the dissent that there existed a sufficient connection between the offense and interstate commerce.30 At base, the

Court’s concern was that accepting the attenuated connection arguments presented would result in the evisceration of federalism.

‘‘Under the theories that the Government presents . . . it is difficult

to perceive any limitation on federal power, even in areas such as

criminal law enforcement or education where States historically

have been sovereign. Thus, if we were to accept the Government’s

arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.’’ 31

Whether Lopez bespoke a Court determination to police more

closely Congress’ exercise of its commerce power, so that it would

be a noteworthy case,32 or whether it was rather a ‘‘warning shot’’

across the bow of Congress, urging more restraint in the exercise

of power or more care in the drafting of laws, was not immediately

clear. The Court’s decision five years later in United States v. Morrison,33 however, suggests that stricter scrutiny of Congress’ comVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00008 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
8 ART. I—LEGISLATIVE DEPARTMENT

34For an expansive interpretation in the area of economic regulation, decided

during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.

265 (1995). 35 120 S. Ct. at 1751. 36Dissenting Justice Souter pointed to a ‘‘mountain of data’’ assembled by Congress to show the effects of domestic violence on interstate commerce. 120 S. Ct. at

1760–63. The Court has evidenced a similar willingness to look behind congressional

findings purporting to justify exercise of enforcement power under section 5 of the

Fourteenth Amendment. See discussion under ‘‘enforcement,’’ infra. In Morrison

itself, the Court determined that congressional findings were insufficient to justify

the VAWA as an exercise of Fourteenth Amendment power. 120 S. Ct. at 1755. 37 120 S. Ct. at 1752. 38 120 S. Ct. at 1752–53. Applying the principle of constitutional doubt, the

Court in Jones v. United States, 120 S. Ct. 1904 (2000), interpreted the federal

merce power exercises is the chosen path, at least for legislation

that falls outside the area of economic regulation.34 The Court will

no longer defer, via rational basis review, to every congressional

finding of substantial effects on interstate commerce, but instead

will examine the nature of the asserted nexus to commerce, and

will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited power

that cannot be allowed to displace all exercise of state police powers.

In Morrison the Court applied Lopez principles to invalidate a

provision of the Violence Against Women Act (VAWA) that created

a federal cause of action for victims of gender-motivated violence.

Gender-motivated crimes of violence ‘‘are not, in any sense of the

phrase, economic activity,’’ 35 the Court explained, and there was

allegedly no precedent for upholding commerce-power regulation of

intrastate activity that was not economic in nature. The provision,

like the invalidated provision of the Gun-Free School Zones Act,

contained no jurisdictional element tying the regulated violence to

interstate commerce. Unlike the Gun-Free School Zones Act, the

VAWA did contain ‘‘numerous’’ congressional findings about the serious effects of gender-motivated crimes,36 but the Court rejected

reliance on these findings. ‘‘The existence of congressional findings

is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . . [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’’ 37 The problem with the VAWA

findings was that they ‘‘relied heavily’’ on the reasoning rejected in

Lopez—the ‘‘but-for causal chain from the initial occurrence of

crime . . . to every attenuated effect upon interstate commerce.’’ As

the Court had explained in Lopez, acceptance of this reasoning

would eliminate the distinction between what is truly national and

what is truly local, and would allow Congress to regulate virtually

any activity, and basically any crime.38 Accordingly, the Court

ART. I—LEGISLATIVE DEPARTMENT 9

arson statute as inapplicable to the arson of a private, owner-occupied residence.

Were the statute interpreted to apply to such residences, the Court noted, ‘‘hardly

a building in the land would fall outside [its] domain,’’ and the statute’s validity

under Lopez would be squarely raised. 120 S. Ct. at 1911. 39 120 S. Ct. at 1754.

‘‘reject[ed] the argument that Congress may regulate noneconomic,

violent criminal conduct based solely on that conduct’s aggregate

effect on interstate commerce.’’ Resurrecting the dual federalism dichotomy, the Court could find ‘‘no better example of the police

power, which the Founders denied the National Government and

reposed in the States, than the suppression of violent crime and

vindication of its victims.’’ 39

THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS

Doctrinal Background

[Pp. 215–16, add to n.864:]

Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 78 (1993) (Justice Scalia

concurring) (reiterating view); Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514

U.S. 175, 200–01 (1995) (Justice Scalia, with Justice Thomas joining) (same). Justice

Thomas has written an extensive opinion rejecting both the historical and jurisprudential basis of the dormant Commerce Clause and expressing a preference for reliance on the Imports-Exports Clause. Camps Newfound/Owatonna, Inc. v. Town of

Harrison, 520 U.S. 564, 609 (1997) (dissenting; joined by Justice Scalia entirely and

by Chief Justice Rehnquist as to the Commerce Clause but not the Imports-Exports

Clause).

State Taxation and Regulation: The Old Law

—Taxation

[P. 223, add to n.907:]

Notice the Court’s distinguishing of Central Greyhound in Oklahoma Tax

Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 188–91 (1995).

—Regulation

[P. 227, add to n.928:]

And see C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 391 (1994)

(discrimination against interstate commerce not preserved because local businesses

also suffer).

[P. 227, add to n.930:]

For the most recent case in this saga, see West Lynn Creamery, Inc. v. Healy,

512 U.S. 186 (1994).

10 ART. I—LEGISLATIVE DEPARTMENT

40 Indeed, there seemed to be a precedent squarely on point. Central Greyhound

Lines, Inc. v. Mealey, 334 U.S. 653 (1948). Struck down in that case was a state

statute that failed to apportion its taxation of interstate bus ticket sales to reflect

the distance traveled within the State. 41Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995). Indeed,

the Court analogized the tax to that in Goldberg v. Sweet, 488 U.S. 252 (1989), a

tax on interstate telephone services that originated in or terminated in the State

and that were billed to an in-state address. 42Fulton Corp. v. Faulkner, 516 U.S. 325 (1996). The State had defended on the

basis that the tax was a ‘‘compensatory’’ one designed to make interstate commerce

bear a burden already borne by intrastate commerce. The Court recognized the legitimacy of the defense, but it found the tax to meet none of the three criteria for

classification as a valid compensatory tax. Id. at 333–44. See also South Central Bell

Tel. Co. v. Alabama, 526 U.S. 160 (1999) (tax not justified as compensatory).

State Taxation and Regulation: The Modern Law

—Taxation

[P. 229, add to n.941:]

A recent application of the four-part Complete Auto Transit test is Oklahoma

Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995).

[P. 231, add to n.952:]

Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S. Ct. 1022 (2000) (interest

deduction not properly apportioned between unitary and non-unitary business).

[P. 232, add to text following n.959:]

A deference to state taxing authority was evident in a case in

which the Court sustained a state sales tax on the price of a bus

ticket for travel that originated in the State but terminated in another State. The tax was not apportioned to reflect the intrastate

travel and the interstate travel.40 The tax in this case was different

from the tax upheld in Central Greyhound, the Court held. The

previous tax constituted a levy on gross receipts, payable by the

seller, whereas the present tax was a sales tax, also assessed on

gross receipts, but payable by the buyer. The Oklahoma tax, the

Court continued, was internally consistent, since if every State imposed a tax on ticket sales within the State for travel originating

there, no sale would be subject to more than one tax. The tax was

also externally consistent, the Court held, because it was a tax on

the sale of a service that took place in the State, not a tax on the

travel.41

However, the Court found discriminatory and thus invalid a

state intangibles tax on a fraction of the value of corporate stock

owned by state residents inversely proportional to the corporation’s

exposure to the state income tax.42

ART. I—LEGISLATIVE DEPARTMENT 11

43 520 U.S. 564 (1997). The decision was a 5 to 4 one with a strong dissent by

Justice Scalia, id. at 595, and a philosophical departure by Justice Thomas. Id. at

609.44 Id. at 586.

[P. 232, add to n.961:]

And see Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511 U.S.

93 (1994) (surcharge on in-state disposal of solid wastes that discriminates against

companies disposing of waste generated in other States invalid).

[P. 233, add to n.965:]

Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) (state intangibles tax

on a fraction of the value of corporate stock owned by in-state residents inversely

proportional to the corporation’s exposure to the state income tax violated dormant

Commerce Clause), with General Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state

imposition of sales and use tax on all sales of natural gas except sales by regulated

public utilities, all of which were in-state companies, but covering all other sellers

that were out-of-state companies did not violate dormant Commerce Clause because

regulated and unregulated companies were not similarly situated).

[P. 233, add to text following n.965:]

Expanding, although neither unexpectedly nor exceptionally,

its dormant commerce jurisprudence, the Court in Camps Newfound/Owatonna, Inc. v. Town of Harrison,43 applied its nondiscrimination element of the doctrine to invalidate the State’s

charitable property tax exemption statute, which applied to nonprofit firms performing benevolent and charitable functions, but

which excluded entities serving primarily non-state residents. The

claimant here operated a church camp for children, most of whom

resided out-of-state. The discriminatory tax would easily have fallen had it been applied to profit-making firms, and the Court saw

no reason to make an exception for nonprofits. The tax scheme was

designed to encourage entities to care for local populations and to

discourage attention to out-of-state individuals and groups. ‘‘For

purposes of Commerce Clause analysis, any categorical distinction

between the activities of profit-making enterprises and not-for-profit entities is therefore wholly illusory. Entities in both categories

are major participants in interstate markets. And, although the

summer camp involved in this case may have a relatively insignificant impact on the commerce of the entire Nation, the interstate

commercial activities of nonprofit entities as a class are unquestionably significant.’’ 44

[P. 236, add to n.978:]

In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), the Court held

invalidly discriminatory against interstate commerce a state milk pricing order,

which imposed an assessment on all milk sold by dealers to in-state retailers, the

entire assessment being distributed to in-state dairy farmers despite the fact that

12 ART. I—LEGISLATIVE DEPARTMENT

45See also Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511

U.S. 93 (1994) (discriminatory tax). 46 C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994). 47See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139,

149–59 (1994). Weight was given to this consideration by Justice O’Connor, 511 U.S.

at 401 (concurring) (local law an excessive burden on interstate commerce), and by

Justice Souter, id. at 410 (dissenting).

about two-thirds of the assessed milk was produced out of State. The avowed purpose and undisputed effect of the provision was to enable higher-cost in-state dairy

farmers to compete with lower-cost dairy farmers in other States.

—Regulation

[P. 236, add to text following n.980:]

Further extending the limitation of the clause on waste disposal,45 the Court invalidated as a discrimination against interstate commerce a local ‘‘flow control’’ law, which required all solid

waste within the town to be processed at a designated transfer station before leaving the municipality.46 The town’s reason for the restriction was its decision to have built a solid waste transfer station by a private contractor, rather than with public funds by the

town. To make the arrangement appetizing to the contractor, the

town guaranteed it a minimum waste flow, for which it could

charge a fee significantly higher than market rates. The guarantee

was policed by the requirement that all solid waste generated within the town be processed at the contractor’s station and that any

person disposing of solid waste in any other location would be penalized.

The Court analogized the constraint as a form of economic protectionism, which bars out-of-state processors from the business of

treating the locality’s solid waste, by hoarding a local resource for

the benefit of local businesses that perform the service. The town’s

goal of revenue generation was not a local interest that could justify the discrimination. Moreover, the town had other means to accomplish this goal, such as subsidization of the local facility

through general taxes or municipal bonds. The Court did not deal

with, indeed, did not notice, the fact that the local law conferred

a governmentally-granted monopoly, an exclusive franchise, indistinguishable from a host of local monopolies at the state and local

level.47

Foreign Commerce and State Powers

[P. 241, add to n.1001:]

See also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60 (1993) (sustaining state sales tax as applied to lease of containers delivered within the State and

used in foreign commerce).

ART. I—LEGISLATIVE DEPARTMENT 13

48 512 U.S. 298 (1994). 49The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139–

49 (1993).

[P. 242, add to text following n.1004:]

Extending Container Corporation, the Court in Barclays Bank

v. Franchise Tax Board of California,48 upheld the State’s worldwide-combined reporting method of determining the corporate franchise tax owed by unitary multinational corporations, as applied to

a foreign corporation. The Court determined that the tax easily satisfied three of the four-part Complete Auto test—nexus, apportionment, and relation to State’s services—and concluded that the nondiscrimination principle—perhaps violated by the letter of the

law—could be met by the discretion accorded state officials. As for

the two additional factors, as outlined in Japan Lines, the Court

pronounced itself satisfied. Multiple taxation was not the inevitable

result of the tax, and that risk would not be avoided by the use of

any reasonable alternative. The tax, it was found, did not impair

federal uniformity nor prevent the Federal Government from

speaking with one voice in international trade. The result of the

case, perhaps intended, is that foreign corporations have less protection under the negative Commerce Clause.49

CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption

—The Standards Applied

[P. 247, add to n.1026, immediately preceding City of New York v.

FCC:]

Smiley v. Citibank, 517 U.S. 735 (1996).

[P. 247, add to n.1027:]

And see Department of Treasury v. Fabe, 508 U.S. 491 (1993).

[P. 247, add to n.1029:]

See also American Airlines v. Wolens, 513 U.S. 219 (1995).

[P. 248, add to n.1032:]

District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 (1992)

(law requiring employers to provide health insurance coverage, equivalent to existing coverage, for workers receiving workers’ compensation benefits); John Hancock

Mutual Life Ins. Co. v. Harris Trust and Savings Bank, 510 U.S. 86 (1993) (ERISA’s

fiduciary standards, not conflicting state insurance laws, apply to insurance company’s handling of general account assets derived from participating group annuity

contract); New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins.

Co., 514 U.S. 645 (1995) (no preemption of statute that required hospitals to collect

14 ART. I—LEGISLATIVE DEPARTMENT

50 518 U.S. 470 (1996). See also CSX Transportation, Inc. v. Easterwood, 507

U.S. 658 (1993) (under Federal Railroad Safety Act, a state common-law claim alleging negligence for operating a train at excessive speed is preempted, but a second

claim alleging negligence for failure to maintain adequate warning devices at a

grade crossing is not preempted); Norfolk So. Ry. v. Shanklin, 120 S. Ct. 1467 (2000)

(applying Easterwood).

51 21 U.S.C. § 350k(a).

surcharges from patients covered by a commercial insurer but not from patients covered by Blue Cross/Blue Shield plan); De Buono v. NYSA–ILA Med. and Clinical

Servs. Fund, 520 U.S. 806 (1997); California Div. of Labor Stds. Enforcement v.

Dillingham Constr., Inc., 519 U.S. 316 (1997); Boggs v. Boggs, 520 U.S. 833 (1997)

(decided not on the basis of the express preemption language but instead by implied

preemption analysis).

[P. 249, add to text following n.1035:]

Little clarification of the confusing Cipollone decision and opinions resulted in the cases following, although it does seem evident

that the attempted distinction limiting courts to the particular language of preemption when Congress has spoken has not prevailed.

At issue in Medtronic, Inc. v. Lohr,50 was the Medical Device

Amendments (MDA) of 1976, which prohibited States from adopting or continuing in effect ‘‘with respect to a [medical] device’’ any

‘‘requirement’’ that is ‘‘different from, or in addition to’’ the applicable federal requirement and that relates to the safety or effectiveness of the device.51 The issue, then, was whether a common-law

tort obligation imposed a ‘‘requirement’’ that was different from or

in addition to any federal requirement. The device, a pacemaker

lead, had come on the market not pursuant to the rigorous FDA

test but rather as determined by the FDA to be ‘‘substantially

equivalent’’ to a device previously on the market, a situation of

some import to at least some of the Justices.

Unanimously, the Court determined that a defective design

claim was not preempted and that the MDA did not prevent States

from providing a damages remedy for violation of common-law duties that paralleled federal requirements. But the Justices split 4–

1–4 with respect to preemption of various claims relating to manufacturing and labeling. FDA regulations, which a majority deferred

to, limited preemption to situations in which a particular state requirement threatens to interfere with a specific federal interest.

Moreover, the common-law standards were not specifically developed to govern medical devices and their generality removed them

from the category of requirements ‘‘with respect to’’ specific devices.

However, five Justices did agree that common-law requirements

could be, just as statutory provisions, ‘‘requirements’’ that were

ART. I—LEGISLATIVE DEPARTMENT 15

52The dissent, by Justice O’Connor and three others, would have held preempted the latter claims, 518 U.S. at 509, whereas Justice Breyer thought that

common-law claims would sometimes be preempted, but not here. Id. at 503 (concurring).53 518 U.S. at 484–85. See also id. at 508 (Justice Breyer concurring);

Freightliner Corp. v. Myrick, 514 U.S. 280, 288–89 (1995); Barnett Bank v. Nelson,

517 U.S. 25, 31 (1996); California Div. of Labor Stds. Enforcement v. Dillingham

Constr., Inc., 519 U.S. 316, 334 (1997) (Justice Scalia concurring); Boggs v. Boggs,

520 U.S. 833 (1997) (using ‘‘stands as an obstacle’’ preemption analysis in an ERISA

case, having express preemptive language, but declining to decide when implied preemption may be used despite express language), and id. at 854 (Justice Breyer dissenting) (analyzing the preemption issue under both express and implied standards).54 120 S. Ct. 1913 (2000). 55The Court focused on the word ‘‘exempt’’ to give the saving clause a narrow

application—as ‘‘simply bar[ring] a special kind of defense, . . . that compliance with

a federal safety standard automatically exempts a defendant from state law, whether the Federal Government meant that standard to be an absolute requirement or

only a minimum one.’’ 120 S. Ct. at 1919.

preempted, though they did not agree on the application of that

view.52

Following Cipollone, the Court observed that while it ‘‘need not

go beyond’’ the statutory preemption language, it did need to ‘‘identify the domain expressly pre-empted’’ by the language, so that ‘‘our

interpretation of that language does not occur in a contextual vacuum.’’ That is, it must be informed by two presumptions about the

nature of preemption: the presumption that Congress does not

cavalierly preempt common-law causes of action and the principle

that it is Congress’ purpose that is the ultimate touchstone.53

The Court continued to struggle with application of express

preemption language to state common-law tort actions in Geier v.

American Honda Motor Co.54 The National Traffic and Motor Vehicle Safety Act contained both a preemption clause, prohibiting

states from applying ‘‘any safety standard’’ different from an applicable federal standard, and a ‘‘saving clause,’’ providing that ‘‘compliance with’’ a federal safety standard ‘‘does not exempt any person from any liability under common law.’’ The Court determined

that the express preemption clause was inapplicable. However, despite the saving clause, the Court ruled that a common law tort action seeking damages for failure to equip a car with an airbag was

preempted because its application would frustrate the purpose of a

Federal Motor Vehicle Safety Standard that had allowed manufacturers to choose from among a variety of ‘‘passive restraint’’ systems for the applicable model year.55 The Court’s holding makes

clear, contrary to the suggestion in Cipollone, that existence of express preemption language does not foreclose operation of conflict

(in this case ‘‘frustration of purpose’’) preemption.

16 ART. I—LEGISLATIVE DEPARTMENT

56 520 U.S. 833 (1997). 57 Id. at 841. The dissent, id. at 854 (Justice Breyer), agreed that conflict analysis was appropriate, but he did not find that the state law achieved any result that

ERISA required.

[P. 251, add to n.1046 after Ray v. Atlantic Richfield citation:]

United States v. Locke, 120 S. Ct. 1135 (2000) (applying Ray).

[P. 252, add to n.1050 before Free v. Brand:]

Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (federal arbitration

law preempts state law invalidating pre-dispute arbitration agreements that were

not entered into in contemplation of substantial interstate activity); Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) (federal arbitration law preempts state

statute that conditioned enforceability of arbitration clause on compliance with special notice requirement).

[P. 252, add to n.1054:]

See also Barnett Bank v. Nelson, 517 U.S. 25 (1996) (federal law empowering

national banks in small towns to sell insurance preempts state law prohibiting

banks from dealing in insurance; despite explicit preemption provision, state law

stands as an obstacle to accomplishment of federal purpose).

[P. 253, add to text following n.1057:]

In Boggs v. Boggs,56 the Court, 5 to 4, applied the ‘‘stands as

an obstacle’’ test for conflict even though the statute (ERISA) contains an express preemption section. The dispute arose in a

community-property State, in which heirs of a deceased wife

claimed property that involved pension-benefit assets that was left

to them by testamentary disposition, as against a surviving second

wife. Two ERISA provisions operated to prevent the descent of the

property to the heirs, but under community-property rules the

property could have been left to the heirs by their deceased mother.

The Court did not pause to analyze whether the ERISA preemption

provision operated to preclude the descent of the property, either

because state law ‘‘relate[d] to’’ a covered pension plan or because

state law had an impermissible ‘‘connection with’’ a plan, but it instead decided that the operation of the state law insofar as it conflicted with the purposes Congress had intended to achieve by

ERISA and insofar as it ran into the two noted provisions of ERISA

stood as an obstacle to the effectuation of the ERISA law. ‘‘We can

begin, and in this case end, the analysis by simply asking if state

law conflicts with the provisions of ERISA or operates to frustrate

its objects. We hold that there is a conflict, which suffices to resolve

the case. We need not inquire whether the statutory phrase ‘relate

to’ provides further and additional support for the pre-emption

claim. Nor need we consider the applicability of field preemption.’’ 57

ART. I—LEGISLATIVE DEPARTMENT 17

58 Crosby v. National Foreign Trade Council, 120 S. Ct. 2288 (2000). 59 120 S. Ct. at 2295 n.8.

Similarly, the Court found it unnecessary to consider field preemption due to its holding that a Massachusetts law barring state

agencies from purchasing goods or services from companies doing

business with Burma imposed obstacles to the accomplishment of

Congress’ full objectives under the federal Burma sanctions law.58

The state law was said to undermine the federal law in several respects that could have implicated field preemption—by limiting the

President’s effective discretion to control sanctions, and by frustrating the President’s ability to engage in effective diplomacy in developing a comprehensive multilateral strategy—but the Court

‘‘decline[d] to speak to field preemption as a separate issue.’’ 59

—Federal Versus State Labor Laws

[P. 255, add to n.1069, immediately following Bethlehem Steel:]

See also Livadas v. Bradshaw, 512 U.S. 107 (1994) (finding preempted because

it stood as an obstacle to the achievement of the purposes of NLRA a practice of

a state labor commissioner).

COMMERCE WITH INDIAN TRIBES

[P. 263, add to n.1114:]

For recent tax controversies, see Oklahoma Tax Comm’n v. Sac & Fox Nation,

508 U.S. 114 (1993); Department of Taxation & Finance v. Milhelm Attea & Bros.,

512 U.S. 61 (1994); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450

(1995).

[P. 263, add to n.1117, immediately following Brendale discussion:]

And see Hagen v. Utah, 510 U.S. 399 (1994).

[P. 264, add to n.1119:]

See South Dakota v. Bourland, 508 U.S. 679 (1993) (abrogation of Indian treaty

rights and reduction of sovereignty).

ALIENS

The Power of Congress to Exclude Aliens

[P. 276, add to n.1199:]

See Sale v. Haitian Centers Council, 509 U.S. 155 (1993) (construing statutes

and treaty provisions restrictively to affirm presidential power to interdict and seize

fleeing aliens on high seas to prevent them from entering U.S. waters).

18 ART. I—LEGISLATIVE DEPARTMENT

60 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999). 61See United States v. IBM Corp., 517 U.S. 843, 850–61 (1996).

Deportation

[P. 281, add to n.1232:]

In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld an INS regulation providing for the ongoing detention of juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept

release, as against a substantive due process attack.

[P. 281, add to text at end of section:]

An alien unlawfully in the country ‘‘has no constitutional right

to assert selective enforcement as a defense against his deportation.’’ 60

COPYRIGHTS AND PATENTS

Procedure in Issuing Patents

[P. 297, add to n.1353:]

In Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996), the Court held

that the interpretation of terms in a patent claim is a matter of law reserved entirely for the court. The Seventh Amendment does not require that such issues be

tried to a jury.

Nature and Scope of the Right Secured

[P. 298, add to n.1359:]

For fair use in the context of a song parody, see Campbell v. Acuff-Rose Music,

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

THE POWER TO RAISE AND MAINTAIN ARMED FORCES

Trial and Punishment of Offenses: Servicemen, Civilian Employees,

and Dependents

[P. 316, add to n.1465:]

See Loving v. United States, 517 U.S. 748 (1996) (in context of the death penalty under the UCMJ).

POWERS DENIED TO CONGRESS

Taxes on Exports

[P. 356, add to text following n.1772:]

Continuing its refusal to modify its Export Clause jurisprudence,61 the Court held unconstitutional the Harbor Maintenance

Tax (HMT) under the Export Clause insofar as the tax was applied

to goods loaded at United States ports for export. The HMT reVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00019 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
ART. I—LEGISLATIVE DEPARTMENT 19

62 United States v. United States Shoe Corp., 523 U.S. 360, 363 (1998). 63 Id. at 367–69. 64 517 U.S. 843 (1996). 65 Article I, § 10, cl. 2, applying to the States.

quired shippers to pay a uniform charge on commercial cargo

shipped through the Nation’s ports. The clause, said the Court,

‘‘categorically bars Congress from imposing any tax on exports.’’ 62

However, the clause does not interdict a ‘‘user fee,’’ that is a charge

that lacks the attributes of a generally applicable tax or duty and

is designed to compensate for government supplied services, facilities, or benefits, and it was that defense to which the Government

repaired once it failed to obtain a modification of the rules under

the clause. But the HMT bore the indicia of a tax. It was titled as

a tax, described as a tax in the law, and codified in the Internal

Revenue Code. Aside from naming, however, courts must look to

how things operate, and the HMT did not qualify as a user fee. It

did not represent compensation for services rendered. The value of

export cargo did not correspond reliably with the federal harbor

services used or usable by the exporter. Instead, the extent and

manner of port use depended on such factors as size and tonnage

of a vessel and the length of time it spent in port.63 The HMT was

thus a tax, and therefore invalid.

[P. 356, add to text following n.1775:]

In United States v. IBM Corporation,64 the Court declined the

Government’s argument that it should refine its export-tax-clause

jurisprudence. Rather than read the clause as a bar on any tax

that applies to a good in the export stream, the Government contended that the Court should bring this clause in line with the Import-Export Clause 65 and with dormant-commerce-clause doctrine.

In that view, the Court should distinguish between discriminatory

and nondiscriminatory taxes on exports. But the Court held that

sufficient differences existed between the Export Clause and the

other two clauses, so that its bar should continue to apply to any

and all taxes on goods in the course of exportation.

[P. 356, add to n.1778:]

In United States v. IBM Corp., 517 U.S. 843 (1996), the Court adhered to

Thames & Mersey, and held unconstitutional a federal excise tax upon insurance

policies issued by foreign countries as applied to coverage for exported products. The

Court admitted that one could question the earlier case’s equating of a tax on the

insurance of exported goods with a tax on the goods themselves, but it observed that

the Government had chosen not to present that argument. Principles of stare decisis

thus cautioned observance of the earlier case. Id. at 854–55. The dissenters argued

that the issue had been presented and should be decided by overruling the earlier

case. Id. at 863 (Justices Kennedy and Ginsburg dissenting).

20 ART. I—LEGISLATIVE DEPARTMENT

66 Carmell v. Texas, 120 S. Ct. 1620 (2000).

POWERS DENIED TO THE STATES

Ex Post Facto Laws

—Scope of the Provision

[P. 362, add to n.1815:]

In Eastern Enterprises v. Apfel, 524 U.S. 498, 538 (1998) (concurring), Justice

Thomas indicated a willingness to reconsider Calder to determine whether the

clause should apply to civil legislation.

—Changes in Punishment

[P. 364, add to n.1829:]

But see California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995) (a law

amending parole procedures to decrease frequency of parole-suitability hearings is

not ex post facto as applied to prisoners who committed offenses before enactment).

The opinion modifies previous opinions that had invalidated some laws because they

operated to the ‘‘disadvantage’’ of covered offenders. Henceforth, ‘‘the focus of ex post

facto inquiry is . . . whether any such change alters the definition of criminal conduct

or increases the penalty by which a crime is punishable.’’ Id. at 506 n.3. Accord,

Garner v. Jones, 120 S. Ct. 1362 (2000) (evidence insufficient to determine whether

change in frequency of parole hearings significantly increases the likelihood of prolonging incarceration). But see Lynce v. Mathis, 519 U.S. 433 (1997) (cancellation

of release credits already earned and used, resulting in reincarceration, violates the

Clause).

—Changes in Procedure

[P. 366, add to end of section:]

Changes in evidentiary rules that allow conviction on less evidence than was required at the time the crime was committed can

also run afoul of the Ex Post Facto Clause. This principle was applied in the Court’s invalidation of retroactive application of a

Texas law that eliminated the requirement that the testimony of

a sexual assault victim age 14 or older must be corroborated by two

other witnesses, and allowed conviction on the victim’s testimony

alone.66

Duties on Exports or Imports

—Scope

[P. 399, add to n.2000:]

Justice Thomas has called recently for reconsideration of Woodruff and the possible application of the clause to interstate imports and exports. Camps Newfound/

Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997) (dissenting).

ART. I—LEGISLATIVE DEPARTMENT 21

—Property Taxes

[P. 400, add to n.2020:]

See also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 76–8 (1993). And

see id. at 81–2 (Justice Scalia concurring).

23

1Memorandum for John Schmidt, Associate Attorney General, from Assistant

Attorney General Walter Dellinger, Constitutional Limitations on Federal Government Participation in Binding Arbitration (Sept. 7, 1995); Memorandum for the

General Counsels of the Federal Government, from Assistant Attorney General Walter Dellinger, The Constitutional Separation of Powers Between the President and

Congress (May 7, 1996). The principles laid down in the memoranda depart significantly from previous positions of the Department of Justice. For conflicting versions

of the two approaches, see Constitutional Implications of the Chemical Weapons Convention, Hearings Before the Senate Judiciary Subcommittee on the Constitution,

Federalism, and Property Rights, 104th Cong., 2d Sess. (1996), 11–26, 107–10 (Professor John C. Woo), 80–106 (Deputy Assistant Attorney General Richard L.

Shiffrin).

ARTICLE II

NATURE AND SCOPE OF PRESIDENTIAL POWER

Executive Power: Theory of the Presidential Office

—The Curtiss-Wright Case

[P. 420, add to n.34:]

In Loving v. United States, 517 U.S. 748 (1996), the Court recurred to the original setting of Curtiss-Wright, a delegation to the President without standards. Congress, the Court found, had delegated to the President authority to structure the

death penalty provisions of military law so as to bring the procedures, relating to

aggravating and mitigating factors, into line with constitutional requirements, but

Congress had provided no standards to guide the presidential exercise of the authority. Standards were not required, held the Court, because the President’s role as

Commander-in-Chief gave him responsibility to superintend the military establishment and Congress and the President had interlinked authorities with respect to

the military. Where the entity exercising the delegated authority itself possesses

independent authority over the subject matter, the familiar limitations on delegation do not apply. Id. at 771–74.

Executive Power: Separation-of-Powers Judicial Protection

[P. 422, add to text following n.45:]

Significant change in the position of the Executive Branch on

separation of powers may be discerned in two briefs of the Department of Justice’s Office of Legal Counsel, which may spell some

measure of judicial modification of the formalist doctrine of separation and adoption of the functionalist approach to the doctrine.1

The two opinions withdraw from the Department’s earlier contention, following Buckley v. Valeo, that the execution of the laws is

an executive function that may be carried out only by persons appointed pursuant to the appointments clause, thus precluding delegations to state and local officers and to private parties (as in qui

tam actions), as well as to glosses on the take care clause and other

provisions of the Constitution. Whether these memoranda signal

24 ART. II—EXECUTIVE DEPARTMENT

2Dalton v. Specter, 511 U.S. 462 (1994).

3 Id. at 472.

4See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139,

300–10 (1994).

5 ‘‘As a matter of constitutional logic, the executive branch must have some warrant, either statutory or constitutional, for its actions. The source of all federal governmental authority is the Constitution and, because the Constitution contemplates

that Congress may delegate a measure of its power to officials in the executive

branch, statutes. The principle of separation of powers is a direct consequence of

this scheme. Absent statutory authorization, it is unlawful for the President to exercise the powers of the other branches because the Constitution does not vest those

powers in the President. The absence of statutory authorization is not merely a statutory defect; it is a constitutional defect as well.’’ 108 HARV. L. REV. at 305–06 (footnote citations omitted).

long-term change depends on several factors, importantly on

whether they are adhered to by subsequent administrations.

[P. 425, add to text following n.61:]

In the course of deciding that the President’s action in approving the closure of a military base, pursuant to statutory authority,

was not subject to judicial review, the Court enunciated a principle

that may mean a great deal, constitutionally speaking, or that may

not mean much of anything.2 The lower court had held that, while

review of presidential decisions on statutory grounds might be precluded, his decisions were reviewable for constitutionality; in that

court’s view, whenever the President acts in excess of his statutory

authority, he also violates the constitutional separation-of-powers

doctrine. The Supreme Court found this analysis flawed. ‘‘Our

cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution. On the contrary, we have often distinguished between claims of constitutional

violations and claims that an official has acted in excess of his statutory authority.’’ 3 Thus, the Court drew a distinction between executive action undertaken without even the purported warrant of

statutory authorization and executive action in excess of statutory

authority. The former may violate separation of powers, while the

latter will not.4

Doctrinally, the distinction is important and subject to unfortunate application.5 Whether the brief, unilluminating discussion in

Dalton will bear fruit in constitutional jurisprudence, however, is

problematic.

ART. II—EXECUTIVE DEPARTMENT 25

6 520 U.S. 651 (1997).

7 Id. at 661–62. 8 Id. at 662–63. The case concerned whether the Secretary of Transportation, a

presidential appointee with the advice and consent of the Senate, could appoint

judges of the Coast Guard Court of Military Appeals; necessarily, the judges had

to be ‘‘inferior’’ officers. In related cases, the Court held that designation or appointment of military judges, who are ‘‘officers of the United States,’’ does not violate the

appointments clause. The judges are selected by the Judge Advocate General of

their respective branch of the Armed Forces. These military judges, however, were

already commissioned officers who had been appointed by the President with the

advice and consent of the Senate, so that their designation simply and permissibly

was an assignment to them of additional duties that did not need a second formal

appointment. Weiss v. United States, 510 U.S. 163 (1994). However, the appointment of civilian judges to the Coast Guard Court of Military Review by the same

method was impermissible; they had either to be appointed by an officer who could

exercise appointment-clause authority or by the President, and their actions were

not salvageable under the de facto officer doctrine. Ryder v. United States, 515 U.S.

177 (1995).

THE EXECUTIVE ESTABLISHMENT

Appointments and Congressional Regulation of Offices

[P. 514, add to text following n.468:]

The Court, in Edmond v. United States,6 reviewed its pronouncements regarding the definition of ‘‘inferior officer’’ and, disregarding some implications of its prior decisions, seemingly settled, unanimously, on a pragmatic characterization. Thus, the importance of the responsibilities assigned an officer, the fact that duties were limited, that jurisdiction was narrow, and that tenure

was limited, are only factors but are not definitive.7 ‘‘Generally

speaking, the term ‘inferior officer’ connotes a relationship with

some higher ranking officer or officers below the President: Whether one is an ‘inferior’ officer depends on whether he has a superior.

It is not enough that other officers may be identified who formally

maintain a higher rank, or possess responsibilities of a greater

magnitude. If that were the intention, the Constitution might have

used the phrase ‘lesser officer.’ Rather, in the context of a Clause

designed to preserve political accountability relative to important

Government assignments, we think it evident that ‘inferior officers’

are officers whose work is directed and supervised at some level by

others who were appointed by Presidential nomination with the advice and consent of the Senate.’’ 8

[P. 516, add new footnote to end of first sentence of first full paragraph:]

As the text suggested, Freytag seemed to be a tentative decision, and Edmond

v. United States, 520 U.S. 651 (1997), a unanimous decision written by Justice

Scalia, whose concurring opinion in Freytag challenged the Court’s analysis, may

easily be read as retreating considerably from it.

26 ART. II—EXECUTIVE DEPARTMENT

9 520 U.S. 681 (1997).

10The Court observed at one point that it doubted that defending the suit would

much preoccupy the President, that his time and energy would not be much taken

up by it. ‘‘If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.’’ 520 U.S. at 702.

—Financial Disclosure and Limitations

[P. 519, add to n.498:]

The Supreme Court held this provision unconstitutional in United States v.

NTEU, 513 U.S. 454 (1995).

PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

[P. 579, add to n.723:]

See also, following Franklin, Dalton v. Specter, 511 U.S. 462 (1994).

[P. 582, add to text following n.738:]

Unofficial Conduct.—In Clinton v. Jones,9 the Court, in a

case of first impression, held that the President did not have qualified immunity from suit for conduct alleged to have taken place

prior to his election to the Presidency, which would entitle him to

delay of both the trial and discovery. The Court held that its precedents affording the President immunity from suit for his official

conduct—primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision

might give rise to personal liability—were inapplicable in this kind

of case. Moreover, the separation-of-powers doctrine did not require

a stay of all private actions against the President. Separation of

powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the Government at

the expense of another. However, a federal trial court tending to

a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a

trial court could curtail the scope of the President’s powers. The

trial court, the Supreme Court observed, had sufficient powers to

accommodate the President’s schedule and his workload, so as not

to impede the President’s performance of his duties. Finally, the

Court stated its belief that allowing such suits to proceed would not

generate a large volume of politically motivated harassing and frivolous litigation. Congress has the power, the Court advised, if it

should think necessary to legislate, to afford the President protection.10

ART. II—EXECUTIVE DEPARTMENT 27

11 Nixon v. United States, 506 U.S. 224 (1993). Nixon at the time of his conviction and removal from office was a federal district judge in Mississippi.

—The President’s Subordinates

[P. 582, add to n.743:]

Following the Westfall decision, Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), which authorized

the Attorney General to certify that an employee was acting within the scope of his

office or employment at the time of the incident out of which a suit arose; upon certification, the employee is dismissed from the action, and the United States is substituted, the Federal Tort Claims Act (FTCA) then governing the action, which

means that sometimes the action must be dismissed against the Government because the FTCA has not waived sovereign immunity. Cognizant of the temptation

set before the Government to immunize both itself and its employee, the Court in

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), held that the Attorney General’s certification is subject to judicial review.

IMPEACHMENT

Impeachable Offenses

—Judicial Review of Impeachments

[P. 591, add to text following n.784:]

Upon at last reaching the question, the Court has held that a

claim to judicial review of an issue arising in an impeachment trial

in the Senate presents a nonjusticiable question, a ‘‘political question.’’ 11 Specifically, the Court held that a claim that the Senate

had not followed the proper meaning of the word ‘‘try’’ in the impeachment clause, a special committee being appointed to take testimony and to make a report to the full Senate, complete with a

full transcript, on which the Senate acted, could not be reviewed.

But the analysis of the Court applies to all impeachment clause

questions, thus seemingly putting off-limits to judicial review the

whole process.

29

1Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995). The Court was

careful to delineate the difference between attempting to alter a final judgment, one

rendered by a court and either not appealed or affirmed on appeal, and legislatively

amending a statute so as to change the law as it existed at the time a court issued

a decision that was on appeal or otherwise still alive at the time a federal court

reviewed the determination below. A court must apply the law as revised when it

considers the prior interpretation. Id. at 226–27.

Article III creates or authorizes Congress to create not a collection of

unconnected courts, but a judicial department composed of ‘‘inferior courts’’ and ‘‘one

Supreme Court.’’ ‘‘Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole.’’

Id. at 227. 2 514 U.S. at 227 (emphasis by Court).

3 120 S. Ct. 2246 (2000).

ARTICLE III

JUDICIAL POWER

Characteristics and Attributes of Judicial Power

[P. 618, add to text following n.126:]

Judicial power confers on federal courts the power to decide a

case, to render a judgment conclusively resolving a case. Judicial

power is the authority to render dispositive judgments, and Congress violates the separation of powers when it purports to alter

final judgments of Article III courts.1 In this controversy, the Court

had unexpectedly fixed on a shorter statute of limitations to file

certain securities actions than that believed to be the time in many

jurisdictions. Resultantly, several suits that had been filed later

than the determined limitations had been dismissed and had become final because they were not appealed. Congress enacted a

statute, which, while not changing the limitations period prospectively, retroactively extended the time for suits dismissed and provided for the reopening of the final judgments rendered in the dismissals of suits.

Holding the congressional act invalid, the Court held it impermissible for Congress to disturb a final judgment. ‘‘Having achieved

finality, . . . a judicial decision becomes the last word of the judicial

department with regard to a particular case or controversy, and

Congress may not declare by retroactive legislation that the law

applicable to that very case was something other than what the

courts said it was.’’ 2 On the other hand, the Court ruled in Miller

v. French 3 that the Prison Litigation Reform Act’s automatic stay

of ongoing injunctions remedying violations of prisoners’ rights did

not amount to an unconstitutional legislative revision of a final

judgment. Rather, the automatic stay merely alters ‘‘the prospecVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00030 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
30 ART. III—JUDICIAL DEPARTMENT

4 120 S. Ct. at 2257.

5 512 U.S. 821 (1994).

6 Id. at 832–38. Relevant is the fact that the alleged contempts did not occur

in the presence of the court and that determinations of violations require elaborate

and reliable factfinding. See esp. id. at 837–38.

tive effect’’ of injunctions, and it is well established that such prospective relief ‘‘remains subject to alteration due to changes in the

underlying law.’’ 4

Finality of Judgment as an Attribute of Judicial Power

[P. 620, add to n.140:]

Notice the Court’s discussion in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

218, 225–26 (1995).

ANCILLARY POWERS OF FEDERAL COURTS

The Contempt Power

—Categories of Contempt

[P. 623, add to text following n.154:]

In International Union, UMW v. Bagwell,5 the Court formulated a new test for drawing the distinction between civil and

criminal contempts, which has important consequences for the procedural rights to be accorded those cited. Henceforth, the imposition of non-compensatory contempt fines for the violation of any

complex injunction will require criminal proceedings. This case, as

have so many, involved the imposition of large fines (here, $52 million) upon a union in a strike situation for violations of an elaborate court injunction restraining union activity during the strike.

The Court was vague with regard to the standards for determining

when a court order is ‘‘complex’’ and thus requires the protection

of criminal proceedings.6 Much prior doctrine remains, however, as

in the distinction between remedial sanctions, which are civil, and

punitive, which are criminal, and between in-court and out-of-court

contempts.

—Due Process Limitations on Contempt Power: Right to Jury Trial

[P. 631, add to n.195:]

See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (refining

the test for when contempt citations are criminal and thus require jury trials).

[P. 631, add to n.196:]

In International Union, UMW v. Bagwell, 512 U.S. 821, 837 n.5 (1994), the

Court continued to reserve the question of the distinction between petty and serious

contempt fines, because of the size of the fine in that case.

ART. III—JUDICIAL DEPARTMENT 31

7 518 U.S. 651 (1996).

8Pub. L. No. 104–132, § § 101–08, 110 Stat. 1214, 1217–26, amending, inter alia,

28 U.S.C. § § 2244, 2253, 2254, 2255, and Fed. R. App. P. 22. 9The statute was part of an Omnibus Appropriations Act signed by the President on April 26, 1996. Pub. L. 104–134, § § 801–10, 110 Stat. 1321–66–77, amending 18 U.S.C. § 3626. 10 120 S. Ct. 2246 (2000).

—Contempt by Disobedience of Orders

[P. 634, add to n.206:]

See also International Union, UMW v. Bagwell, 512 U.S. 821 (1994).

Power to Issue Writs: The Act of 1789

—Habeas Corpus: Congressional and Judicial Control

[P. 639, add to text following n.238:]

In Felker v. Turpin,7 the Court again passed up the opportunity to delineate Congress’ permissive authority over habeas,

finding that none of the provisions of the Antiterrorism and Effective Death Penalty Act 8 raised questions of constitutional import.

Congressional Limitation of the Injunctive Power

[P. 642, add to text following n.264:]

Perhaps pressing its powers further than prior legislation,

Congress enacted the Prison Litigation Reform Act of 1996.9 Essentially, the law imposes a series of restrictions on judicial remedies

in prison-conditions cases. Thus, courts may not issue prospective

relief that extends beyond that necessary to correct the violation of

a federal right that they have found, that is narrowly drawn, is the

least intrusive, and that does not give attention to the adverse impact on public safety. Preliminary injunctive relief is limited by the

same standards. Consent decrees may not be approved unless they

are subject to the same conditions, meaning that the court must

conduct a trial and find violations, thus cutting off consent decrees.

No prospective relief is to last longer than two years if any party

or intervenor so moves. Finally, a previously issued decree that

does not conform to the new standards imposed by the Act is subject to termination upon the motion of the defendant or an intervenor. After a short period (30 or 60 days, depending on whether

there is ‘‘good cause’’ for a 30-day extension), such a motion operates as an automatic stay of the prior decree pending the court’s

decision on the merits. The Court upheld the termination and automatic stay provisions in Miller v. French,10 rejecting the contention

that the automatic stay provision offends separation of powers

32 ART. III—JUDICIAL DEPARTMENT

11 120 S. Ct. at 2259. 12Department of Commerce v. United States House of Representatives, 525

U.S. 316 (1999). 13 524 U.S. 11 (1998).

principles by legislative revision of a final judgment. Rather, Congress merely established new standards for the enforcement of prospective relief, and the automatic stay provision ‘‘helps to implement the change in the law.’’ 11

JUDICIAL POWER AND JURISDICTION—CASES AND CONTROVERSIES

Substantial Interest: Standing

—Taxpayer Suits

[P. 657, add to n.335:]

Richardson’s generalized grievance constriction does not apply when Congress

confers standing on litigants. FEC v. Akins, 524 U.S. 11 (1998). When Congress confers standing on ‘‘any person aggrieved’’ by the denial of information required to be

furnished them, the statutory entitlement is sufficient, and it matters not that most

people will be entitled and will thus suffer a ‘‘generalized grievance.’’ Id. at 21–25.

[P. 657, add to n.336:]

The Court’s present position on Flast is set out severely in Lewis v. Casey, 518

U.S. 343, 353 n.3 (1996), in which the Court largely plays down the ‘‘serious and

adversarial treatment’’ prong of standing and strongly reasserts the separation-ofpowers value of keeping courts within traditional bounds. The footnote is a response

to Justice Souter’s separate opinion utilizing Flast, id., 398–99, for a distinctive

point.

—Constitutional Standards: Injury in Fact, Causation, and

Redressability

[P. 658, insert the following after the word ‘‘Now’’ in sentence following n.345:]

political,12

[P. 659, add to text following n.347:]

In FEC v. Akins,13 the Court found ‘‘injury-in-fact’’ present when plaintiff voters

alleged that the Federal Election Commission had denied them information, to

which they alleged an entitlement, respecting an organization that might or might

not be a political action committee. Congress had afforded persons access to the

Commission and had authorized ‘‘any person aggrieved’’ by the actions of the FEC

to sue to challenge the action. That the injury was widely shared did not make the

claimed injury a ‘‘generalized grievance,’’ the Court held, but rather in this case, as

in others, it was a concrete harm to each member of the class. The case is a principal example of the ability of Congress to confer standing and to remove prudential

constraints on judicial review.

ART. III—JUDICIAL DEPARTMENT 33

14 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 120 S. Ct. 1858

(2000). The Court confirmed its conclusion by reference to the long tradition of qui

tam actions, since the Constitution’s restriction of judicial power to ‘‘cases’’ and ‘‘controversies’’ has been interpreted to mean ‘‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’’ Id. at 1863. 15Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693, 707 (2000). 16 Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville, 508

U.S. 656 (1993). Thus, it appears that had the Court applied its standard in the

current case, the results would have been different in such cases as Linda R. S. v.

Richard D., 410 U.S. 614 (1973); Warth v. Seldin, 422 U.S. 490 (1975); Simon v.

Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976); and Allen v. Wright, 468

U.S. 737 (1984).

[P. 659, add to n.348 at end of string citation:]

Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693 (2000).

[P. 659, add to text following n.348:]

Even citizens who bring qui tam actions under the False

Claims Act, an action that entitles them to a percentage of any

civil penalty assessed for violation, have been held to have standing, on the theory that the government has assigned a portion of

its damages claim to the plaintiff, and the assignee of a claim has

standing to assert the injury in fact suffered by the assignor.14

[P. 660, add to n.352:]

In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Court

denied standing because of the absence of redressability. An environmental group

sued the company for failing to file timely reports required by statute; by the time

the complaint was filed, the company was in full compliance. Acknowledging that

the entity had suffered injury in fact, the Court found that no judicial action would

afford it a remedy.

[P. 661, add to text at end of section:]

Redressability can be present in an environmental citizen suit

even when the remedy is civil penalties payable to the government.

The civil penalties, the Court explained, ‘‘carried with them a deterrent effect that made it likely, as opposed to merely speculative,

that the penalties would redress [plaintiffs’] injuries by abating

current violations and preventing future ones.’’ 15

—Prudential Standing Rules

[P. 661, add to text following n.360:]

In a case permitting a plaintiff contractors’ association to challenge an affirmative-action, set-aside program, the Court seemed to

depart from several restrictive standing decisions in which it had

held that the claims of attempted litigants were too ‘‘speculative’’

or too ‘‘contingent.’’ 16 The association had sued, alleging that many

of its members ‘‘regularly bid on and perform construction work’’

34 ART. III—JUDICIAL DEPARTMENT

17 508 U.S. at 666. The Court derived the proposition from another set of cases.

Turner v. Fouche, 396 U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982);

Regents of the Univ. of California v. Bakke, 438 U.S. 265, 281 n.14 (1978). 18 508 U.S. at 666. But see, in the context of ripeness, Reno v. Catholic Social

Servs., Inc., 509 U.S. 43 (1993), in which the Court, over the dissent’s reliance on

Jacksonville, id. at 81–2, denied the relevance of its distinction between entitlement

to a benefit and equal treatment. Id. at 58 n.19. 19 521 U.S. 811 (1997).

for the city and that they would have bid on the set-aside contracts

but for the restrictions. The Court found the association had standing, because certain prior cases under the Equal Protection Clause

established a relevant proposition. ‘‘When the government erects a

barrier that makes it more difficult for members of one group to

obtain a benefit than it is for members of another group, a member

of the former group seeking to challenge the barrier need not allege

that he would have obtained the benefit but for the barrier in order

to establish standing. The ‘injury in fact’ in an equal protection

case of this variety is the denial of equal treatment resulting from

the imposition of the barrier, not the ultimate inability to obtain

the benefit.’’ 17 The association, therefore, established standing by

alleging that its members were able and ready to bid on contracts

but that a discriminatory policy prevented them from doing so on

an equal basis.18

[Pp. 661–62, add to n.360:]

Justice Scalia, who wrote the opinion in Lujan, reiterated the separation-ofpowers objection to congressional conferral of standing in FEC v. Akins, 524 U.S.

11, 29, 36 (1998) (alleged infringement of President’s ‘‘take care’’ obligation), but this

time in dissent; the Court did not advert to this objection in finding that Congress

had provided for standing based on denial of information to which the plaintiffs, as

voters, were entitled.

[P. 662, add to n.362:]

See also Bennett v. Spear, 520 U.S. 154 (1997).

—Standing to Assert the Constitutional Rights of Others

[P. 663, add to n.370:]

The Court has expanded the rights of non-minority defendants to challenge the

exclusion of minorities from petit and grand juries, both on the basis of the injuryin-fact to defendants and because the standards for being able to assert the rights

of third parties were met. Powers v. Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S. 392 (1998).

—Standing of Members of Congress

[P. 668, add new paragraph at end of section:]

Member or legislator standing has been severely curtailed, although not quite abolished, in Raines v. Byrd.19 Several Members

ART. III—JUDICIAL DEPARTMENT 35

20The Act itself provided that ‘‘[a]ny Member of Congress or any individual adversely affected’’ could sue to challenge the law. 2 U.S.C. § 692(a)(1). After failure

of this litigation, the Court in the following Term, on suits brought by claimants

adversely affected by the exercise of the veto, held the statute unconstitutional.

Clinton v. City of New York, 524 U.S. 417 (1998). 21 521 U.S. at 819. 22 521 U.S. at 821. 23 307 U.S. 433 (1939). 24 521 U.S. at 823.

of Congress, who had voted against passage of the Line Item Veto

Act, sued in their official capacities as Members of Congress to invalidate the law, alleging standing based on the theory that the

statute adversely affected their constitutionally prescribed lawmaking power.20 Emphasizing its use of standing doctrine to maintain

separation-of-powers principles, the Court adhered to its holdings

that, in order to possess the requisite standing, a person must establish that he has a ‘‘personal stake’’ in the dispute and that the

alleged injury suffered is particularized as to him.21 Neither requirement, the Court held, was met by these legislators. First, the

Members did not suffer a particularized loss that distinguished

them from their colleagues or from Congress as an entity. Second,

the Members did not claim that they had been deprived of anything to which they were personally entitled. ‘‘[A]ppellees’ claim of

standing is based on loss of political power, not loss of any private

right, which would make the injury more concrete . . . . If one of the

Members were to retire tomorrow, he would no longer have a

claim; the claim would be possessed by his successor instead. The

claimed injury thus runs (in a sense) with the Member’s seat, a

seat which the Member holds . . . as trustee for his constituents, not

as a prerogative of personal power.’’ 22

So, there is no such thing as Member standing? Not necessarily so, because the Court turned immediately to preserving (at

least a truncated version of) Coleman v. Miller,23 in which the

Court had found that 20 of the 40 members of a state legislature

had standing to sue to challenge the loss of the effectiveness of

their votes as a result of a tie-breaker by the lieutenant governor.

Although there are several possible explanations for the result in

that case, the Court in Raines chose to fasten on a particularly narrow point. ‘‘[O]ur holding in Coleman stands (at most, . . .) for the

proposition that legislators whose votes would have been sufficient

to defeat (or enact) a specific legislative Act have standing to sue

if that legislative action goes into effect (or does not go into effect),

on the ground that their votes have been completely nullified.’’ 24

Because these Members could still pass or reject appropriations

bills, vote to repeal the Act, or exempt any appropriations bill from

36 ART. III—JUDICIAL DEPARTMENT

25 521 U.S. at 824–26.

presidential cancellation, the Act did not nullify their votes and

thus give them standing.25

It will not pass notice that the Court’s two holdings do not cohere. If legislators have standing only to allege personal injuries

suffered in their personal capacities, how can they have standing

to assert official-capacity injury in being totally deprived of the effectiveness of their votes? A period of dispute in the D.C. Circuit

seems certain to follow.

—Standing to Challenge Nonconstitutional Governmental Action

[P. 669, add to n.401:]

See also National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522

U.S. 479 (1998), in which the Court found that a bank had standing to challenge

an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of

groups having a common bond of occupation or association. The Court held that a

plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is ‘‘arguably within the zone of interests

to be protected . . . by the statute.’’ Id. at 492 (internal quotation marks and citation

omitted). But the Court divided 5 to 4 in applying the test. And see Bennett v.

Spear, 520 U.S. 154 (1997).

[P. 670, add to n.405:]

But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that ‘‘citizen suit’’ provision

of Endangered Species Act is directed at empowering suits to further environmental

concerns does not mean that suitor who alleges economic harm from enforcement

of Act lacks standing); FEC v. Akins, 524 U.S. 11 (1998) (expansion of standing

based on denial of access to information).

The Requirement of a Real Interest

—Declaratory Judgments

[P. 674, add to n.436:]

See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).

—Ripeness

[P. 676, add to n.449:]

For recent examples of lack of ripeness, see Ohio Forestry Ass’n v. Sierra Club,

523 U.S. 726 (1998); Texas v. United States, 523 U.S. 296 (1998).

[P. 678, add to n.457:]

In the context of ripeness to challenge agency regulations, as to which there is

a presumption of available judicial remedies, the Court has long insisted that federal courts should be reluctant to review such regulations unless the effects of administrative action challenged have been felt in a concrete way by the challenging

ART. III—JUDICIAL DEPARTMENT 37

parties, i.e., unless the controversy is ‘‘ripe.’’ See, of the older cases, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.

158 (1967); Gardner v. Toilet Goods Ass’n, Inc., 387 U.S. 167 (1967). More recent

cases include Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993); Lujan v. National Wildlife Fed’n., 497 U.S. 871, 891 (1990).

—Mootness

[P. 679, add to n.462:]

Munsingwear had long stood for the proposition that the appropriate practice

of the Court in a civil case that had become moot while on the way to the Court

or after certiorari had been granted was to vacate or reverse and remand with directions to dismiss. But, in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513

U.S. 18 (1994), the Court held that when mootness occurs because the parties have

reached a settlement, vacatur of the judgment below is ordinarily not the best practice; instead, equitable principles should be applied so as to preserve a presumptively correct and valuable precedent, unless a court concludes that the public interest would be served by vacatur.

[PP. 679, add to n.463:]

Consider the impact of Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83

(1993).

[P. 680, add to n.466:]

Following Aladdin’s Castle, the Court in Northeastern Fla. Ch., Assoc. Gen.

Contractors v. City of Jacksonville, 508 U.S. 656, 660–63 (1993), held that when a

municipal ordinance is repealed but replaced by one sufficiently similar so that the

challenged action in effect continues, the case is not moot. But see id. at 669 (Justice

O’Connor dissenting) (modification of ordinance more significant and case is

mooted).

[P. 680, add to n.467:]

In Arizonans For Official English v. Arizona, 520 U.S. 43 (1997), a state employee attacking an English-only work requirement had standing at the time she

brought the suit, but she resigned following a decision in the trial court, thus

mooting the case before it was taken to the appellate court, which should not have

acted to hear and decide it.

[P. 680, add to n.469:]

But compare Spencer v. Kemna, 523 U.S. 1 (1998).

[P. 682, add to n.476 following Super Tire citation:]

Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693, 708–10 (2000).

—Retroactivity Versus Prospectivity

[P. 686, add to n.503:]

For additional elaboration on ‘‘new law,’’ see O’Dell v. Netherland, 521 U.S. 151

(1997); Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v. Netherland, 518 U.S.

152 (1996). But compare Bousley v. Brooks, 523 U.S. 614 (1998).

38 ART. III—JUDICIAL DEPARTMENT

26 509 U.S. 86 (1993). 27 Id. at 97. While the conditional language in this passage might suggest that

the Court was leaving open the possibility that in some cases it might rule purely

prospectively, not even applying its decision to the parties before it, other language

belies that possibility. ‘‘This rule extends Griffith’s ban against ‘selective application

of new rules.’ ’’ [Citing 479 U.S. at 323]. Inasmuch as Griffith rested in part on the

principle that ‘‘the nature of judicial review requires that [the Court] adjudicate specific cases,’’ Griffith, 479 U.S. at 322, deriving from Article III’s case or controversy

requirement for federal courts and forbidding federal courts from acting legislatively, the ‘‘Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.’’

509 U.S. at 97 (quoting American Trucking, 496 U.S. at 214 (Justice Stevens dissenting)). The point is made more clearly in Justice Scalia’s concurrence, in which

he denounces all forms of nonretroactivity as ‘‘the handmaid of judicial activism.’’

Id. at 105. 28 Id. at 110 (Justice Kennedy, with Justice White, concurring); 113 (Justice

O’Connor, with Chief Justice Rehnquist, dissenting). However, these Justices disagreed in this case about the proper application of Chevron Oil. 29 But see Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (setting aside

a state court refusal to give retroactive effect to a U.S. Supreme Court invalidation

of that State’s statute of limitations in certain suits, in an opinion by Justice Breyer,

Justice Blackmun’s successor); Ryder v. United States, 515 U.S. 177, 184–85 (1995)

(‘‘whatever the continuing validity of Chevron Oil after’’ Harper and Reynoldsville

Casket). 30 Nixon v. United States, 506 U.S. 224 (1993). The Court pronounced its decision as perfectly consonant with Powell v. McCormack. Id. at 236–38.

[P. 687, add to text following n.509:]

Apparently, the Court now has resolved this dispute, although

the principal decision is a close 5 to 4 result. In Harper v. Virginia

Dep’t of Taxation,26 the Court adopted the principle of the Griffith

decision in criminal cases and disregarded the Chevron Oil approach in civil cases. Henceforth, in civil cases, the rule is: ‘‘When

this Court applies a rule of federal law to the parties before it, that

rule is the controlling interpretation of federal law and must be

given full retroactive effect in all cases open on direct review and

as to all events, regardless of whether such events predate or postdate our announcement of the rule.’’ 27 Four Justices continued to

adhere to Chevron Oil, however,28 so that with one Justice each retired from the different sides one may not regard the issue as definitively settled.29

Political Questions

—The Doctrine Reappears

[P. 696, add to text following n.569:]

A challenge to the Senate’s interpretation of and exercise of its

impeachment powers was held to be nonjusticiable; there was a

textually demonstrable commitment of the issue to the Senate, and

there was a lack of judicially discoverable and manageable standards for resolving the issue.30

ART. III—JUDICIAL DEPARTMENT 39

JUDICIAL REVIEW

Limitations on the Exercise of Judicial Review

—Stare Decisis in Constitutional Law

[P. 712, add to n.639:]

Recent discussions of and both applications of and refusals to apply stare decisis

may be found in Hohn v. United States, 524 U.S. 236, 251–52 (1998), and id. at

1981–83 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S. 3, 20–2 (1997);

Agostini v. Felton, 521 U.S. 203, 235–36 (1997), and id. at 523–54 (Justice Souter

dissenting); United States v. IBM Corp., 517 U.S. 843, 854–56 (1996) (noting principles of following precedent and declining to consider overturning an old precedent

when parties have not advanced arguments on the point), with which compare id.

at 863 (Justice Kennedy dissenting) (arguing that the United States had presented

the point and that the old case ought to be overturned); Adarand Constructors, Inc.

v. Pena, 515 U.S. 200, 231–35 (1996) (plurality opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 1990 decision), with which compare

the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S. 44,

61–73 (1996) (discussing policy of stare decisis, why it should not be followed with

respect to a 1989 decision, and overruling that precedent), with which compare the

dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S.

175, 200–01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence);

Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice

Thomas concurring in part and dissenting in part) (rejecting framework of Buckley

v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes

those issues not raised or argued).

JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL

COURTS

Cases Arising Under the Constitution, Laws, and Treaties of the

United States

—Pendent Jurisdiction

[P. 721, add to n.702:]

See also Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994); Peacock v.

Thomas, 516 U.S. 349 (1996) (both cases using the new vernacular of ‘‘ancillary jurisdiction’’).

[P. 722, add to n.713:]

In City of Chicago v. International College of Surgeons, 522 U.S. 156 (1998),

the Court, despite the absence of language making § 1367 applicable, held that the

statute gave district courts jurisdiction over state-law claims in cases originating in

state court and then removed to federal court.

40 ART. III—JUDICIAL DEPARTMENT

Cases of Admiralty and Maritime Jurisdiction

—Admiralty and Maritime Cases

[P. 734, add to n.780:]

And see Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), a tort

claim arising out of damages allegedly caused by negligently driving piles from a

barge into the riverbed, which weakened a freight tunnel that allowed flooding of

the tunnel and the basements of numerous buildings along the Chicago River. The

Court found that admiralty jurisdiction could be invoked. The location test was satisfied, because the barge, even though fastened to the river bottom, was a ‘‘vessel’’

for admiralty tort purposes; the two-part connection test was also satisfied, inasmuch as the incident had a potential to disrupt maritime commerce and the conduct

giving rise to the incident had a substantial relationship to traditional maritime activity.

—Admiralty and Federalism

[P. 743, add to n.842:]

But, in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996), a case involving

a death in territorial waters from a jet ski accident, the Court held that Moragne

does not provide the exclusive remedy in cases involving the death in territorial waters of a ‘‘nonseafarer’’—a person who is neither a seaman covered by the Jones Act

nor a longshore worker covered by the LHWCA.

Cases to Which the United States Is a Party

—Immunity of the United States From Suit

[P. 747, add to n.863:]

See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC’s ‘‘sue-and-be-sued’’ clause

waives sovereign immunity; but a Bivens implied cause of action for constitutional

torts cannot be used directly against FSLIC).

Suits Between Two or More States

—Cases of Which the Court has Declined Jurisdiction

[P. 755, add to n.909:]

But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the Court’s reluctance to

exercise original jurisdiction ran afoul of the ‘‘uncompromising language’’ of 28

U.S.C. § 1251(a) giving the Court ‘‘original and exclusive jurisdiction’’ of these kinds

of suits.

Controversies Between Citizens of Different States

—The Law Applied in Diversity Cases

[P. 772, add to text following n.1013:]

Some confusion has been injected into consideration of which

law to apply—state or federal—in the absence of a federal statute

ART. III—JUDICIAL DEPARTMENT 41

31Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996). The decision

was 5 to 4, so that the precedent may or may not be stable for future application. 32 E.g., Guaranty Trust Co. v. York, 326 U.S. 99 (1945). 33 E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958). 34 19 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE

(2d ed. 1996), § 4511, at 311.

or a Federal Rule of Civil Procedure.31 In an action for damages,

the federal courts were faced with the issue of the application either of a state statute, which gave the appellate division of the

state courts the authority to determine if an award is excessive or

inadequate if it deviates materially from what would be reasonable

compensation, or of a federal judicially-created practice of review of

awards as so exorbitant that it shocked the conscience of the court.

The Court determined that the state statute was both substantive

and procedural, which would result in substantial variations between state and federal damage awards depending on whether the

state or the federal approach was applied; it then followed the

mode of analysis exemplified by those cases emphasizing the importance of federal courts reaching the same outcome as would the

state courts,32 rather than what had been the prevailing standard,

in which the Court balanced state and federal interests to determine which law to apply.33 Emphasis upon either approach to considerations of applying state or federal law reflects a continuing

difficulty of accommodating ‘‘the constitutional power of the states

to regulate the relations among their citizens . . . [and] the constitutional power of the federal government to determine how its courts

are to be operated.’’ 34 Additional decisions will be required to determine which approach, if either, prevails.

[P. 773, add to n.1016:]

But see O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994).

POWER OF CONGRESS TO CONTROL THE FEDERAL COURTS

The Theory Reconsidered

[P. 788, add to n.1105:]

A restrained reading of McCardle is strongly suggested by Felker v. Turpin, 518

U.S. 651 (1996). A 1996 congressional statute giving to federal courts of appeal a

‘‘gate-keeping’’ function over the filing of second or successive habeas petitions limited further review, including denying the Supreme Court appellate review of circuit

court denials of motions to file second or successive habeas petitions. Pub. L. No.

104–132, § 106, 110 Stat. 1214, 1220, amending 28 U.S.C. § 2244(b). Upholding the

limitation, which was nearly identical to the congressional action at issue in

McCardle and Yerger, the Court held that its jurisdiction to hear appellate cases

had been denied, but just as in Yerger the statute did not annul the Court’s jurisdiction to hear habeas petitions filed as original matters in the Supreme Court. No constitutional issue was thus presented.

42 ART. III—JUDICIAL DEPARTMENT

35 506 U.S. 390 (1993).

FEDERAL-STATE COURT RELATIONS

Conflicts of Jurisdiction: Rules of Accommodation

—Abstention

[Pp. 798–99, add to n.1161:]

But in Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), an exercise in

Burford abstention, the Court held that federal courts have power to dismiss or remand cases based on abstention principles only where relief being sought is equitable or otherwise discretionary but may not do so in common-law actions for damages.

[P. 803, change heading to:]

Conflicts of Jurisdiction: Federal Court Interference with State

Courts

—Habeas Corpus: Scope of the Writ

[P. 816, add to n.1256:]

See also O’Dell v. Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520

U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996). But compare Bousley v.

Brooks, 523 U.S. 614 (1998).

[P. 818, add to n.1268:]

In Bousley v. Brooks, 523 U.S. 614 (1998), a federal post-conviction relief case,

petitioner had pled guilty to a federal firearms offense. Subsequently, the Supreme

Court interpreted more narrowly the elements of the offense than had the trial

court in Bousley’s case. The Court held that Bousley by his plea had defaulted, but

that he might be able to demonstrate ‘‘actual innocence’’ so as to excuse the default

if he could show on remand that it was more likely than not that no reasonable

juror would have convicted him of the offense, properly defined.

[P. 818, add to text following n.1270:]

The Court continues, with some modest exceptions, to construe

habeas jurisdiction quite restrictively, but it has now been joined

by new congressional legislation that is also restrictive. In Herrera

v. Collins,35 the Court appeared, though ambiguously, to take the

position that, while it requires a showing of actual innocence to

permit a claimant to bring a successive or abusive petition, a claim

of innocence is not alone sufficient to enable a claimant to obtain

review of his conviction on habeas. Petitioners are entitled in federal habeas courts to show that they are imprisoned in violation of

the Constitution, not to seek to correct errors of fact. But a claim

of innocence does not bear on the constitutionality of one’s convicVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00043 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
ART. III—JUDICIAL DEPARTMENT 43

36 Id. at 398–417. However, in a subsequent part of the opinion, the Court purports to reserve the question whether ‘‘a truly persuasive demonstration of ‘actual

innocence’ made after trial would render the execution of a defendant unconstitutional,’’ and it imposed a high standard for making this showing. Id. at 417–19. Justices Scalia and Thomas would have unequivocally held that ‘‘[t]here is no basis in

text, tradition, or even in contemporary practice . . . for finding in the Constitution

a right to demand judicial consideration of newly discovered evidence of innocence

brought forward after conviction.’’ Id. at 427–28 (Concurring). However, it is not at

all clear that all the Justices joining the Court believe innocence to be nondispositive on habeas. Id. at 419 (Justices O’Connor and Kennedy concurring), 429 (Justice

White concurring). 37 513 U.S. 298 (1995). 38 Id. at 334 (Chief Justice Rehnquist dissenting, with Justices Kennedy and

Thomas), 342 (Justice Scalia dissenting, with Justice Thomas). This standard was

drawn from Sawyer v. Whitney, 505 U.S. 333 (1995). 39 513 U.S. at 327. This standard was drawn from Murray v. Carrier, 477 U.S.

478 (1986). 40Pub. L. 104–132, Title I, 110 Stat. 1217–21, amending 28 U.S.C. § § 2244,

2253, 2254, and Rule 22 of the Federal Rules of Appellate Procedure. For a narrowly

decided case weakening somewhat the congressional provisions on ‘‘gate-keeping,’’

see Hohn v. United States, 524 U.S. 236 (1998).

41 518 U.S. 651 (1996).

tion or detention, and the execution of one claiming actual innocence would not itself violate the Constitution.36

But, in Schlup v. Delo,37 the Court adopted the plurality opinion of Kuhlmann v. Wilson and held that, absent a sufficient showing of ‘‘cause and prejudice,’’ a claimant filing a successive or abusive petition must, as an initial matter, make a showing of ‘‘actual

innocence’’ so as to fall within the narrow class of cases implicating

a fundamental miscarriage of justice. The Court divided, however,

with respect to the showing a claimant must make. One standard,

found in some of the cases, was championed by the dissenters; ‘‘to

show ‘actual innocence’ one must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would

have found the petitioner eligible for the death penalty.’’ 38 The

Court adopted a second standard, under which the petitioner must

demonstrate that ‘‘a constitutional violation has probably resulted

in the conviction of one who is actually innocent.’’ To meet this burden, a claimant ‘‘must show that it is more likely than not that no

reasonable juror would have convicted him in the light of the new

evidence.’’ 39

In the Antiterrorism and Effective Death Penalty Act of

1996,40 Congress imposed tight new restrictions on successive or

abusive petitions, including making the circuit courts ‘‘gate keepers’’ in permitting or denying the filing of such petitions, with bars

to appellate review of these decisions, provisions that in part were

upheld in Felker v. Turpin.41 An important new restriction on the

authority of federal habeas courts is that found in the new law,

which provides that a habeas court shall not grant a writ to any

44 ART. III—JUDICIAL DEPARTMENT

42The amended 28 U.S.C. § 2254(d) (emphasis supplied). On the constitutionality and application of this provision, see the various opinions in Lindh v. Murphy,

96 F.3d 856 (7th Cir. 1996) (en banc), rev’d on other grounds, 521 U.S. 320 (1997);

Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997);

Hall v. Washington, 106 F.3d 742 (7th Cir. 1997); O’Brien v. Dubois, 145 F.3d 16

(1st Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998), cert. denied, 525 U.S.

1090 (1999).

person in custody pursuant to a judgment of a state court ‘‘with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—(1) resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States[.]’’ 42

45

1 522 U.S. 287 (1998).

2 522 U.S. at 298.

ARTICLE IV

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

All Privileges and Immunities of Citizens in the Several States

[P. 874, add to n.194:]

For the application of this test, see Lunding v. New York Tax Appeals Tribunal,

522 U.S. 287, 296–99 (1998).

Taxation

[P. 877, in text following n.215, add:]

The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents

in Lunding v. New York Tax Appeals Tribunal.1 In this case, the

State denied nonresidents any deduction from taxable income for

alimony payments, although it permitted residents to deduct such

payments. While observing that approximate equality between residents and nonresidents was required by the clause, the Court acknowledged that precise equality was neither necessary nor in

most instances possible. But it was required of the challenged State

that it demonstrate a ‘‘substantial reason’’ for the disparity, and

the discrimination must bear a ‘‘substantial relationship’’ to that

reason.2 A State, under this analysis, may not deny nonresidents

a general tax exemption provided to residents that would reduce

their tax burdens, but it could limit specific expense deductions

based on some relationship between the expenses and their in-state

property or income. Here, the State flatly denied the exemption.

Moreover, the Court rejected various arguments that had been presented, finding that most of those arguments, while they might

support targeted denials or partial denials, simply reiterated the

State’s contention that it need not afford any exemptions at all.

DOCTRINE OF THE EQUALITY OF STATES

[P. 885, add to text following n.276:]

Similarly, Indian treaty rights to hunt, fish, and gather on

lands ceded to the Federal Government were not extinguished by

statehood. These ‘‘usufructuary’’ rights were subject to reasonable

46 ART. IV—STATES’ RELATIONS

3Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204–05

(1999) (overruling Ward v. Race Horse, 163 U.S. 504 (1896)).

state regulation, and hence were not irreconcilable with state sovereignty over natural resources.3

Property Rights of States to Soil Under Navigable Waters

[P. 887, delete last sentence of section]

47

1 521 U.S. 898 (1997).

2 521 U.S. at 933 (internal quotation marks omitted) (quoting New York v.

United States, 505 U.S. 144, 188 (1992)). 3 521 U.S. at 904–18. Notably, the Court expressly exempted from this rule the

continuing role of the state courts in the enforcement of federal law. Id. at 905–08. 4 521 U.S. at 919 (quoting THE FEDERALIST NO. 39 (Madison). 5 521 U.S. at 918.

ARTICLE VI

NATIONAL SUPREMACY

Obligation of State Courts Under the Supremacy Clause

[P. 921, add to n.20:]

The Court’s re-emphasis upon ‘‘dual federalism’’ has not altered this principle.

See, e.g., Printz v. United States, 521 U.S. 898, 905–10 (1997).

Supremacy Clause Versus the Tenth Amendment

[P. 930, add to text at end of carryover paragraph:]

Expanding upon its anti-commandeering rule, the Court in

Printz v. United States 1 established ‘‘categorically’’ the rule that

‘‘[t]he Federal Government may not compel the States to enact or

administer a federal regulatory program.’’ 2 At issue in Printz was

a provision of the Brady Handgun Violence Prevention Act, which

required, pending the development by the Attorney General of a

national system by which criminal background checks on prospective firearms purchasers could be conducted, the chief law enforcement officers of state and local governments to conduct background

checks to ascertain whether applicants were ineligible to purchase

handguns. Confronting the absence of any textual basis for a ‘‘categorical’’ rule, the Court looked to history, which in its view demonstrated a paucity of congressional efforts to impose affirmative

duties upon the States.3 More important, the Court relied on the

‘‘structural Constitution’’ to demonstrate that the Constitution of

1787 had not taken from the States ‘‘a residuary and inviolable

sovereignty,’’ 4 that it had, in fact and theory, retained a system of

‘‘dual sovereignty’’ 5 reflected in many things but most notably in

the constitutional conferral ‘‘upon Congress of not all governmental

powers, but only discrete, enumerated ones,’’ which was expressed

in the Tenth Amendment. Thus, while it had earlier rejected the

commandeering of legislative assistance, the Court now made clear

that administrative officers and resources were also fenced off from

federal power.

48 ART. VI—PRIOR DEBTS, SUPREMACY CLAUSE, ETC.

6 521 U.S. at 936 (citing 42 U.S.C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice)).

7 120 S. Ct. 666 (2000).

8 120 S. Ct. at 672.

The scope of the rule thus expounded was unclear. Particularly, Justice O’Connor in concurrence observed that Congress retained the power to enlist the States through contractual arrangements and on a voluntary basis. More pointedly, she stated that

‘‘the Court appropriately refrains from deciding whether other

purely ministerial reporting requirements imposed by Congress on

state and local authorities pursuant to its Commerce Clause powers are similarly invalid.’’ 6

A partial answer was provided in Reno v. Condon,7 in which

the Court upheld the Driver’s Privacy Protection Act against a

charge that it offended the anti-commandeering rule of New York

and Printz. The Act in general limits disclosure and resale without

a driver’s consent of personal information contained in the records

of state motor vehicle departments, and requires disclosure of that

information for specified government record-keeeping purposes.

While conceding that the Act ‘‘will require time and effort on the

part of state employees,’’ the Court found this imposition permissible because the Act regulates state activities directly rather than

requiring states to regulate private activities.8

The Doctrine of Federal Exemption From State Taxation

—Taxation of Government Contractors

[P. 935, add to n.118:]

Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999) (the same

rule applies when the contractual services are rendered on an Indian reservation).

—Taxation of Salaries of Employees of Federal Agencies

[P. 937, add to n.123:]

For application of the Act to salaries of federal judges, see Jefferson County v.

Acker, 527 U.S. 423 (1999) (upholding imposition of a local occupational tax).

49

1 Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the

provision of remedial educational services by public school teachers to sectarian elementary and secondary schoolchildren on the premises of the sectarian schools);

Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000) (holding unconstitutional

under the Lemon tests as well as under the coercion and endorsement tests a school

district policy permitting high school students to decide by majority vote whether

to have a student offer a prayer over the public address system prior to home football games); and Mitchell v. Helms, 120 S. Ct. 2530 (2000) (upholding under the

Lemon tests a federally funded program providing instructional materials and

equipment to public and private elementary and secondary schools, including sectarian schools). 2 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989)

(Justice Kennedy concurring in part and dissenting in part). 3Lee v. Weisman, 505 U.S. 577 (1992), and Santa Fe Indep. Sch. Dist. v. Doe,

120 S. Ct. 2216 (2000).

FIRST AMENDMENT

RELIGION

An Overview

—Court Tests Applied to Legislation Affecting Religion

[Pp. 973–74, change text following n.25 to read:]

and in several instances have not been applied at all by the

Court.

[P. 974, add to n.26 following Lee v. Weisman citation:]

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (upholding provision

of sign-language interpreter to deaf student attending parochial school); Board of

Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (upholding

the extension of a university subsidy of student publications to a student religious

publication).

[P. 974, change text following n.26 to read:]

Nonetheless, the Court employed the Lemon tests in its most

recent Establishment Clause decisions,1 and it remains the case

that those tests have served as the primary standard of Establishment Clause validity for the past three decades. However, other

tests have also been formulated and used. Justice Kennedy has

proffered ‘‘coercion’’ as an alternative test for violations of the Establishment Clause,2 and the Court has used that test as the basis

for decision from time to time.3 But that test has been criticized

on the grounds it would eliminate a principal distinction between

the Establishment Clause and the Free Exercise Clause and make

50 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

4Lee v. Weisman, 505 U.S. 577, 621 (Justice Souter concurring). See also County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (Justice

O’Connor concurring in part and concurring in the judgment). 5Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (Justice O’Connor concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (Justice

O’Connor concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S.

687, 712 (1994) (Justice O’Connor concurring). 6Wallace v. Jaffrey, 472 U.S. 38 (1985); Grand Rapids School Dist. v. Ball, 473

U.S. 373 (1985); County of Allegheny v. American Civil Liberties Union Greater

Pittsburgh Chapter, 492 U.S. 573; Capitol Square Review and Advisory Bd. v.

Pinette, 515 U.S. 753 (1995); and Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2216

(2000). 7 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989)

(Justice Kennedy concurring in the judgment in part and dissenting in part); and

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995)

(Justice Scalia concurring). 8 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 718–723 (1994)

(Justice O’Connor concurring in part and concurring in the judgment). 9Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000).

10Mitchell v. Helms, 120 S. Ct. 2530 (2000). 11 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Cantwell v. Connecticut, 310 U.S. 296 (1940); Church of the Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520 (1993). 12 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Braunfeld v. Brown,

366 U.S. 599 (1961). 13 Cantwell v. Connecticut, 310 U.S. 296 (1940). 14Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205

(1972). 15 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

the former a ‘‘virtual nullity.’’ 4 Justice O’Connor has suggested ‘‘endorsement’’ as a clarification of the Lemon test, i.e., that the Establishment Clause is violated if the government intends its action to

endorse or disapprove of religion or if a ‘‘reasonable observer’’

would perceive the government’s action as such an endorsement or

disapproval 5; and the Court also has used this test for some of its

decisions.6 But others have criticized the endorsement test as too

amorphous to provide certain guidance.7 Justice O’Connor has also

suggested that it may be inappropriate to try to shoehorn all Establishment Clause cases into one test and has called instead for

recognition that different contexts may call for different approaches.8 In its two most recent Establishment Clause decisions,

it might be noted, the Court employed all three tests in one decision 9 and relied primarily on the Lemon tests in the other.10

In interpreting and applying the Free Exercise Clause, the

Court has consistently held religious beliefs to be absolutely immune from governmental interference.11 But it has used a number

of standards to review government action restrictive of religiously

motivated conduct, ranging from formal neutrality 12 to clear and

present danger 13 to strict scrutiny.14 For cases of intentional governmental discrimination against religion, the Court still employs

strict scrutiny.15 But for most other free exercise cases it has now

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 51

16 Employment Div. v. Smith, 494 U.S. 872, 879 (1990), quoting United States

v. Lee, 455 U.S. 252, 263, n.3 (1982) (Justice Stevens concurring in the judgment).

reverted to a standard of formal neutrality. ‘‘[T]he right of free exercise,’’ it recently stated, ‘‘does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground the law proscribes (or prescribes) conduct that

his religion prescribes (or proscribes).’ ’’ 16

Establishment of Religion

—Financial Assistance to Church-Related Institutions

[P. 979, replace the paragraph that begins after n.49 following its

first two sentences:]

Since that time the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have

been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship

aid programs where the schools have received the assistance as the

result of the independent decisions of the parents or students who

initially receive the aid, and in its most recent decisions direct aid

programs which substantially benefit the educational function of

such schools. Indeed, in its most recent decisions the Court has

overturned several of the most restrictive school aid precedents

from its earlier jurisprudence. Throughout, the Court has allowed

greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.

[P. 979, add between the words ‘‘requirement’’ and ‘‘to’’ in the first

sentence of the second paragraph:]

of the Lemon tripartite test

[P. 979, replace the text and accompanying footnotes between footnotes 50 and 60:]

The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive.

As a consequence, the Court’s applications of these tests have not

always been consistent, and the rules guiding their application

have not always been easy to decipher. Moreover, in its most recent

decisions the Court has substantially modified the strictures these

tests have previously imposed on public aid to pervasively sectarian

entities.

In applying the primary effect and excessive entanglement

tests, the Court has drawn a distinction between public aid proVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00052 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
52 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

17Grand Rapids School Dist. v. Ball, 473 U.S. 373, 385 (1985). 18Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Pub. Educ. v.

Nyquist, 413 U.S. 756 (1973); Mitchell v. Helms, 120 S. Ct. 2530 (2000). 19 Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973). 20Wolman v. Walter, 433 U.S. 229 (1977). 21Mueller v. Allen, 463 U.S. 388, 397–399 (1983). 22Witters v. Washington Dep’t of Social Services, 474 U.S. 481 (1986). In this

decision the Court also cited as important the factor that the program was not likely

to provide ‘‘any significant portion of the aid expended under the . . . program’’ for

religious education. Id. at 488.

grams that directly aid sectarian entities and those that do so only

indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The Establishment Clause ‘‘absolutely prohibit[s] governmentfinanced or government-sponsored indoctrination into the beliefs of

a particular religious faith.’’ 17 The government may provide direct

support to the secular services and programs sponsored by religious

entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing.18 Thus, the Court has struck down

as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use

for such purposes as defraying the costs of building or maintaining

chapels or classrooms in which religion is taught,19 and a program

subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions.20

But the Court has not imposed a secular use limitation on aid

programs that benefit sectarian entities only indirectly, i.e., as the

result of decisions by someone other than the government itself.

The initial beneficiaries of the public aid must be determined on

the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But where those standards have been met, the

Court has upheld indirect aid programs even though the sectarian

institutions that ultimately benefit may use the aid for religious

purposes. Thus, the Court has upheld a state program allowing

taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was ‘‘available for educational expenses incurred by all parents’’ and the aid

became available to sectarian schools ‘‘only as a result of numerous, private choices of individual parents of school-age children.’’ 21

It has upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible

college for a religious vocation 22 and another program that proVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00053 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 53

23Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). 24 Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) and Sloan v.

Lemon, 413 U.S. 825 (1973). 25See, e.g., Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) (grants

for the maintenance and repair of sectarian school facilities); Meek v. Pittenger, 421

U.S. 349 (1975) (loan of secular instructional materials and equipment); Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) (hiring of parochial school teachers to

provide after-school instruction to the students attending such schools). 26See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971) (subsidies for teachers of

secular subjects) and Aguilar v. Felton, 473 U.S. 402 (1985) (provision of remedial

and enrichment services by public school teachers to eligible children attending sectarian elementary and secondary schools on the premises of those schools). 27See cases cited in the preceding two footnotes.

vided a sign-language interpreter for a deaf student attending a

sectarian secondary school.23 In contrast, the Court has struck

down tax benefit and educational voucher programs where the initial beneficiaries have been limited largely to the universe of parents of children attending sectarian schools and where the aid, as

a consequence, has been virtually certain to go to the sectarian

schools.24

In applying the primary effect and excessive entanglement

tests, the Court has also drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be

constitutionally ineligible for direct public aid. Direct aid to

religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be

limited to secular use in such entities and, as a consequence, it has

a primary effect of advancing religion.25 Moreover, any effort to

limit the use of public aid by such entities to secular use inevitably

falls afoul of the excessive entanglement test, according to the

Court, because the risk of diversion of the aid to religious use is

so great that it necessitates an intrusive government monitoring.26

But direct aid to religious entities that are not pervasively sectarian, the Court has held, is constitutionally permissible, because the

secular functions of such entities can be distinguished from their

religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter,

this distinction has had its most serious consequences for programs

providing aid directly to sectarian elementary and secondary

schools, because the Court has, until recently, presumed such

schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.27 The Court has presumed to the

contrary with respect to religiously-affiliated colleges, hospitals,

54 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

28 Bradfield v. Roberts, 175 U.S. 291 (1899) (public subsidy of the construction

of a wing of a Catholic hospital on condition that it be used to provide care for the

poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (program of grants to colleges, including religiously-affiliated ones, for the construction of academic buildings

upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) (program of

general purpose grants to colleges in the state, including religiously-affiliated ones,

upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to public

and private nonprofit organizations, including religious ones, for the prevention of

adolescent pregnancies upheld). 29 521 U.S. 203 (1997). 30 120 S. Ct. 2530 (2000). 31 473 U.S. 402 (1985). 32 421 U.S. 349 (1975). 33 433 U.S. 229 (1977). 34 473 U.S. 373 (1985). 35 521 U.S. 203 (1994). 36 120 S. Ct. 2530 (2000).

and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.28

In its most recent decisions the Court has modified both the

primary effect and excessive entanglement prongs of the Lemon

test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned

several prior decisions imposing tight constraints on such aid. In

Agostini v. Felton 29 the Court, in a 5 to 4 decision, abandoned the

presumptions that public school teachers giving instruction on the

premises of sectarian elementary and secondary schools will be so

affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling

monitoring of their services is constitutionally necessary. In Mitchell v. Helms,30 in turn, it abandoned the presumptions that such

schools are so pervasively sectarian that their secular educational

functions cannot be differentiated from their religious educational

functions and that direct aid to their educational functions, consequently, violates the Establishment Clause. In reaching these

conclusions and upholding the aid programs in question, the Court

overturned its prior decision in Aguilar v. Felton 31 and parts of its

decisions in Meek v. Pittenger,32 Wolman v. Walter,33 and Grand

Rapids School District v. Ball.34

Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved over time, particularly as it concerns

public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any

given form of aid; and in both Agostini v. Felton 35 and Mitchell v.

Helms 36 the Court left open the possibility of a further evolution

in its thinking. Nonetheless, the cases give substantial guidance.

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 55

37 509 U.S. 1 (1993). 38 521 U.S. 203 (1997). 39 473 U.S. 402 (1985). 40 421 U.S. 349 (1975). 41 473 U.S. 373 (1985). 42 474 U.S. 481 (1986).

[P. 985, add to text following n.81:]

The Court’s more recent decisions, however, have rejected the

reasoning and overturned the results of several of these decisions.

In two rulings the Court reversed course with respect to the constitutionality of public school personnel providing educational services on the premises of pervasively sectarian schools. First, in

Zobrest v. Catalina Foothills School District 37 the Court held the

public subsidy of a sign-language interpreter for a deaf student attending a parochial school to create no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and

the interpreter had no role in selecting or editing the content of

any of the lessons. Reviving the child benefit theory of its earlier

cases, the Court said that ‘‘[t]he service at issue in this case is part

of a general government program that distributes benefits neutrally to any child qualifying as ‘handicapped’ under the IDEA,

without regard to the ‘sectarian-nonsectarian, or public-nonpublic

nature’ of the school the child attends.’’

Secondly, and more pointedly, the Court in Agostini v. Felton 38

overturned both the result and the reasoning of its decision in

Aguilar v. Felton 39 striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger 40 and Grand Rapids School District v.

Ball.41 The assumptions on which those decisions had rested, the

Court explicitly stated, had been ‘‘undermined’’ by its more recent

decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,42 it said, had repudiated the notions

that the placement of a public employee in a sectarian school creates an ‘‘impermissible symbolic link’’ between government and religion, that ‘‘all government aid that directly aids the educational

function of religious schools’’ is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of

inculcating religion, and that ‘‘pervasive monitoring of [such] teachers is required.’’ The proper criterion under the primary effect

prong of the Lemon test, the Court asserted, is religious neutrality,

i.e., whether ‘‘aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available

to both religious and secular beneficiaries on a nondiscriminatory

56 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

43 In Agostini the Court nominally eliminated entanglement as a separate prong

of the Lemon test. ‘‘[T]he factors we use to assess whether an entanglement is ‘excessive,’ ’’ the Court stated, ‘‘are similar to the factors we use to examine ‘effect.’ ’’

‘‘Thus,’’ it concluded, ‘‘it is simplest to recognize why entanglement is significant and

treat it—as we did in Walz—as an aspect of the inquiry into a statute’s effect.’’

Agostini v. Felton, supra, at 232, 233. 44 Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the

Court’s ruling, contending that the Establishment Clause mandates a ‘‘flat ban on

[the] subsidization’’ of religion (521 U.S. at 243) and that the Court’s contention that

recent cases had undermined the reasoning of Aguilar was a ‘‘mistaken reading’’ of

the cases. Id. at 248. Justice Breyer joined in the second dissenting argument. 45 120 S. Ct. 2530 (2000). 46 421 U.S. 349 (1975). 47 433 U.S. 229 (1977).

basis.’’ 43 Finding the Title I program to meet that test, the Court

concluded that ‘‘accordingly, we must acknowledge that Aguilar, as

well as the portion of Ball addressing Grand Rapids’ Shared Time

program, are no longer good law.’’ 44

Most recently, in Mitchell v. Helms 45 the Court abandoned the

presumptions that religious elementary and secondary schools are

so pervasively sectarian that they are constitutionally ineligible to

participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be

subject to an intrusive and constitutionally fatal monitoring. At

issue in the case was a federal program providing funds to local

educational agencies to provide instructional materials and equipment such as computer hardware and software, library books,

movie projectors, television sets, VCRs, laboratory equipment,

maps, and cassette recordings to public and private elementary and

secondary schools. Virtually identical programs had previously

been held unconstitutional by the Court in Meek v. Pittenger 46 and

Wolman v. Walter.47 But in this case the Court overturned those

decisions and held the program to be constitutional.

The Justices could agree on no majority opinion in Mitchell but

instead joined in three different opinions. The opinions of Justice

Thomas, joined by Chief Justice Rehnquist and Justices Scalia and

Kennedy, and of Justice O’Connor, joined by Justice Breyer, found

the program constitutional. They agreed that to pass muster under

the primary effect prong of the Lemon test direct public aid has to

be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds their secular

educational functions are ‘‘inextricably intertwined’’ with their religious educational functions, i.e., that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 57

48 Justice O’Connor also cited several other factors as ‘‘sufficient’’ to ensure the

program’s constitutionality, without saying whether they were ‘‘constitutionally necessary’’—that the aid supplemented rather than supplanted the school’s educational

functions, that no funds ever reached the coffers of the sectarian schools, and that

there were various administrative regulations in place providing for some degree of

monitoring of the schools’ use of the aid.

materials were secular in nature and were distributed according to

neutral criteria. It made no difference whether the schools used the

aid for purposes of religious indoctrination or not. But that was not

sufficient for Justice O’Connor. She adhered to the view that direct

public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be

honored by the teachers in the sectarian schools and that the risk

that the aid would be used for religious purposes was not so great

as to require an intrusive and entangling government monitoring.48

Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds the Establishment Clause bars ‘‘aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.’’ Adhering to the ‘‘substantive principle of no aid’’

first articulated in the Everson case, he contended that direct aid

to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further

argued that the aid in this case had been so diverted.

As the opinion upholding the program’s constitutionality on the

narrowest grounds, Justice O’Connor’s opinion provides the most

current guidance on the standards governing the constitutionality

of aid programs directly benefiting sectarian elementary and secondary schools.

[P. 987, replace the first sentence of the first full paragraph:]

The limits of the Nyquist holding were clarified in 1983.

[P. 988, add to n.92:]

Similar reasoning led the Court to rule that provision of a sign-language interpreter to a deaf student attending a parochial school is permissible as part of a neutral program offering such services to all students regardless of what school they

attend. Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993). The interpreter,

the Court noted additionally, merely transmits whatever material is presented, and

neither adds to nor subtracts from the school’s sectarian environment. Id. at 13.

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

[P. 995, revise n.121 to read:]

505 U.S. 577 (1992).

58 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

49 120 S. Ct. 2266 (2000).

[P. 996, add to text at end of section:]

In Santa Fe Independent School District v. Doe 49 the Court

held a school district’s policy permitting high school students to

vote on whether to have an ‘‘invocation and/or prayer’’ delivered

prior to home football games by a student elected for that purpose

to violate the Establishment Clause. It found the policy to violate

each one of the tests it has formulated for Establishment Clause

cases. The preference given for an ‘‘invocation’’ in the text of the

school district’s policy, the long history of pre-game prayer led by

a student ‘‘chaplain’’ in the school district, and the widespread perception that ‘‘the policy is about prayer,’’ the Court said, made clear

that its purpose was not secular but was to preserve a popular

state-sponsored religious practice in violation of the first prong of

the Lemon test. Moreover, it said, the policy violated the coercion

test by forcing unwilling students into participating in a religious

exercise. Some students—the cheerleaders, the band, football players—had to attend, it noted, and others were compelled to do so by

peer pressure. ‘‘The constitutional command will not permit the

District ‘to exact religious conformity from a student as the price’

of joining her classmates at a varsity football game,’’ the Court

held. Finally, it said, the speech sanctioned by the policy was not

private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history

of pre-game prayer, the bias toward religion in the policy itself, the

fact that the message would be ‘‘delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function

conducted on school property’’ and over the school’s public address

system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as ‘‘stamped with the

school’s seal of approval.’’ The Court concluded that ‘‘the policy is

invalid on its face because it establishes an improper majoritarian

election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series

of important school events.’’

—Access of Religious Groups to School Property

[P. 997, add to text following n.130:]

Similarly, public schools may not rely on the Establishment

Clause as grounds to discriminate against religious groups in afterhours use of school property otherwise available for non-religious

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 59

50Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993). The Court

explained that there was ‘‘no realistic danger that the community would think that

the District was endorsing religion,’’ and that the three-part Lemon test would not

have been violated. Id. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court’s reference to Lemon.

‘‘Like some ghoul in a late-night horror movie that repeatedly sits up in its grave

and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again,’’ Justice Scalia lamented. Id. at 398. 51 Rosenberger v. University of Virginia, 515 U.S. 819, 824 (1995). 52 515 U.S. 753 (1995). The Court was divided 7 to 2 on the merits of Pinette,

a vote that obscured continuing disagreement over the proper analytical approach.

The portions of Justice Scalia’s opinion that formed the opinion of the Court were

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

Thomas, and Breyer. A separate part of Justice Scalia’s opinion, joined only by the

Chief Justice and by Justices Kennedy and Thomas, disputed the assertions of Justices O’Connor, Souter, and Breyer that the ‘‘endorsement’’ test should be applied.

Dissenting Justice Stevens thought that allowing the display on the Capitol grounds

did carry ‘‘a clear image of endorsement,’’ and Justice Ginsburg’s brief opinion seemingly agreed with that conclusion.

social, civic, and recreational purposes; 50 nor may public colleges

exclude student religious organizations from benefits otherwise provided to a full spectrum of student ‘‘news, information, opinion, entertainment, or academic communications media groups.’’ 51 These

cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of

speech; in regulating private speech in a public forum, government

may not justify discrimination against religious viewpoints as necessary to avoid creating an ‘‘establishment’’ of religion.

—Religion in Governmental Observances

[P. 1002, add new heading following n.163:]

Religious Displays on Government Property

[P. 1004, add new paragraph following n.174:]

In Capitol Square Review and Advisory Board v. Pinette,52 the

Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled

that Ohio violated free speech rights by refusing to allow the Ku

Klux Klan to display an unattended cross during the Christmas

season in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the State had allowed

a broad range of speakers and a variety of unattended displays, the

State could regulate the expressive content of such speeches and

displays only if the restriction was necessary, and narrowly drawn,

to serve a compelling state interest. The Court recognized that

compliance with the Establishment Clause can be a sufficiently

compelling reason to justify content-based restrictions on speech,

60 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

53 512 U.S. 687 (1994). Only four Justices (Souter, Blackmun, Stevens, and

Ginsburg) thought that the Grendel’s Den principle applied; in their view the distinction that the delegation was to a village electorate rather than to a religious

body ‘‘lack[ed] constitutional significance’’ under the peculiar circumstances of the

case.

but saw no need to apply this principle when permission to display

a religious symbol is granted through the same procedures, and on

the same terms, required of other private groups seeking to convey

non-religious messages.

—Miscellaneous

[P. 1005, add to text at end of section:]

Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet,53 invalidated a New York

law creating a special school district for an incorporated village

composed exclusively of members of one small religious sect. The

statute failed ‘‘the test of neutrality,’’ the Court concluded, since it

delegated power ‘‘to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism.’’ It was the ‘‘anomalously case-specific nature of the legislature’s exercise of authority’’ that left the Court ‘‘without any direct

way to review such state action’’ for conformity with the neutrality

principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general

law, the Court explained, there was no way of knowing whether

the legislature would grant similar benefits on an equal basis to

other religious and non-religious groups.

FREE EXERCISE OF RELIGION

[P. 1007, add to n.188:]

Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07 (1994)

(‘‘accommodation is not a principle without limits;’’ one limitation is that ‘‘neutrality

as among religions must be honored’’).

—The Jehovah’s Witnesses Cases

[P. 1010, add to n.201:]

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

(Santeria faith).

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 61

54 508 U.S. 520, 531 (1993). 55Pub. L. No. 103–141, 107 Stat. 1488 (1993); 42 U.S.C. § § 2000bb to 2000bb–

4. 56Pub. L. No. 103–141, § 2(b)(1) (citations omitted). Congress also avowed a purpose of providing ‘‘a claim or defense to persons whose religious exercise is substantially burdened by government.’’ § 2(b)(2). 57 521 U.S. 507 (1997).

—Free Exercise Exemption From General Governmental Requirements

[P. 1018, add new footnote following comma after word ‘‘treatment’’

in third sentence of paragraph beginning after n.253:]

This much was made clear by Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), striking down a city ordinance that prohibited ritual animal sacrifice but that allowed other forms of animal slaughter.

[P. 1018, add to text at end of third sentence of same paragraph:]

That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in

Church of the Lukumi Babalu Aye v. City of Hialeah: ‘‘our cases establish the general proposition that a law that is neutral and of

general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’’ 54

[P. 1019, add new paragraphs following n.257:]

Because of the broad ramifications of Smith, the political processes were soon utilized in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),55 Congress sought to supersede Smith

and substitute a statutory rule of decision for free exercise cases.

The Act provided that laws of general applicability—federal, state,

and local—may substantially burden free exercise of religion only

if they further a compelling governmental interest and constitute

the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was ‘‘to restore the compelling interest test

as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to

guarantee its application in all cases where free exercise of religion

is substantially burdened.’’ 56 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores 57 held the Act to be unconstitutional as applied to the States,

6 to 3. In applying RFRA to the States Congress had utilized its

power under § 5 of the Fourteenth Amendment to enact ‘‘appropriate legislation’’ to enforce the substantive protections of the

Amendment, including the religious liberty protections incorporated in the Due Process Clause. But the Court held that RFRA

62 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

58 521 U.S. at 519. 59 521 U.S. at 533–34. 60 521 U.S. at 536. 61Late in the second session of the 106th Congress, the House and the Senate

passed, and President Clinton signed into law, the ‘‘Religious Land Use and Institutionalized Persons Act of 2000.’’ The Act utilizes Congress’ spending power and its

power over interstate commerce to impose a strict scrutiny test on state and local

zoning and landmarking laws and regulations which impose a substantial burden

on an individual’s or institution’s exercise of religion. It utilizes the same powers

to impose a strict scrutiny test on state and local governments for any substantial

burdens they impose on the exercise of religion by persons in state or locally run

institutions such as prisons, mental hospitals, juvenile detention facilities, and nursing homes. See Pub. L. No. 106–274 (2000). 62See, e.g., In re Young, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811

(1998) (lower court held RFRA to be constitutional as applied to federal bankruptcy

law).63Through interpretation of the Fourteenth Amendment, the prohibition extends to the States as well. See discussion on incorporation, main text, pp. 957–64. 64See discussion on state action, main text, pp. 1786–1802.

exceeded Congress’ power under § 5, because the measure did not

simply enforce a constitutional right but substantively altered that

right. ‘‘Congress,’’ the Court said, ‘‘does not enforce a constitutional

right by changing what the right is.’’ 58 Moreover, it said, RFRA

‘‘reflects a lack of proportionality or congruence between the means

adopted and the legitimate end to be achieved . . . [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare

of their citizens.’’ 59 ‘‘RFRA,’’ the Court concluded, ‘‘contradicts vital

principles necessary to maintain separation of powers and the federal balance.’’ 60

Boerne does not close the books on Smith, however. It remains

an open issue whether RFRA remains valid as applied to the Federal Government, and Congress has already used powers other

than § 5 to try to re-apply a strict scrutiny standard to the States.61

These issues ensure continuing litigation over the appropriate test

for free exercise cases.62

FREEDOM OF EXPRESSION—SPEECH AND PRESS

Adoption and the Common Law Background

[P. 1025, add to text at end of section:]

The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons.63 This

leads to a ‘‘state action’’ (or ‘‘governmental action’’) limitation similar to that applicable to the Fourteenth Amendment.64 The limitation has seldom been litigated in the First Amendment context, but

there is no obvious reason why analysis should differ markedly

from Fourteenth Amendment state action analysis. Both contexts

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 63

65 CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief

Justice Burger). 66Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting

Ex parte Virginia, 100 U.S. 339, 346–47 (1880)). The Court refused to be bound by

the statement in Amtrak’s authorizing statute that the corporation is ‘‘not . . . an

agency or establishment of the United States Government.’’ This assertion can be

effective ‘‘only for purposes of matters that are within Congress’ control,’’ the Court

explained. ‘‘[I]t is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights

of citizens affected by its actions.’’ 513 U.S. at 392. 67 In CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973), the Court held that

a broadcast licensee could refuse to carry a paid editorial advertisement. Chief Justice Burger, joined only by Justices Stewart and Rehnquist in that portion of his

opinion, reasoned that a licensee’s refusal to accept such an ad did not constitute

‘‘governmental action’’ for purposes of the First Amendment. ‘‘The First Amendment

does not reach acts of private parties in every instance where the Congress or the

[Federal Communications] Commission has merely permitted or failed to prohibit

such acts.’’ Id. at 119.

require ‘‘cautious analysis of the quality and degree of Government

relationship to the particular acts in question.’’ 65 In holding that

the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that ‘‘[t]he Constitution constrains governmental action ‘by

whatever instruments or in whatever modes that action may be

taken.’ . . . [a]nd under whatever congressional label.’’ 66 The relationship of the government to broadcast licensees affords other opportunities to explore the breadth of ‘‘governmental action.’’ 67

The Doctrine of Prior Restraint

—Obscenity and Prior Restraint

[P. 1033, add to n.69:]

But cf. Alexander v. United States, 509 U.S. 544 (1993) (RICO forfeiture of the

entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses, based on the predicate acts of selling four magazines and three videotapes, does not constitute a prior restraint and is not invalid

as ‘‘chilling’’ protected expression that is not obscene).

Freedom of Belief

—Flag Salute Cases

[P. 1054, add to n.177:]

The First Amendment does not preclude the Government from ‘‘compel[ling] financial contributions that are used to fund advertising,’’ provided such contributions

do not finance ‘‘political or ideological’’ views. Glickman v. Wileman Bros. & Elliott,

Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing

orders that assessed fruit producers to cover the expenses of generic advertising of

California fruit). Nor does the First Amendment preclude a public university from

charging its students an activity fee that is used to support student organizations

that engage in extracurricular speech, provided the money is allocated to those

64 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

68 515 U.S. 557 (1995). 69 515 U.S. at 580. 70 515 U.S. at 580–81. 71 120 S. Ct. 2446 (2000). 72 120 S. Ct. at 2451.

groups by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000) (upholding fee except to the extent

a student referendum substituted majority determinations for viewpoint neutrality

in allocating funds).

—Imposition of Consequences for Holding Certain Beliefs

[P. 1054, add to n.181 following citation to Barclay v. Florida:]

Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced

because the defendant intentionally selected his victim on account of the victim’s

race),

Right of Association

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

When application of a public accommodations law was viewed

as impinging on an organization’s ability to present its message,

the Court found a First Amendment violation. Massachusetts could

not require the private organizers of Boston’s St. Patrick’s Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members’ gay and lesbian identity, the Court held in

Hurley v. Irish-American Gay Group.68 To do so would require parade organizers to promote a message they did not wish to promote. The Roberts and New York City cases were distinguished as

not involving ‘‘a trespass on the organization’s message itself.’’ 69

Those cases stood for the proposition that the State could require

equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to

the parade might similarly be mandated, the Court reasoned, the

gay group ‘‘could nonetheless be refused admission as an expressive

contingent with its own message just as readily as a private club

could exclude an applicant whose manifest views were at odds with

a position taken by the club’s existing members.’’ 70

In Boy Scouts of America v. Dale,71 the Court held that application of New Jersey’s public accommodations law to require the

Boy Scouts of America to admit an avowed homosexual as an adult

member violated the organization’s First Amendment associational

rights. Citing Hurley, the Court held that ‘‘[t]he forced inclusion of

an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.’’ 72 The Boy Scouts, the Court found, engages in expressive

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 65

73 120 S. Ct. at 2452. 74 120 S. Ct. at 2453. 75 120 S. Ct. at 2453. 76 120 S. Ct. at 2454. 77O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation

that city removed petitioner’s company from list of those offered towing business on

a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the

First Amendment). See also Board of County Comm’rs v. Umbehr, 518 U.S. 668

(1996) (termination or non-renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment).

78 513 U.S. 454 (1995). 79The plaintiff class consisted of all Executive Branch employees below grade

GS–16. Also covered by the ban were senior executives, Members of Congress, and

other federal officers, but the possibility of improprieties by these groups did not

justify application of the ban to ‘‘the vast rank and file of federal employees below

grade GS–16.’’

activity in seeking to transmit a system of values, which include

being ‘‘morally straight’’ and ‘‘clean.’’ 73 The Court ‘‘accept[ed] the

Boy Scouts’ assertion’’ that the organization teaches that homosexual conduct is not morally straight.74 The Court also gave ‘‘deference to [the] association’s view of what would impair its expression.’’ 75 Allowing a gay rights activist to serve in the Scouts would

‘‘force the organization to send a message . . . that the Boy Scouts

accepts homosexual conduct as a legitimate form of behavior.’’ 76

—Political Association

[P. 1063, add to text before first full paragraph on page:]

In 1996 the Court extended Elrod and Branti to protect independent government contractors.77

Particular Governmental Regulations Which Restrict Expression

[P. 1081, change subheading to:]

—Government as Employer: Political and Other Outside Activities

[P. 1084, add new paragraph to end of section:]

The Hatch Act cases were distinguished in United States v.

National Treasury Employees Union,78 in which the Court struck

down an honoraria ban as applied to lower-level employees of the

Federal Government. The honoraria ban suppressed employees’

right to free expression while the Hatch Act sought to protect that

right, and also there was no evidence of improprieties in acceptance

of honoraria by members of the plaintiff class of federal employees.79 The Court emphasized further difficulties with the ‘‘crudely

crafted’’ honoraria ban: it was limited to expressive activities and

had no application to other sources of outside income, it applied

66 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

80 513 U.S. at 477. 81 Board of County Comm’rs v. Umbehr, 518 U.S. 668, 673 (1996). 82Timmons v. Twin City Area New Party, 520 U.S. 351 (1997). 83 520 U.S. at 358 (internal quotation marks omitted). 84 520 U.S. at 369–70.

when neither the subjects of speeches and articles nor the persons

or groups paying for them bore any connection to the employee’s

job responsibilities, and it exempted a ‘‘series’’ of speeches or articles without also exempting individual articles and speeches. These

‘‘anomalies’’ led the Court to conclude that the ‘‘speculative benefits’’ of the ban were insufficient to justify the burdens it imposed

on expressive activities.80

—Government as Employer: Free Expression Generally

[P. 1089, add to text following n.113:]

The protections applicable to government employees have been

extended to independent government contractors, the Court announcing that ‘‘the Pickering balancing test, adjusted to weigh the

government’s interests as contractor rather than as employer, determines the extent of their protection.’’ 81

[P. 1089, add to n.116:]

In Waters v. Churchill, 511 U.S. 661 (1994), the Court grappled with what procedural protections may be required by the First Amendment when public employees are dismissed on speech-related grounds, but reached no consensus.

—Government as Regulator of the Electoral Process: Elections

[P. 1095, add to text following n.143:]

Minnesota, however, could prohibit a candidate from appearing

on the ballot as the candidate of more than one party.82 The Court

wrote that election ‘‘[r]egulations imposing severe burdens on

plaintiffs’ [associational] rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger

less exacting review, and a State’s important regulatory interests

will usually be enough to justify reasonable nondiscriminatory restrictions.’’ 83 Minnesota’s ban on ‘‘fusion’’ candidates was not severe, as it left a party that could not place another party’s candidate on the ballot free to communicate its preference for that candidate by other means, and the ban was justified by ‘‘valid state

interests in ballot integrity and political stability.’’ 84

[P. 1097, add to n.150:]

See also Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996)

(the First Amendment bars application of the Party Expenditure Provision of the

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 67

85 120 S. Ct. 897 (2000). 86 120 S. Ct. at 901. 87 120 S. Ct. at 905. 88 120 S. Ct. at 907–08. 89 120 S. Ct. at 909. 90 120 S. Ct. at 909.

Federal Election Campaign Act, 2 U.S.C. § 441a(d)(3), to expenditures that the political party makes independently, without coordination with the candidate).

[P. 1098, add to text following n.155:]

In Nixon v. Shrink Missouri Government PAC,85 the Court

held that Buckley v. Valeo ‘‘is authority for state limits on contributions to state political candidates,’’ but state limits ‘‘need not be

pegged to Buckley’s dollars.’’ 86 The Court in Nixon justified the

limits on contributions on the same grounds that it had in Buckley:

‘‘preventing corruption and the appearance of it that flows from

munificent campaign contributions.’’ 87 Further, Nixon did ‘‘not

present a close call requiring further definition of whatever the

State’s evidentiary obligation may be’’ to justify the contribution

limits, as ‘‘there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and

no reason to question the existence of a corresponding suspicion

among voters.’’ 88 As for the amount of the contribution limits, Missouri’s fluctuated in accordance with the consumer price index,

and, when suit was filed, ranged from $275 to $1,075, depending

on the state office or size of constituency. The Court upheld these

limits, writing that, in Buckley, it had ‘‘rejected the contention that

$1,000, or any other amount, was a constitutional minimum below

which legislatures could not regulate.’’ 89 The relevant inquiry,

rather, was ‘‘whether the contribution limitation was so radical in

effect as to render political association ineffective, drive the sound

of a candidate’s voice below the level of notice, and render contributions pointless.’’ 90

[P. 1098, add to n.157:]

The Court subsequently struck down a Colorado statute that required ballotinitiative proponents, if they pay circulators, to file reports disclosing circulators’

names and addresses and the total amount paid to each circulator. Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999). Although the Court upheld a

requirement that proponents’ names and the total amount they have spent to collect

signatures be disclosed, as this served ‘‘as a control or check on domination of the

initiative process by affluent special interest groups’’ (id. at 202), it found that ‘‘[t]he

added benefit of revealing the names of paid circulators and the amounts paid to

each circulator . . . is hardly apparent and has not been demonstrated.’’ Id. at 203.

The Court also struck down a requirement that circulators be registered voters, as

the state’s interest in ensuring that circulators would be amenable to subpoenas was

served by the requirement that they be residents—a requirement on which the

Court had no occasion to rule.

68 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

91 524 U.S. 569, 572 (1998). 92 524 U.S. at 587. 93 524 U.S. at 581. Justice Scalia, in a concurring opinion joined by Justice

Thomas, claimed that this interpretation of the statute ‘‘gutt[ed] it.’’ Id. at 590. He

believed that the statute ‘‘establishes content- and viewpoint-based criteria upon

which grant applications are to be evaluated. And that is perfectly constitutional.’’

Id. 94 524 U.S. at 585. 95 524 U.S. at 588–89.

—Government and Power of the Purse

[P. 1113, add to text following n.236:]

In National Endowment for the Arts v. Finley, the Supreme

Court upheld the constitutionality of a federal statute requiring the

NEA, in awarding grants, to ‘‘tak[e] into consideration general

standards of decency and respect for the diverse beliefs and values

of the American public.’’ 91 The Court acknowledged that, if the

statute were ‘‘applied in a manner that raises concern about the

suppression of disfavored viewpoints,’’ 92 then such application

might be unconstitutional. The statute on its face, however, is constitutional because it ‘‘imposes no categorical requirement,’’ being

merely ‘‘advisory.’’ 93 ‘‘Any content-based considerations that may

be taken into account in the grant-making process are a consequence of the nature of arts funding . . . . The ‘very assumption’

of the NEA is that grants will be awarded according to the ‘artistic

worth of competing applications,’ and absolute neutrality is simply

‘inconceivable.’ ’’ 94 The Court also found that the terms of the statute, ‘‘if they appeared in a criminal statute or regulatory scheme,

. . . could raise substantial vagueness concerns . . . . But when the

Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.’’ 95

Governmental Regulation of Communications Industries

—Commercial Speech

[P. 1116, add to n.12:]

Shapero was distinguished in Florida Bar v. Went For It, Inc., 515 U.S. 618

(1995), a 5 to 4 decision upholding a prohibition on targeted direct-mail solicitations

to victims and their relatives for a 30-day period following an accident or disaster.

‘‘Shapero dealt with a broad ban on all direct mail solicitations’’ (id. at 629), the

Court explained, and was not supported, as Florida’s more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Kennedy

disagreed that there was a valid distinction, pointing out that in Shapero the Court

had said that ‘‘the mode of communication [mailings versus potentially more abusive

in-person solicitation] makes all the difference,’’ and that mailings were at issue in

both Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero, 486 U.S. at 475).

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 69

96 Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) (also ruling that

Accountancy Board could not reprimand the CPA, who was also a licensed attorney,

for truthfully listing her CPA credentials in advertising for her law practice). 97 Edenfield v. Fane, 507 U.S. 761, 775 (1993). 98 507 U.S. at 777.

[P. 1116, add to text following n.13:]

, or prohibit a certified public accountant from holding herself

out as a certified financial planner.96

[P. 1116, add to text following n.14:]

The Court later refused, however, to extend this principle to

in-person solicitation by certified public accountants, explaining

that CPAs, unlike attorneys, are not professionally ‘‘trained in the

art of persuasion,’’ and that the typical business executive client of

a CPA is ‘‘far less susceptible to manipulation’’ than was the accident victim in Ohralik.97 To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as

ambulance chasing, the Court explained, would dilute commercial

speech protection ‘‘almost to nothing.’’ 98

[P. 1117, delete last two sentences of paragraph continued from p.

1116, and substitute the following:]

The Court has developed a four-pronged test to measure the

validity of restraints upon commercial expression.

[P. 1117, add to n.19 following San Francisco Arts & Athletics citation:]

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (government’s interest in curbing strength wars among brewers is substantial, but interest in facilitating state

regulation of alcohol is not substantial). Contrast United States v. Edge Broadcasting Co., 509 U.S. 418 (1993), finding a substantial federal interest in facilitating

state restrictions on lotteries. ‘‘Unlike the situation in Edge Broadcasting,’’ the

Coors Court explained, ‘‘the policies of some States do not prevent neighboring

States from pursuing their own alcohol-related policies within their respective borders.’’ 514 U.S. at 486.

[P. 1118, add to n.20 following Bolger citation:]

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government’s interest in curbing strength wars among brewers, given the inconsistencies and ‘‘overall irrationality’’ of the regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993)

(Florida’s ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients).

[P. 1118, add to text following n.20:]

Instead, the regulation must ‘‘directly advance’’ the governmental interest. The Court resolves this issue with reference to agVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00070 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
70 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

99 United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993) (‘‘this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity’’). 100 507 U.S. 410 (1993). See also Edenfield v. Fane, 507 U.S. 761 (1993), decided

the same Term, relying on the ‘‘directly advance’’ third prong of Central Hudson to

strike down a ban on in-person solicitation by certified public accountants. 101 507 U.S. at 424. 102 507 U.S. at 426. The Court also noted the ‘‘minute’’ effect of removing 62

‘‘commercial’’ newsracks while 1,500 to 2,000 other newsracks remained in place. Id.

at 418. 103 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).

gregate effects, and does not limit its consideration to effects on the

challenging litigant.99

[P. 1118, add to n.21 following Bolger citation:]

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there are less intrusive alternatives—e.g., direct limitations on alcohol content of beer—to prohibition on display

of alcohol content on beer label).

[P. 1118, add to n.22:]

In a 1993 opinion the Court elaborated on the difference between ‘‘reasonable

fit’’ and least restrictive alternative. ‘‘A regulation need not be ‘absolutely the least

severe that will achieve the desired end,’ but if there are numerous and obvious

less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.’’

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n.13 (1993).

[P. 1118, delete remainder of section after n.22, and add the following:]

The ‘‘reasonable fit’’ standard has some teeth, the Court made

clear in City of Cincinnati v. Discovery Network, Inc.,100 striking

down a city’s prohibition on distribution of ‘‘commercial handbills’’

through freestanding newsracks located on city property. The city’s

aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited ‘‘commercial’’ publications and permitted ‘‘newspapers’’ bore

‘‘no relationship whatsoever’’ to this legitimate interest.101 The city

could not, the Court ruled, single out commercial speech to bear

the full onus when ‘‘all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at

fault.’’ 102 By contrast, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a State

that prohibits lotteries, while allowing broadcast of such ads by

stations in States that sponsor lotteries. There was a ‘‘reasonable

fit’’ between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering

with policies of neighboring States that promote lotteries.103 The

prohibition ‘‘directly served’’ the congressional interest, and could

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 71

104 508 U.S. at 428. 105Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173

(1999). 106 527 U.S. at 190. 107 527 U.S. at 195. 108Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328,

345–46 (1986). For discussion of the case, see P. Kurland, Posadas de Puerto Rico

v. Tourism Company: ‘‘ ’Twas Strange, ’Twas Passing Strange; ’Twas Pitiful, ’Twas

Wondrous Pitiful,’’ 1986 SUP. CT. REV. 1. 109 In Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (invalidating a federal

ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on Posadas, pointing out that the statement in Posadas had been made only

after a determination that the advertising could be upheld under Central Hudson.

The Court found it unnecessary to consider the greater-includes-lesser argument in

United States v. Edge Broadcasting Co., 509 U.S. 418, 427 (1993), upholding

through application of Central Hudson principles a ban on broadcast of lottery ads. 110 517 U.S. 484 (1996).

be applied to a broadcaster whose principal audience was in an adjoining lottery State, and who sought to run ads for that State’s lottery.104

In 1999 the Court struck down a provision of the same statute

as applied to advertisements for private casino gambling that are

broadcast by radio and television stations located in a State where

such gambling is legal.105 The Court emphasized the interrelatedness of the four parts of the Central Hudson test; e.g., though the

government has a substantial interest in reducing the social costs

of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on

commercial speech materially advances its asserted interest and

constitutes a reasonable ‘‘fit.’’ In this case, ‘‘[t]he operation of [18

U.S.C.] § 1304 and its attendant regulatory regime is so pierced by

exemptions and inconsistencies that the Government cannot hope

to exonerate it.’’ 106 ‘‘[T]he regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks

the Government purports to fear, while banning messages unlikely

to cause any harm at all.’’ 107

In a 1986 decision the Court had asserted that ‘‘the greater

power to completely ban casino gambling necessarily includes the

lesser power to ban advertising of casino gambling.’’ 108 Subsequently, however, the Court has eschewed reliance on Posadas,109

and it seems doubtful that the Court would again embrace the

broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court’s

very holding in 44 Liquormart, Inc. v. Rhode Island,110 striking

down the State’s ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected PosaVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00072 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
72 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

111 517 U.S. at 510 (opinion of Stevens, joined by Justices Kennedy, Thomas,

and Ginsburg). The Stevens opinion also dismissed the Posadas ‘‘greater-includesthe-lesser argument’’ as ‘‘inconsistent with both logic and well-settled doctrine,’’

pointing out that the First Amendment ‘‘presumes that attempts to regulate speech

are more dangerous than attempts to regulate conduct.’’ Id. at 511–12. 112 517 U.S. at 531–32 (concurring opinion of O’Connor, joined by Chief Justice

Rehnquist and by Justices Souter and Breyer). 113 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425

U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But

in Linmark Associates v. Township of Willingboro, 431 U.S. 85, 93–94 (1977), the

Court refused to accept a times, places, and manner defense of an ordinance prohibiting ‘‘For Sale’’ signs on residential lawns. First, ample alternative channels of communication were not available, and, second, the ban was seen as a content limitation.114 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425

U.S. 748, 771–72 n.24 (1976); Central Hudson Gas & Electric Co. v. Public Serv.

Comm’n, 447 U.S. 557, 571 n.13 (1980). 115 Bates v. State Bar of Arizona, 433 U.S. 350, 379–81 (1977); Central Hudson

Gas & Electric Co. v. Public Serv. Comm’n, 447 U.S. 557, 565 n.8 (1980). 116 Bates v. State Bar of Arizona, 433 U.S. 350, 383–84 (1977); Ohralik v. Ohio

State Bar Ass’n, 436 U.S. 447, 456 (1978). Requirements that advertisers disclose

more information than they otherwise choose to are upheld ‘‘as long as [they] are

reasonably related to the State’s interest in preventing deception of consumers,’’ the

Court explaining that ‘‘[t]he right of a commercial speaker not to divulge accurate

information regarding his services is not . . . a fundamental right’’ requiring strict

scrutiny of the disclosure requirement. Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 651 & n.14 (1985) (upholding requirement that attorney’s contingent

fees ad mention that unsuccessful plaintiffs might still be liable for court costs).

das, calling it ‘‘erroneous,’’ declining to give force to its ‘‘highly deferential approach,’’ and proclaiming that a State ‘‘does not have the

broad discretion to suppress truthful, nonmisleading information

for paternalistic purposes that the Posadas majority was willing to

tolerate.’’ 111 Four other Justices concluded that Posadas was inconsistent with the ‘‘closer look’’ that the Court has since required in

applying the principles of Central Hudson.112

The ‘‘different degree of protection’’ accorded commercial

speech has a number of consequences. Somewhat broader times,

places, and manner regulations are to be tolerated.113 The rule

against prior restraints may be inapplicable,114 and disseminators

of commercial speech are not protected by the overbreadth doctrine.115

Different degrees of protection may also be discerned among

different categories of commercial speech. The first prong of the

Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that

a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to

prevent deception.116 But even truthful, non-misleading commercial

speech may be regulated, and the validity of such regulation is

tested by application of the remaining prongs of the Central HudVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00073 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 73

117 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (opinion of

Justice Stevens, joined by Justices Kennedy and Ginsburg).

118See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465 (1978) (upholding ban on in-person solicitation by attorneys due in part to the ‘‘potential for overreaching’’ when a trained advocate ‘‘solicits an unsophisticated, injured, or distressed lay person’’).

119 Compare United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) (upholding federal law supporting state interest in protecting citizens from lottery information) and Florida Bar v. Went For It, Inc., 515 U.S. 618, 631 (1995) (upholding

a 30-day ban on targeted, direct-mail solicitation of accident victims by attorneys,

not because of any presumed susceptibility to overreaching, but because the ban

‘‘forestall[s] the outrage and irritation with the . . . legal profession that the [banned]

solicitation . . . has engendered’’) with Rubin v. Coors Brewing Co., 514 U.S. 476

(1995) (striking down federal statute prohibiting display of alcohol content on beer

labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (striking down

state law prohibiting display of retail prices in ads for alcoholic beverages).

120 Justice Stevens has criticized the Central Hudson test because it seemingly

allows regulation of any speech propounded in a commercial context regardless of

the content of that speech. ‘‘[A]ny description of commercial speech that is intended

to identify the category of speech entitled to less First Amendment protection should

relate to the reasons for permitting broader regulation: namely, commercial speech’s

potential to mislead.’’ Rubin v. Coors Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion). The Justice repeated these views in 1996: ‘‘when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons

unrelated to the preservation of a fair bargaining process, there is far less reason

to depart from the rigorous review that the First Amendment generally demands.’’

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the opinion joined by Justices Kennedy and Ginsburg). Justice Thomas, similarly, wrote

that, in cases ‘‘in which the government’s asserted interest is to keep legal users

of a product or service ignorant in order to manipulate their choices in the marketplace, the Central Hudson test should not be applied because such an ‘interest’ is

per se illegitimate . . . .’’ Greater New Orleans Broadcasting Ass’n, Inc. v. United

States, 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks

omitted).

son test. The test itself does not make further distinctions based on

the content of the commercial message or the nature of the governmental interest (that interest need only be ‘‘substantial’’). Recent

decisions suggest, however, that further distinctions may exist.

Measures aimed at preserving ‘‘a fair bargaining process’’ between

consumer and advertiser 117 may be more likely to pass the test 118

than regulations designed to implement general health, safety, or

moral concerns.119 As the governmental interest becomes further

removed from protecting a fair bargaining process, it may become

more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a ‘‘reasonable fit’’ between

the commercial speech restriction and the governmental interest.120

74 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

121 City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986) (leaving for future decision how the operator’s interests are to be balanced against a community’s interests in limiting franchises and preserving utility space); Turner

Broadcasting System v. FCC, 512 U.S. 622, 636 (1994). 122Turner Broadcasting System v. FCC, 512 U.S. 622, 638–39 (1994). 123 512 U.S. at 661 (referring to the ‘‘bottleneck monopoly power’’ exercised by

cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). See also

Leathers v. Medlock, 499 U.S. 439 (1991) (application of state gross receipts tax to

cable industry permissible even though other segments of the communications

media were exempted). 124 512 U.S. 622 (1994). 125 512 U.S. at 645. ‘‘Deciding whether a particular regulation is content based

or content neutral is not always a simple task,’’ the Court confessed. Id. at 642. Indeed, dissenting Justice O’Connor, joined by Justices Scalia, Ginsburg, and Thomas,

viewed the rules as content-based. Id. at 674–82. 126 391 U.S. 367, 377 (1968). The Court remanded Turner for further factual

findings relevant to the O’Brien test. On remand, the district court upheld the must-

—Radio and Television

[P. 1126, delete last paragraph on page]

—Governmentally Compelled Right of Reply to Newspapers

[P. 1127, add to n.65:]

See also Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995) (State may

not compel parade organizer to allow participation by a parade unit proclaiming

message that organizer does not wish to endorse).

[P. 1127, add new section following n.65:]

Regulation of Cable Television.—The Court has recognized

that cable television ‘‘implicates First Amendment interests,’’ since

a cable operator communicates ideas through selection of original

programming and through exercise of editorial discretion in determining which stations to include in its offering.121 Moreover, ‘‘settled principles of . . . First Amendment jurisprudence’’ govern review of cable regulation; cable is not limited by ‘‘scarce’’ broadcast

frequencies and does not require the same less rigorous standard

of review that the Court applies to regulation of broadcasting.122

Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment.123 The Court in

Turner Broadcasting System v. FCC 124 upheld federal statutory requirements that cable systems carry local commercial and public

television stations. Although these ‘‘must-carry’’ requirements ‘‘distinguish between speakers in the television programming market,’’

they do so based on the manner of transmission and not on the

content the messages conveyed, and hence are content-neutral.125

The regulations could therefore be measured by the ‘‘intermediate

level of scrutiny’’ set forth in United States v. O’Brien.126 Two years

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 75

carry provisions, and the Supreme Court affirmed, concluding that it ‘‘cannot displace Congress’ judgment respecting content-neutral regulations with our own, so

long as its policy is grounded on reasonable factual findings supported by evidence

that is substantial for a legislative determination.’’ Turner Broadcasting System v.

FCC, 520 U.S. 180, 224 (1997). 127 518 U.S. 727, 755 (1996) (invalidating § 10(b) of the Cable Television Consumer Protection and Competition Act of 1992). 128 Upholding § 10(a) of the Act, which permits cable operators to prohibit indecent material on leased access channels; and striking down § 10(c), which permits

a cable operator to prevent transmission of ‘‘sexually explicit’’ programming on public access channels. In upholding § 10(a), Justice Breyer’s plurality opinion cited

FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and noted that cable television ‘‘is

as ‘accessible to children’ as over-the-air broadcasting, if not more so.’’ 518 U.S. at

744.129This section of Justice Breyer’s opinion was joined by Justices Stevens,

O’Connor, and Souter. 518 U.S. at 749. 130 Justice Kennedy, joined by Justice Ginsburg, advocated this approach. 518

U.S. at 791, and took the plurality to task for its ‘‘evasion of any clear legal standard.’’ Id. at 784.

131 Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, advocated this approach. 132 120 S. Ct. 1878 (2000). 133 120 S. Ct. at 1883.

later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in

order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area

Educational Telecommunications Consortium v. FCC 127 found it

unnecessary to determine whether strict scrutiny or some lesser

standard applies, as the restriction was deemed invalid under any

of the alternative tests. There was no opinion of the Court on the

other two holdings in the case,128 and a plurality 129 rejected assertions that public forum analysis,130 or a rule giving cable operators’

editorial rights ‘‘general primacy’’ over the rights of programmers

and viewers,131 should govern.

Subsequently, in United States v. Playboy Entertainment

Group, Inc.,132 the Supreme Court made clear, as it had not in

Denver Consortium, that strict scrutiny applies to content-based

speech restrictions on cable television. The Court struck down a

federal statute designed to ‘‘shield children from hearing or seeing

images resulting from signal bleed,’’ which refers to blurred images

or sounds that come through to non-subscribers.133 The statute required cable operators, on channels primarily dedicated to sexually

oriented programming, either to scramble fully or otherwise fully

block such channels, or to not provide such programming when a

significant number of children are likely to be viewing it, which,

under an FCC regulation meant to transmit the programming only

from 10 p.m. to 6 a.m. The Court apparently assumed that the govVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00076 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
76 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

ernment had a compelling interest in protecting at least some children from sexually oriented signal bleed, but found that Congress

had not used the least restrictive means to do so. Congress in fact

had enacted another provision that was less restrictive and that

served the government’s purpose. This other provision requires

that, upon request by a cable subscriber, a cable operator, without

charge, fully scramble or otherwise fully block any channel to

which a subscriber does not subscribe.

Government Restraint of Content of Expression

—Group Libel, Hate Speech

[P. 1136, add to n.111:]

On the other hand, the First Amendment does permit enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular

race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive

as a permissible element in sentencing, the Court noted. Id. at 485. The Court distinguished R.A.V. as involving a limitation on ‘‘speech’’ rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater

societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke

retaliatory crimes). Id. at 487–88. See generally Laurence H. Tribe, The Mystery of

Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and

Animal Sacrifice, 1993 Sup. Ct. Rev. 1.

—Obscenity

[P. 1152, add to n.14:]

None of these strictures applies, however, to forfeitures imposed as part of a

criminal penalty. Alexander v. United States, 509 U.S. 544 (1993) (upholding RICO

forfeiture of the entire adult entertainment book and film business of an individual

convicted of obscenity and racketeering offenses). Justice Kennedy, dissenting in Alexander, objected to the ‘‘forfeiture of expressive material that had not been adjudged to be obscene.’’ Id. at 578.

—Non-obscene But Sexually Explicit and Indecent Expression

[P. 1161, add to n.61:]

Similar rules apply in regulation of cable TV. In Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727, 755 (1996), the Court, acknowledging that protection

of children from sexually explicit programming is a ‘‘compelling’’ governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck

down a requirement that cable operators segregate and block indecent programming

on leased access channels. The segregate-and-block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to 30

days’ delay in blocking or unblocking a channel, were not sufficiently protective of

adults’ speech and viewing interests to be considered either narrowly or reasonably

tailored to serve the government’s compelling interest in protecting children. In

United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-based speech restriction

on cable TV, struck down a federal statute designed to ‘‘shield children from hearing

or seeing images resulting from signal bleed.’’ Id. at 1883.

The Court seems to be becoming less absolute in viewing the protection of all

minors (regardless of age) from all indecent material (regardless of its educational

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 77

134 521 U.S. 844 (1997). 135The other provision the Court struck down would have prohibited indecent

communications, by telephone, fax, or e-mail, to minors. 136 521 U.S. at 874–75. The Court did not address whether, if less restrictive

alternatives would not be as effective, the Government would then be permitted to

reduce the adult population to only what is fit for children. 137 438 U.S. 726 (1978).

value and parental approval) to be a compelling governmental interest. In striking

down the Communications Decency Act of 1996, the Court would ‘‘neither accept nor

reject the Government’s submission that the First Amendment does not forbid a

blanket prohibition on all ‘indecent’ and ‘patently offensive’ messages communicated

to a 17-year-old—no matter how much value the message may have and regardless

of parental approval. It is at least clear that the strength of the Government’s interest in protecting minors is not equally strong throughout the coverage of this broad

statute.’’ Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997). In Playboy Entertainment Group, 120 S. Ct. at 1892, the Court wrote: ‘‘Even upon the assumption that the Government has an interest in substituting itself for informed

and empowered parents, its interest is not sufficiently compelling to justify this

widespread restriction on speech.’’ The Court also would ‘‘not discount the possibility

that a graphic image could have a negative impact upon a young child’’ (id. at 1893),

thereby suggesting again that it may take age into account when applying strict

scrutiny.

[P. 1161, add to text following n.61:]

In Reno v. American Civil Liberties Union,134 the Court struck

down two provisions of the Communications Decency Act of 1996

(CDA), one of which would have prohibited use of an ‘‘interactive

computer service’’ to display indecent material ‘‘in a manner available to a person under 18 years of age.’’ 135 This prohibition would,

in effect, have banned indecent material from all Internet sites except those accessible by adults only. Although intended ‘‘to deny

minors access to potentially harmful speech . . . , [the CDA’s] burden on adult speech,’’ the Court wrote, ‘‘is unacceptable if less restrictive alternatives would be at least as effective . . . . [T]he Government may not ‘reduc[e] the adult population . . . to . . . only what

is fit for children.’ ’’ 136

In Reno, the Court distinguished FCC v. Pacifica Foundation,137 in which it had upheld the FCC’s restrictions on indecent

radio and television broadcasts, because (1) ‘‘[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not

dependent on any evaluation by an agency familiar with the unique

characteristics of the Internet,’’ (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts ‘‘would justify a criminal prosecution,’’ and (3) radio and television, unlike the Internet, have, ‘‘as a matter of history . . . ‘received the most limited First Amendment protection,’ . . . in large

part because warnings could not adequately protect the listener

from unexpected program content. . . . [On the Internet], the risk of

78 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

138 521 U.S. at 867. 139 120 S. Ct. 1382 (2000). 140 120 S. Ct. at 1392, 1393. 141 120 S. Ct. at 1402. 142 120 S. Ct. at 1405. 143 120 S. Ct. at 1393. The plurality said that, though nude dancing is ‘‘expressive conduct,’’ ‘‘we think that it falls only within the outer ambit of the First Amendment’s protection.’’ Id. at 1391. The opinion also quotes Justice Stevens to the same

effect with regard to erotic materials generally. Id. at 1393. In United States v.

Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1893 (2000), however, the

Court wrote that it ‘‘cannot be influenced . . . by the perception that the regulation

in question is not a major one because the speech [‘‘signal bleed’’ of sexually oriented

cable programming] is not very important.’’ 144 120 S. Ct. at 1397.

encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.’’ 138

[P. 1161, start a new paragraph of text with the material that previously followed n.61, and change the opening words of that new

paragraph from ‘‘Also, government may’’ to ‘‘The government may

also’’.]

[P. 1163, add to text following n.74:]

In Erie v. Pap’s A.M.,139 the Supreme Court again upheld the

application of a statute prohibiting public nudity to an ‘‘adult’’ entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices.

These five adopted Justice Souter’s position in Barnes, that the

statute satisfied the O’Brien test because it was intended ‘‘to combat harmful secondary effects,’’ such as ‘‘prostitution and other

criminal activity.’’ 140 Justice Souter, however, though joining the

plurality opinion, also dissented in part. He continued to believe

that secondary effects were an adequate justification for banning

nude dancing, but did not believe ‘‘that the city has made a sufficient evidentiary showing to sustain its regulation,’’ and therefore

would have remanded the case for further proceedings.141 He acknowledged his ‘‘mistake’’ in Barnes in failing to make the same

demand for evidence.142

The plurality opinion found that the effect of Erie’s public nudity ban ‘‘on the erotic message . . . is de minimis’’ because Erie allowed dancers to perform wearing only pasties and G-strings.143 It

may follow that ‘‘requiring dancers to wear pasties and G-strings

may not greatly reduce . . . secondary effects, but O’Brien requires

only that the regulation further the interest of combating such effects,’’ not that it further it to a particular extent.144 The plurality

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AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 79

145 512 U.S. 753 (1994). 146The Court rejected the argument that the injunction was necessarily contentbased or viewpoint-based because it applied only to anti-abortion protesters. ‘‘An injunction by its very nature applies only to a particular group (or individuals) . . . .

It does so, however, because of the group’s past actions in the context of a specific

dispute.’’ There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. 512 U.S. at 762.

ing public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.

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

Demonstrating

—The Public Forum

[P. 1167, add to n.98 following citation to Niemotko v. Maryland:]

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (denial

of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause

violation, to place a cross in plaza on grounds of state capitol); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (University’s subsidy for printing costs of

student publications, available for student ‘‘news, information, opinion, entertainment, or academic communications,’’ could not be withheld because of the religious

content of a student publication); Lamb’s Chapel v. Center Moriches School Dist.,

508 U.S. 384 (1993) (school district rule prohibiting after-hours use of school property for showing of a film presenting a religious perspective on child-rearing and

family values, but allowing after-hours use for non-religious social, civic, and recreational purposes).

[P. 1169, add to n.106:]

Candidate debates on public television are an example of this third type of public forum: the ‘‘nonpublic forum.’’ Arkansas Educational Television Comm’n v.

Forbes, 523 U.S. 666, 679 (1998). ‘‘Although public broadcasting as a general matter

does not lend itself to scrutiny under the forum doctrine [i.e., public broadcasters

ordinarily are entitled to the editorial discretion to engage in viewpoint discrimination], candidate debates present the narrow exception to this rule.’’ Id. at 675. A

public broadcaster, therefore, may not engage in viewpoint discrimination in granting or denying access to candidates. Under the third type of forum analysis, however, it may restrict candidate access for ‘‘a reasonable, viewpoint-neutral’’ reason,

such as a candidate’s ‘‘objective lack of support.’’ Id. at 683.

—Public Issue Picketing and Parading

[P. 1179, add to text at end of section:]

More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In Madsen v. Women’s Health Center,145 the Court refined

principles governing issuance of ‘‘content-neutral’’ injunctions that

restrict expressive activity.146 The appropriate test, the Court stated, is ‘‘whether the challenged provisions of the injunction burden

no more speech than necessary to serve a significant governmental

80 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

147 512 U.S. at 765. 148 512 U.S. at 765. 149 Referring to Frisby v. Schultz, 487 U.S. 474 (1988). 150 519 U.S. 357 (1997). 151 519 U.S. at 366 n.3. 152 519 U.S. at 366 n.3. 153 519 U.S. at 376. 154 519 U.S. at 377. 155 519 U.S. at 378.

interest.’’ 147 Regular time, place, and manner analysis (requiring

that regulation be narrowly tailored to serve a significant governmental interest) ‘‘is not sufficiently rigorous,’’ the Court explained,

because injunctions create greater risk of censorship and discriminatory application, and because of the established principle ‘‘that

an injunction should be no broader than necessary to achieve its

desired goals.’’ 148 Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-ofway within 36 feet of an abortion clinic. Similarly upheld were

noise restrictions designed to ensure the health and well-being of

clinic patients. Other aspects of the injunction, however, did not

pass the test. Inclusion of private property within the 36-foot buffer

was not adequately justified, nor was inclusion in the noise restriction of a ban on ‘‘images observable’’ by clinic patients. A ban on

physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more

speech than necessary. Also, a ban on demonstrating within 300

feet of the residences of clinic staff was not sufficiently justified,

the restriction covering a much larger zone than an earlier residential picketing ban that the Court had upheld.149

In Schenck v. Pro-Choice Network of Western New York,150 the

Court applied Madsen to another injunction that placed restrictions

on demonstrating outside an abortion clinic. The Court upheld the

portion of the injunction that banned ‘‘demonstrating within fifteen

feet from either side or edge of, or in front of, doorways or doorway

entrances, parking lot entrances, driveways and driveway entrances of such facilities’’—what the Court called ‘‘fixed buffer

zones.’’ 151 It struck down a prohibition against demonstrating

‘‘within fifteen feet of any person or vehicles seeking access to or

leaving such facilities’’—what it called ‘‘floating buffer zones.’’ 152

The Court cited ‘‘public safety and order’’ 153 in upholding the fixed

buffer zones, but it found that the floating buffer zones ‘‘burden

more speech than is necessary to serve the relevant governmental

interests’’ 154 because they make it ‘‘quite difficult for a protester

who wishes to engage in peaceful expressive activity to know how

to remain in compliance with the injunction.’’ 155 The Court also

AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 81

156 519 U.S. at 367. 157 120 S. Ct. 2480 (2000). 158 120 S. Ct. at 2484. 159 120 S. Ct. at 2488. 160 120 S. Ct. at 2492. 161 515 U.S. 557 (1995).

upheld a provision specifying that ‘‘once sidewalk counselors who

had entered the buffer zones were required to ‘cease and desist’

their counseling, they had to retreat 15 feet from the people they

had been counseling and had to remain outside the boundaries of

the buffer zones.’’ 156

In Hill v. Colorado,157 the Court upheld a Colorado statute

that makes it unlawful, within 100 feet of the entrance to any

health care facility, to ‘‘knowingly approach’’ within eight feet of

another person, without that person’s consent, ‘‘for the purpose of

passing a leaflet or handbill to, displaying a sign to, or engaging

in oral protest, education, or counseling with such other person.’’ 158

This decision is notable because it upheld a statute, and not, as in

Madsen and Schenck, merely an injunction directed to particular

parties. The Court found the statute to be a content-neutral time,

place, and manner regulation of speech that ‘‘reflects an acceptable

balance between the constitutionally protected rights of law-abiding

speakers and the interests of unwilling listeners. . . .’’ 159 The restrictions are content-neutral because they regulate only the places

where some speech may occur, and because they apply equally to

all demonstrators, regardless of viewpoint. Although the restrictions do not apply to all speech, the ‘‘kind of cursory examination’’

that might be required to distinguish casual conversation from protest, education, or counseling is not ‘‘problematic.’’ 160 The law is

narrowly tailored to achieve the state’s interests. The eight-foot restriction does not significantly impair the ability to convey messages by signs, and ordinarily allows speakers to come within a

normal conversational distance of their targets. Because the statute

allows the speaker to remain in one place, persons who wish to

hand out leaflets may position themselves beside entrances near

the path of oncoming pedestrians, and consequently are not deprived of the opportunity to get the attention of persons entering

a clinic.

Different types of issues were presented by Hurley v. IrishAmerican Gay Group,161 in which the Court held that a state’s public accommodations law could not be applied to compel private organizers of a St. Patrick’s Day parade to accept in the parade a

unit that would proclaim a message that the organizers did not

wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and applicaVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00082 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
82 AMENDMENT 1—RELIGION, FREE SPEECH, ETC.

162 515 U.S. at 573. 163 514 U.S. 334 (1995). 164 In Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999), the

Court struck down a Colorado statute requiring initiative-petition circulators to

wear identification badges. It found that ‘‘the restraint on speech in this case is

more severe than was the restraint in McIntyre’’ because ‘‘[p]etition circulation is

a less fleeting encounter, for the circulator must endeavor to persuade electors to

sign the petition. . . . [T]he badge requirement compels personal name identification

at the precise moment when the circulator’s interest in anonymity is greatest.’’ Id.

at 199. 165 466 U.S. 789 (1984). 166 Justice Brennan argued in dissent that adequate alternative forms of communication were not readily available because handbilling or other person-to-person

methods would be substantially more expensive, and that the regulation for the

sake of aesthetics was not adequately justified.

tion of the public accommodations law to the content of the organizers’ message contravened the ‘‘fundamental rule . . . that a

speaker has the autonomy to choose the content of his own message.’’ 162

—Leafleting, Handbilling, and the Like

[P. 1181, add to text after n.168:]

Talley’s anonymity rationale was strengthened in McIntyre v.

Ohio Elections Commission,163 invalidating Ohio’s prohibition on

the distribution of anonymous campaign literature. There is a ‘‘respected tradition of anonymity in the advocacy of political causes,’’

the Court noted, and neither of the interests asserted by Ohio justified the limitation. The State’s interest in informing the electorate

was ‘‘plainly insufficient,’’ and, while the more weighty interest in

preventing fraud in the electoral process may be accomplished by

a direct prohibition, it may not be accomplished indirectly by an indiscriminate ban on a whole category of speech. Ohio could not

apply the prohibition, therefore, to punish anonymous distribution

of pamphlets opposing a referendum on school taxes.164

[P. 1181, substitute for first full paragraph on page:]

The handbilling cases were distinguished in City Council v.

Taxpayers for Vincent,165 in which the Court held that a city may

prohibit altogether the use of utility poles for posting of signs.

While a city’s concern over visual blight could be addressed by an

anti-littering ordinance that did not restrict the expressive activity

of distributing handbills, in the case of utility pole signs ‘‘it is the

medium of expression itself’’ that creates the visual blight. Hence,

the city’s prohibition, unlike a prohibition on distributing handbills,

was narrowly tailored to curtail no more speech than necessary to

accomplish the city’s legitimate purpose.166 Ten years later, however, the Court unanimously invalidated a town’s broad ban on resVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00083 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 83

167 City of Ladue v. Gilleo, 512 U.S. 43 (1994).

168 512 U.S. at 54, 57.

169 512 U.S. at 54. The city’s legitimate interest in reducing visual clutter could

be addressed by ‘‘more temperate’’ measures, the Court suggested. Id. at 58.

idential signs that permitted only residential identification signs,

‘‘for sale’’ signs, and signs warning of safety hazards.167 Prohibiting

homeowners from displaying political, religious, or personal messages on their own property ‘‘almost completely foreclosed a venerable means of communication that is both unique and important,’’

and that is ‘‘an unusually cheap and convenient form of communication’’ without viable alternatives for many residents.168 The

ban was thus reminiscent of total bans on leafleting, distribution

of literature, and door-to-door solicitation that the Court had struck

down in the 1930s and 1940s. The prohibition in Vincent was distinguished as not removing a ‘‘uniquely valuable or important mode

of communication,’’ and as not impairing citizens’ ability to communicate.169

85

1Printz v. United States, 521 U.S. 898, 937–39 (1997) (quoting 3 COMMENTARIES § 1890, p. 746 (1833)). Justice Scalia, in extra-judicial writing, has sided

with the individual rights interpretation of the Amendment. See ANTONIN SCALIA,

A MATTER OF INTERPRETATION, FEDERAL COURTS AND THE LAW, 136–37 n.13 (A.

Gutmann, ed., 1997) (responding to Professor Tribe’s critique of ‘‘my interpretation

of the Second Amendment as a guarantee that the federal government will not

interfere with the individual’s right to bear arms for self-defense’’).

SECOND AMENDMENT

[P. 1193, add to n.1:]

JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLOAMERICAN RIGHT (1994); GLENN HARLAN REYNOLDS, A Critical Guide to the Second

Amendment, 62 TENN. L. REV. 461 (1995); WILLIAM VAN ALYSTYNE, The Second

Amendment and the Personal Right to Bear Arms, 43 DUKE L.J. 1236 (1994).

[P. 1194, add to n.7:]

See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to

challenge denial of permit to carry concealed weapon, because Second Amendment

is a right held by States, not by private citizens), cert. denied 519 U.S. 912 (1996);

United States v. Gomez, 92 F.3d 770, 775 n.7 (9th Cir. 1996) (interpreting federal

prohibition on possession of firearm by a felon as having a justification defense ‘‘ensures that [the provision] does not collide with the Second Amendment’’); United

States v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied 522 U.S. 1007 (1997) (member of Georgia unorganized militia unable to establish that his possession of machineguns and pipe bombs bore any connection to the preservation or efficiency of

a well regulated militia).

[P. 1194, add to text at end of section:]

Pointing out that interest in the ‘‘character of the Second

Amendment right has recently burgeoned,’’ Justice Thomas, concurring in the Court’s invalidation (on other grounds) of the Brady

Handgun Violence Prevention Act, questioned whether the Second

Amendment bars federal regulation of gun sales, and suggested

that the Court might determine ‘‘at some future date . . . whether

Justice Story was correct . . . that the right to bear arms ‘has justly

been considered, as the palladium of the liberties of a republic.’ ’’ 1

87

1Soldal v. Cook County, 506 U.S. 56, 61 (1992) (home ‘‘was not only seized, it

literally was carried away, giving new meaning to the term ‘mobile home’ ’’).

FOURTH AMENDMENT

SEARCH AND SEIZURE

History and Scope of the Amendment

—The Interest Protected

[P. 1206, add to n.38 before Rakas v. Illinois citation, and add parenthetical to Rakas citation:]

But cf. Minnesota v. Carter, 525 U.S. 83 (1998) (a person present in someone

else’s apartment for only a few hours for the purpose of bagging cocaine for later

sale has no legitimate expectation of privacy); Cf. Rakas v. Illinois, 439 U.S. 128

(1978) (auto passengers demonstrated no legitimate expectation of privacy in glove

compartment or under seat of auto).

[P. 1206, add to end of n.38:]

Property rights are still protected by the Amendment, however. A ‘‘seizure’’ of

property can occur when there is some meaningful interference with an individual’s

possessory interests in that property, and regardless of whether there is any interference with the individual’s privacy interest. Soldal v. Cook County, 506 U.S. 56

(1992) (a seizure occurred when sheriff’s deputies assisted in the disconnection and

removal of a mobile home in the course of an eviction from a mobile home park).

The reasonableness of a seizure, however, is an additional issue that may still hinge

on privacy interests. United States v. Jacobsen, 466 U.S. 109, 120–21 (1984) (DEA

agents reasonably seized package for examination after private mail carrier had

opened the damaged package for inspection, discovered presence of contraband, and

informed agents).

[P. 1206, add to n.39:]

Bond v. United States, 120 S. Ct. 1462, 1465 (2000).

—Searches and Inspections in Noncriminal Cases

[P. 1214, add to text following n.82:]

In another unusual case, the Court held that a sheriff’s assistance to a trailer park owner in disconnecting and removing a mobile home constituted a ‘‘seizure’’ of the home.1

Searches and Seizures Pursuant to Warrant

—Probable Cause

[P. 1218, add to n.98:]

Similarly, the preference for proceeding by warrant leads to a stricter rule for

appellate review of trial court decisions on warrantless stops and searches than is

employed to review probable cause to issue a warrant. Ornelas v. United States, 517

88 AMENDMENT 4—SEARCHES AND SEIZURES

2 United States v. Ramirez, 523 U.S. 65, 71 (1998).

3 Rule 41(c), Federal Rules of Criminal Procedure, provides, inter alia, that the

warrant shall be served in the daytime, unless the magistrate ‘‘for reasonable cause

shown’’ directs in the warrant that it be served at some other time. See Jones v.

United States, 357 U.S. 493, 498–500 (1958); Gooding v. United States, 416 U.S. 430

(1974). A separate statutory rule applies to narcotics cases. 21 U.S.C. § 879(a). 4 514 U.S. 927 (1995).

5 520 U.S. 385, 394 (1997).

6The fact that officers may have to destroy property in order to conduct a noknock entry has no bearing on the reasonableness of their decision not to knock and

announce. United States v. Ramirez, 523 U.S. 65 (1998).

U.S. 690 (1996) (determinations of reasonable suspicion to stop and probable cause

to search without a warrant should be subjected to de novo appellate review).

—Execution of Warrants

[P. 1226, delete first sentence of section and substitute the following:]

The Fourth Amendment’s ‘‘general touchstone of reasonableness . . . governs the method of execution of the warrant.’’ 2 Until recently, however, most such issues have been dealt with by statute

and rule.3

[P. 1227, add to text following sentence containing n.158:]

In Wilson v. Arkansas,4 the Court determined that the common

law ‘‘knock and announce’’ rule is an element of the Fourth Amendment reasonableness inquiry. The ‘‘rule’’ is merely a presumption,

however, that yields under various circumstances, including those

posing a threat of physical violence to officers, those in which a

prisoner has escaped and taken refuge in his dwelling, and those

in which officers have reason to believe that destruction of evidence

is likely. The test, articulated two years later in Richards v. Wisconsin,5 is whether police have ‘‘a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit

the effective investigation of the crime.’’ In Richards, the Court

held that there is no blanket exception to the rule whenever officers are executing a search warrant in a felony drug investigation;

instead, a case-by-case analysis is required to determine whether

no-knock entry is justified under the circumstances.6

[P. 1227, delete sentence containing n.159:]

[P. 1227, add to text following n.161:]

Because police actions in execution of a warrant must be related to the objectives of the authorized intrusion, and because privacy of the home lies at the core of the Fourth Amendment, police

officers violate the Amendment by bringing members of the media

AMENDMENT 4—SEARCHES AND SEIZURES 89

7Wilson v. Layne, 526 U.S. 603 (1999). Accord, Hanlon v. Berger, 526 U.S. 808

(1999) (media camera crew ‘‘ride-along’’ with Fish and Wildlife Service agents executing a warrant to search respondent’s ranch for evidence of illegal taking of wildlife).8Minnesota v. Dickerson, 508 U.S. 366 (1993).

9 508 U.S. at 375, 378–79. In Dickerson the Court held that seizure of a small

plastic container that the officer felt in the suspect’s pocket was not justified; the

officer should not have continued the search, manipulating the container with his

fingers, after determining that no weapon was present. 10 Bond v. United States, 120 S. Ct. 1462 (2000) (bus passenger has reasonable

expectation that, while other passengers might handle his bag in order to make

room for their own, they will not ‘‘feel the bag in an exploratory manner’’). 11Florida v. J.L., 120 S. Ct. 1375 (2000) (reasonable suspicion requires that a

tip be reliable in its assertion of illegality, not merely in its identification of someone).

or other third parties into a home during execution of a warrant

if presence of those persons was not in aid of execution of the warrant.7

Valid Searches and Seizures Without Warrants

—Detention Short of Arrest: Stop-and-Frisk

[P. 1230, add to n.12:]

Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after validly stopping car, officer

may order passengers as well as driver out of car; ‘‘the same weighty interest in

officer safety is present regardless of whether the occupant of the stopped car is a

driver or passenger’’).

[P. 1230, add to text following n.12:]

If, in the course of a weapons frisk, ‘‘plain touch’’ reveals presence of an object that the officer has probable cause to believe is

contraband, the officer may seize that object.8 The Court viewed

the situation as analogous to that covered by the ‘‘plain view’’ doctrine: obvious contraband may be seized, but a search may not be

expanded to determine whether an object is contraband.9 Also impermissible is physical manipulation, without reasonable suspicion,

of a bus passenger’s carry-on luggage stored in an overhead compartment.10

[P. 1231, add to n.16:]

Illinois v. Wardlow, 120 S. Ct. 673 (2000) (unprovoked flight from high crime

area upon sight of police produces ‘‘reasonable suspicion’’).

[P. 1231, add, after n.16, to end of sentence containing n.16:]

, although the Court has held that an uncorroborated, anonymous tip is insufficient basis for a Terry stop, and that there is no

‘‘firearms’’ exception to the reasonable suspicion requirement.11

90 AMENDMENT 4—SEARCHES AND SEIZURES

12Knowles v. Iowa, 525 U.S. 113, 117 (1998) (officers may order driver and passengers out of car, and may conduct Terry-type pat down upon reasonable suspicion

that they may be armed and dangerous). 13Delaware v. Prouse, 440 U.S. 648, 663 (1979) (discretionary random stops of

motorists to check driver’s license and registration papers and safety features of

cars constitute Fourth Amendment violation); United States v. Brignoni-Ponce, 422

U.S. 873 (1975) (violation for roving patrols on lookout for illegal aliens to stop vehicles on highways near international borders when only ground for suspicion is that

occupants appear to be of Mexican ancestry). In Prouse, the Court cautioned that

it was not precluding the States from developing methods for spot checks, such as

questioning all traffic at roadblocks, that involve less intrusion or that do not involve unconstrained exercise of discretion. 440 U.S. at 663. 14 An officer who observes a traffic violation may stop a vehicle even if his real

motivation is to investigate for evidence of other crime. Whren v. United States, 517

U.S. 806 (1996). The existence of probable cause to believe that a traffic violation

has occurred establishes the constitutional reasonableness of traffic stops regardless

of the actual motivation of the officers involved, and regardless of whether it is customary police practice to stop motorists for the violation observed.

—Search Incident to Arrest

[P. 1235, add to text following n.37:]

If there is no custodial arrest, as in the case of a routine traffic

stop, the threat to officer safety is ‘‘a good deal less,’’ and the scope

of a permissible search is also more limited.12

[P. 1237, change n.48 to read:]

437 U.S. 385, 390–91 (1978). Accord, Flippo v. West Virginia, 120 S. Ct. 7 (1999)

(per curiam).

—Vehicular Searches

[P. 1239, add to n.62:]

An automobile’s ‘‘ready mobility [is] an exigency sufficient to excuse failure to

obtain a search warrant once probable cause is clear’’; there is no need to find the

presence of ‘‘unforeseen circumstances’’ or other additional exigency. Pennsylvania

v. Labron, 518 U.S. 938, 940 (1996). Accord, Maryland v. Dyson, 527 U.S. 465 (1999)

(per curiam).

[P. 1239, delete text accompanying n.63, and substitute the following:]

and they may not make random stops of vehicles on the roads,

but instead must base stops of individual vehicles on probable

cause or some ‘‘articulable and reasonable suspicion’’ 13 of traffic or

safety violation or some other criminal activity.14

[P. 1240, add to text following n.66:]

Although officers who have stopped a car to issue a routine

traffic citation may conduct a Terry-type search, even including a

pat down of driver and passengers if there is reasonable suspicion

AMENDMENT 4—SEARCHES AND SEIZURES 91

15Knowles v. Iowa, 525 U.S. 113 (1998) (invalidating an Iowa statute permitting a full-blown search incident to a traffic citation). 16 United States v. Di Re, 332 U.S. 581 (1948); Ybarra v. Illinois, 444 U.S. 85,

94–96 (1979).

17Knowles v. Iowa, 525 U.S. Ct. 113, 118 (1999). 18Wyoming v. Houghton, 526 U.S. 295, 307 (1999) (‘‘police officers with probable

cause to search a car may inspect passengers’ belongings found in the car that are

capable of concealing the object of the search’’). 19 515 U.S. 646 (1995).

that they are armed and dangerous, they may not conduct a fullblown search of the car.15

[P. 1240, add new footnote at end of first sentence in first full paragraph:]

The same rule applies if it is the vehicle itself that is forfeitable contraband;

police, acting without a warrant, may seize the vehicle from a public place. Florida

v. White, 526 U.S. 559 (1999).

[P. 1240, change sentence ending with n.70 to read:

Police in undertaking a warrantless search of an automobile

may not extend the search to the persons of the passengers therein 16 unless there is a reasonable suspicion that the passengers are

armed and dangerous, in which case a Terry pat down is permissible.17

[P. 1240, change sentences beginning after n.71 to read:]

Luggage and other closed containers found in automobiles may

also be subjected to warrantless searches based on probable cause,

regardless of whether the luggage or containers belong to the driver or to a passenger, and regardless of whether it is the driver or

a passenger who is under suspicion.18 The same rule now applies

whether . . . .’’

—Consent Searches

P. 1242, add to n.82:]

Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not always inform a detained

motorist that he is free to go before consent to search auto may be deemed voluntary).

—Drug Testing

[P. 1249, substitute for paragraph beginning after n.128:]

Emphasizing the ‘‘special needs’’ of the public school context,

reflected in the ‘‘custodial and tutelary’’ power that schools exercise

over students, and also noting schoolchildren’s diminished expectation of privacy, the Court in Vernonia School District v. Acton 19

upheld a school district’s policy authorizing random urinalysis drug

92 AMENDMENT 4—SEARCHES AND SEIZURES

20 Id. at 661. 21 Id. 22 Id. at 657. 23 Id. at 665. 24 520 U.S. 305 (1997).

testing of students who participate in interscholastic athletics. The

Court redefined the term ‘‘compelling’’ governmental interest. The

phrase does not describe a ‘‘fixed, minimum quantum of governmental concern,’’ the Court explained, but rather ‘‘describes an interest which appears important enough to justify the particular

search at hand.’’ 20 Applying this standard, the Court concluded

that ‘‘deterring drug use by our Nation’s schoolchildren is at least

as important as enhancing efficient enforcement of the Nation’s

laws against the importation of drugs . . . or deterring drug use by

engineers and trainmen.’’ 21 On the other hand, the interference

with privacy interests was not great, the Court decided, since

schoolchildren are routinely required to submit to various physical

examinations and vaccinations. Moreover, ‘‘[l]egitimate privacy expectations are even less [for] student athletes,’’ since they normally

suit up, shower, and dress in locker rooms that afford no privacy,

and since they voluntarily subject themselves to physical exams

and other regulations above and beyond those imposed on non-athletes.22 The Court ‘‘caution[ed] against the assumption that

suspicionless drug testing will readily pass muster in other contexts,’’ identifying as ‘‘the most significant element’’ in Vernonia the

fact that the policy was implemented under the government’s responsibilities as guardian and tutor of schoolchildren.23

No ‘‘special needs’’ justified Georgia’s requirement that candidates for state office certify that they had passed a drug test, the

Court ruled in Chandler v. Miller.24 Rather, the Court concluded

that Georgia’s requirement was ‘‘symbolic’’ rather than ‘‘special.’’

There was nothing in the record to indicate any actual fear or suspicion of drug use by state officials, the required certification was

not well designed to detect illegal drug use, and candidates for

state office, unlike the customs officers held subject to drug testing

in Von Raab, are subject to ‘‘relentless’’ public scrutiny.

Enforcing the Fourth Amendment: The Exclusionary Rule

—Narrowing Application of the Exclusionary Rule

[P. 1267, add to n.211:]

Similarly, the exclusionary rule does not require suppression of evidence that

was seized incident to an arrest that was the result of a clerical error by a court

clerk. Arizona v. Evans, 514 U.S. 1 (1995).

AMENDMENT 4—SEARCHES AND SEIZURES 93

25Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998).

[P. 1267, add to text following n.213:]

The rule is inapplicable in parole revocation hearings.25

—Operation of the Rule: Standing

[P. 1270, add to n.229 following citation to Rakas v. Illinois:]

United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or

property interests are violated may object to a search on Fourth Amendment

grounds; exerting control and oversight over property by virtue of participation in

a criminal conspiracy does not alone establish such interests).

95

1 United States v. Ursery, 518 U.S. 267 (1996) (forfeitures, pursuant to 19

U.S.C. § 981 and 21 U.S.C. § 881, of property used in drug and money laundering

offenses, are not punitive). The Court in Ursery applied principles that had been set

forth in Various Items of Personal Property v. United States, 282 U.S. 577 (1931)

(forfeiture of distillery used in defrauding government of tax on spirits); One Lot

Emerald Cut Stones v. United States, 409 U.S. 232 (1972) (per curiam) (forfeiture

of jewels brought into United States without customs declaration); and United

States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant

to 18 U.S.C. § 924(d), of firearms ‘‘used or intended to be used in’’ firearms offenses).

A two-part inquiry is followed. First, the Court inquires whether Congress intended

the forfeiture proceeding to be civil or criminal. Then, if Congress intended that the

proceeding be civil, the court determines whether there is nonetheless the ‘‘clearest

proof’’ that the sanction is ‘‘so punitive’’ as to transform it into a criminal penalty.

89 Firearms, supra, 465 U.S. at 366. 2Kansas v. Hendricks, 521 U.S. 346, 369–70 (1997) (commitment under State’s

Sexually Violent Predator Act).

FIFTH AMENDMENT

DOUBLE JEOPARDY

Development and Scope

[P. 1282, n.59, delete citation to One Lot Emerald Cut Stones case]

[P. 1283, n.60, delete citation to 89 Firearms case and add:]

Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (tax on possession of illegal drugs, ‘‘to be collected only after any state or federal fines or forfeitures have been satisfied,’’ constitutes punishment for purposes of double jeopardy).

[P. 1283, add to text following n.60:]

Ordinarily, however, civil in rem forfeiture proceedings may

not be considered punitive for purposes of double jeopardy analysis,1 and the same is true of civil commitment following expiration

of a prison term.2

Reprosecution Following Acquittal

—Acquittal by Jury

[P. 1290, add footnote to end of first sentence in section:]

What constitutes a jury acquittal may occasionally be uncertain. In Schiro v.

Farley, 510 U.S. 222 (1994), the Court ruled that a jury’s action in leaving the verdict sheet blank on all but one count did not amount to an acquittal on those counts,

and that consequently conviction on the remaining count, alleged to be duplicative

of one of the blank counts, could not constitute double jeopardy. In any event, the

Court added, no successive prosecution violative of double jeopardy could result from

an initial sentencing proceeding in the course of an initial prosecution.

96 AMENDMENT 5—RIGHTS OF PERSONS

3 United States v. Watts, 519 U.S. 148, 154 (1997) (relying on Witte v. United

States, 515 U.S. 389 (1995), and holding that a sentencing court may consider earlier conduct of which the defendant was acquitted, so long as that conduct is proved

by a preponderance of the evidence). See also Almendarez-Torres v. United States,

523 U.S. 224 (1998) (Congress’ decision to treat recidivism as a sentencing factor

does not violate due process); Monge v. California, 524 U.S. 721 (1998) (retrial is

permissible following appellate holding of failure of proof relating to sentence enhancement). Justice Scalia, whose dissent in Almendarez-Torres argued that there

was constitutional doubt over whether recidivism factors that increase a maximum

sentence must be treated as a separate offense for double jeopardy purposes (523

U.S. at 248), answered that question affirmatively in his dissent in Monge. 524 U.S.

at 740–41.

Reprosecution Following Conviction

—Sentence Increases

P. 1296, add to n.131:]

In Monge v. California, 524 U.S. 721 (1998), the Court refused to extend the

‘‘narrow’’ Bullington exception outside the area of capital punishment.

[P. 1297, add new paragraph to text following n.133:]

The Court is also quite deferential to legislative classification

of recidivism sentencing enhancement factors as relating only to

sentencing and as not constituting elements of an ‘‘offense’’ that

must be proved beyond a reasonable doubt. Ordinarily, therefore,

sentence enhancements cannot be construed as additional punishment for the previous offense, and the Double Jeopardy Clause is

not implicated. ‘‘Sentencing enhancements do not punish a defendant for crimes for which he was not convicted, but rather increase

his sentence because of the manner in which he committed his

crime of conviction.’’ 3

‘‘For the Same Offence’’

—Legislative Discretion as to Multiple Sentences

[P. 1299, add to n.142:]

But cf. Rutledge v. United States, 517 U.S. 292 (1996) (21 U.S.C. § 846, prohibiting conspiracy to commit drug offenses, does not require proof of any fact that is

not also a part of the continuing criminal enterprise offense under 21 U.S.C. § 848,

so there are not two separate offenses).

—Successive Prosecutions for the Same Offense

[P. 1300, substitute for the two sentences immediately following

n.150:]

In 1990, the Court modified the Brown approach, stating that

the appropriate focus is on same conduct rather than same eviVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00097 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 5—RIGHTS OF PERSONS 97

4Grady v. Corbin, 495 U.S. 508 (1990) (holding that the State could not prosecute a traffic offender for negligent homicide because it would attempt to prove

conduct for which the defendant had already been prosecuted—driving while intoxicated and failure to keep to the right of the median). A subsequent prosecution is

barred, the Court explained, if the government, to establish an essential element of

an offense, will prove conduct that constitutes an offense for which the defendant

has already been prosecuted. Id. at 521. 5 United States v. Dixon, 509 U.S. 688, 709 (1993) (applying Blockburger test

to determine whether prosecution for a crime, following conviction for criminal contempt for violation of a court order prohibiting that crime, constitutes double jeopardy). 6Witte v. United States, 515 U.S. 389 (1995) (consideration of defendant’s alleged cocaine dealings in determining sentence for marijuana offenses does not bar

subsequent prosecution on cocaine charges). 7Monge v. California, 524 U.S. 721, 728 (1998).

8 Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (‘‘We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial

so far as the protection of the Fifth Amendment privilege is concerned’’); Mitchell

v. United States, 526 U.S. 314 (1999) (non-capital sentencing).

dence.4 That interpretation held sway only three years, however,

before being repudiated as ‘‘wrong in principle [and] unstable in application.’’ 5

[P. 1301, add to n.154:]

The fact that Felix constituted a ‘‘large exception’’ to Grady was one of the reasons the Court cited in overruling Grady. United States v. Dixon, 509 U.S. 688,

709–10 (1993).

[P. 1301, add to text following n.154:]

For double jeopardy purposes, a defendant is ‘‘punished . . .

only for the offense of which [he] is convicted’’; a later prosecution

or later punishment is not barred simply because the underlying

criminal activity has been considered at sentencing for a different

offense.6 Similarly, recidivism-based sentence enhancement does

not constitute multiple punishment for the ‘‘same’’ prior offense,

but instead is a stiffened penalty for the later crime.7

SELF-INCRIMINATION

Development and Scope

[P. 1306, add to text following n.177:]

Incrimination is not complete once guilt has been adjudicated,

and hence the privilege may be asserted during the sentencing

phase of trial.8

[P. 1307, add to n.180:]

Two Justices recently challenged the interpretation limiting application to ‘‘testimonial’’ disclosures, claiming that the original understanding of the word ‘‘witness’’

was not limited to someone who gives testimony, but included someone who gives

98 AMENDMENT 5—RIGHTS OF PERSONS

9Fisher v. United States, 425 U.S. 391 (1976). Compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does

not involve testimonial self-incrimination and is not barred by the privilege. ‘‘[T]he

Fifth Amendment does not independently proscribe the compelled production of

every sort of incriminating evidence but applies only when the accused is compelled

to make a testimonial communication that is incriminating.’’ Id. at 408 (emphasis

by Court). Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant.

Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of

a grand jury investigation to sign a consent directive authorizing foreign banks to

disclose records of any and all accounts over which he had a right of withdrawal

is not testimonial in nature, since the factual assertions are required of the banks

and not of the target. Doe v. United States, 487 U.S. 201 (1988). 10 In United States v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher,

upholding lower courts’ findings that the act of producing tax records implicates the

privilege because it would compel admission that the records exist, that they were

in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile

court’s order to produce a child implicates the privilege, because the act of compliance ‘‘would amount to testimony regarding [the subject’s] control over and possession of [the child].’’ Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549,

555 (1990). 11 United States v. Hubbell, 120 S. Ct. 2037 (2000).

any kind of evidence. United States v. Hubbell, 120 S. Ct. 2037, 2050 (2000) (Justice

Thomas, joined by Justice Scalia, concurring).

[P. 1307, delete n.181 and add to text following sentence that contained n.181:]

A person may be compelled to produce specific documents even

though they contain incriminating information.9 If, however, the

existence of specific documents is not known to the government,

and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege

is implicated.10 Application of these principles resulted in a holding

that the Independent Counsel could not base a prosecution on incriminating evidence identified and produced as the result of compliance with a broad subpoena for all information relating to the

individual’s income, employment, and professional relationships.11

[P. 1309, add to n.190:]

In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post-Miranda silence

for impeachment purposes at trial, the proper standard for harmless-error review

is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946)—whether

the due process error ‘‘had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter ‘‘harmless beyond a reasonable doubt’’ standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable on direct review.

Brecht v. Abrahamson, 507 U.S. 619 (1993).

[P. 1311, add to text at end of section:]

There is no ‘‘cooperative internationalism’’ that parallels the

cooperative federalism and cooperative prosecution on which appliVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00099 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 5—RIGHTS OF PERSONS 99

12 United States v. Balsys, 524 U.S. 666 (1998). 13Pub. L. No. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No.

1097, 90th Cong., 2d Sess. 37–53 (1968). An effort to enact a companion measure

applicable to the state courts was defeated. 14 New York v. Quarles, 467 U.S. 549, 653 (1984). 15Michigan v. Tucker, 417 U.S. 433, 444 (1974). 16 120 S. Ct. 2326 (2000).

cation against States is premised, and consequently concern with

foreign prosecution is beyond the scope of the Self-Incrimination

Clause.12

The Power to Compel Testimony and Disclosure

—Immunity

[P. 1315, add to n.224:]

See also United States v. Hubbell, 120 S. Ct. 2037 (2000) (because the statute

protects against derivative use of compelled testimony, a prosecution cannot be

based on incriminating evidence revealed only as the result of compliance with an

extremely broad subpoena).

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

—Miranda v. Arizona

[P. 1332, delete all of first paragraph after first sentence, and add

the following new paragraphs:]

For years, the constitutional status of the Miranda warnings

was clouded in uncertainty. Had the Court announced a constitutional rule, or merely set forth supervisory rules that could be superseded by statutory rules? The fact that Miranda itself applied

the rules to a state court proceeding, and that the Court in subsequent cases consistently applied the warnings to state proceedings,

was strong evidence of constitutional moorings. In 1968, however,

Congress enacted a statute designed to set aside Miranda in the

federal courts and to reinstate the traditional voluntariness test.13

The statute lay unimplemented, for the most part, due to constitutional doubts about it. The Court also created exceptions to the Miranda warnings over the years, and referred to the warnings as

‘‘prophylactic’’ 14 and ‘‘not themselves rights protected by the Constitution.’’ 15 There were even hints that some Justices might be

willing to overrule the decision.

In Dickerson v. United States,16 the Court resolved the basic

issue, holding that Miranda was a constitutional decision that

could not be overturned by statute, and consequently that 18

U.S.C. § 3501 was unconstitutional. Application of Miranda warnVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00100 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
100 AMENDMENT 5—RIGHTS OF PERSONS

17 120 S. Ct. at 2333. 18 120 S. Ct. at 2334 (quoting from Miranda, 384 U.S. at 441–42). 19 120 S. Ct. at 2336. 20 In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a

distinction between a constitutional violation and a violation of ‘‘the prophylactic

rules developed to protect that right.’’ The actual holding in Tucker, however, had

turned on the fact that the interrogation had preceded the Miranda decision and

that warnings—albeit not full Miranda warnings—had been given. 21 428 U.S. 465 (1976). 22 507 U.S. 680 (1993). 23 367 U.S. 643 (1961).

ings to state proceedings necessarily implied a constitutional base,

the Court explained, since federal courts ‘‘hold no supervisory authority over state judicial proceedings.’’ 17 Moreover, Miranda itself

had purported to ‘‘give concrete constitutional guidance to law enforcement agencies and courts to follow.’’ 18 That the Miranda rules

are constitution-based does not mean that they are ‘‘immutable,’’

however. The Court repeated its invitation for legislative action

that would be ‘‘at least as effective’’ in protecting a suspect’s right

to remain silent during custodial interrogation. Section 3501, however, merely reinstated the ‘‘totality-of-the-circumstances’’ rule held

inadequate in Miranda, so that provision could not be considered

as effective as the Miranda warnings.

The Dickerson Court also rejected a request to overrule Miranda. ‘‘Whether or not we would agree with Miranda’s reasoning

and its resulting rule, were we addressing the issue in the first instance,’’ Chief Justice Rehnquist wrote for a seven-Justice majority,

‘‘the principles of stare decisis weigh heavily against overruling it

now.’’ There was no special justification for overruling the decision;

subsequent cases had not undermined the decision’s doctrinal

underpinnings, but rather had ‘‘reaffirm[ed]’’ its ‘‘core ruling.’’

Moreover, Miranda warnings had ‘‘become so embedded in routine

police practice [that they] have become part of our national culture.’’ 19

[P. 1332, substitute for paragraph that carries over to P. 1333:]

Although the Court had suggested in 1974 that most Miranda

claims could be disallowed in federal habeas corpus cases,20 such

a course was squarely rejected in 1993. The Stone v. Powell 21 rule,

precluding federal habeas corpus review of a state prisoner’s claim

that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s claim that his conviction had been

obtained in violation of Miranda safeguards, the Court ruled in

Withrow v. Williams.22 The Miranda rule differs from the Mapp v.

Ohio 23 exclusionary rule denied enforcement in Stone, the Court

AMENDMENT 5—RIGHTS OF PERSONS 101

24 507 U.S. at 691–92.

25 Id. at 693.

26Stansbury v. California, 511 U.S. 318 (1994).

27Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that ‘‘maybe

I should talk to a lawyer,’’ uttered after Miranda waiver and after an hour and a

half of questioning, did not constitute such a clear request for an attorney when,

in response to a direct follow-up question, he said ‘‘no, I don’t want a lawyer’’).

28 507 U.S. 680 (1993).

29 428 U.S. 465 (1976). See main text, pp. 1265–66.

explained. While both are prophylactic rules, Miranda unlike

Mapp, safeguards a fundamental trial right, the privilege against

self-incrimination. Miranda also protects against the use at trial of

unreliable statements, hence, unlike Mapp, relates to the correct

ascertainment of guilt.24 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal

habeas review of state convictions, since most Miranda claims

could be recast in terms of due process denials resulting from admission of involuntary confessions.25

[P. 1334, add to text following n.324:]

Whether a person is ‘‘in custody’’ is an objective test assessed

in terms of how a reasonable person in the suspect’s shoes would

perceive his or her freedom to leave; a police officer’s subjective and

undisclosed view that a person being interrogated is a suspect is

not relevant for Miranda purposes.26

[P. 1338, add to text following n.344:]

After a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly requests an attorney.27

The Operation of the Exclusionary Rule

—Supreme Court Review

[P. 1341, add to text at end of section:]

In Withrow v. Williams,28 the Court held that the rule of Stone

v. Powell,29 precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through

an unconstitutional search or seizure, does not extend to preclude

federal habeas review of a state prisoner’s claim that his conviction

rests on statements obtained in violation of the safeguards mandated by Miranda.

102 AMENDMENT 5—RIGHTS OF PERSONS

30 Untermyer v. Anderson, 276 U.S. 440 (1928); Blodgett v. Holden, 275 U.S.

142 (1927), modified, 276 U.S. 594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927).

See also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as arbitrary and capricious a conclusive presumption that gifts made within two years of death were made

in contemplation of death). 31 Untermyer was distinguished in United States v. Hemme, 476 U.S. 558, 568

(1986), upholding retroactive application of unified estate and gift taxation to a taxpayer as to whom the overall impact was minimal and not oppressive. All three

cases were distinguished in United States v. Carlton, 512 U.S. 26, 30 (1994), as having been ‘‘decided during an era characterized by exacting review of economic legislation under an approach that ‘has long since been discarded.’ ’’ The Court noted further that Untermyer and Blodgett had been limited to situations involving creation

of a wholly new tax, and that Nichols had involved a retroactivity period of 12

years. Id. 32 512 U.S. 26, 30 (1994) (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S.

1, 16–17 (1976)). These principles apply to estate and gift taxes as well as to income

taxes, the Court added. 512 U.S. at 34.

DUE PROCESS

Substantive Due Process

—Discrimination

[P. 1358, add to n.75 following Richardson v. Belcher citation:]

FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV

regulation of facilities that serve only dwelling units under common ownership).

—Retroactive Taxes

[P. 1364, substitute for last paragraph in section:]

Although the Court during the 1920s struck down gift taxes

imposed retroactively upon gifts that were made and completely

vested before the enactment of the taxing statute,30 those decisions

have recently been distinguished, and their precedential value limited.31 In United States v. Carlton, the Court declared that ‘‘[t]he

due process standard to be applied to tax statutes with retroactive

effect . . . is the same as that generally applicable to retroactive economic legislation’’—retroactive application of legislation must be

shown to be ‘‘justified by a rational legislative purpose.’’ 32 Applying

that principle, the Court upheld retroactive application of a 1987

amendment limiting application of a federal estate tax deduction

originally enacted in 1986. Congress’ purpose was ‘‘neither illegitimate nor arbitrary,’’ the Court noted, since Congress had acted ‘‘to

correct what it reasonably viewed as a mistake in the original 1986

provision that would have created a significant and unanticipated

revenue loss.’’ Also, ‘‘Congress acted promptly and established only

a modest period of retroactivity.’’ The fact that the taxpayer had

transferred stock in reliance on the original enactment was not disVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00103 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 5—RIGHTS OF PERSONS 103

33 512 U.S. at 33. 34 524 U.S. 498 (1998). The split doctrinal basis of Eastern Enterprises undercuts its precedent value, and that of Connolly and Concrete Pipe, for takings law.

A majority of the justices (one supporting the judgment and four dissenters) found

substantive due process, not takings law, to provide the analytical framework

where, as in Eastern Enterprises, the gravamen of the complaint is the unfairness

and irrationality of the statute, rather than its economic impact.

positive, since ‘‘[t]ax legislation is not a promise, and a taxpayer

has no vested right in the Internal Revenue Code.’’ 33

—Deprivation of Property: Retroactive Legislation

[P. 1365, add to n.130:]

Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S.

602, 636–41 (1993) (imposition of multiemployer pension plan withdrawal liability

on an employer is not irrational, even though none of its employees had earned vested benefits by the time of withdrawal). In Eastern Enterprises v. Apfel, 524 U.S.

498 (1998), the challenge was to a statutory requirement that companies formerly

engaged in mining pay miner retiree health benefits, as applied to a company that

had placed its mining operations in a wholly owned subsidiary three decades earlier,

before labor agreements included an express promise of lifetime benefits. In a fractured opinion, the justices ruled 5 to 4 that the scheme’s severe retroactive effect

offended the Constitution, though differing on the governing clause. Four of the majority justices based the judgment solely on takings law, while opining that ‘‘there

is a question’’ whether the statute violated due process as well. The remaining majority justice, and the four dissenters, viewed substantive due process as the sole

appropriate framework for resolving the case, but disagreed on whether a violation

had occurred.

[P. 1366, add to n.138:]

The Court has addressed similar issues under breach of contract theory. United

States v. Winstar Corp., 518 U.S. 839 (1996).

NATIONAL EMINENT DOMAIN POWER

When Property Is Taken

—Regulatory Takings

[P. 1387, add to n.277 after initial citation:]

Accord, Concrete Pipe & Products v. Construction Laborers Pension Trust, 508

U.S. 602, 645–46 (1993).

[P. 1387, add to text at end of sentence containing n.277:]

However, where a statute imposes severe and ‘‘substantially

disproportionate’’ retroactive liability based on conduct several decades earlier, on parties that could not have anticipated the liability,

a taking (or violation of due process) may occur. On this rationale,

the Court in Eastern Enterprises v. Apfel 34 struck down the Coal

Miner Retiree Health Benefit Act’s requirement that companies formerly engaged in mining pay miner retiree health benefits, as apVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00104 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
104 AMENDMENT 5—RIGHTS OF PERSONS

35 483 U.S. at 842. 36 Justice Scalia, author of the Court’s opinion in Nollan, amplified his views

in a concurring and dissenting opinion in Pennell v. City of San Jose, 485 U.S. 1

(1988), explaining that ‘‘common zoning regulations requiring subdividers to observe

lot-size and set-back restrictions, and to dedicate certain areas to public streets, are

in accord with [constitutional requirements] because the proposed property use

would otherwise be the cause of’’ the social evil (e.g., congestion) 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. 37 512 U.S. 374 (1994). 38 512 U.S. at 391. Justice Stevens’ dissent criticized the Court’s ‘‘abandon[ment

of] the traditional presumption of constitutionality and imposi[tion of] a novel burden of proof on [the] city.’’ Id. at 405. The Court responded by distinguishing between challenges to generally applicable zoning regulations, where the burden appropriately rests on the challenging party, and imposition of property exactions

through adjudicative proceedings, where ‘‘the burden properly rests on the city.’’ Id.

at 391 n.8. As for the standard of proof, the Court looked to state law and rejected

the two extremes—a generalized statement of connection deemed ‘‘too lax’’ to protect

the Fifth Amendment right to just compensation, and a ‘‘specific and uniquely attributable’’ test deemed too exacting. Instead, the Court chose an ‘‘intermediate position’’ requiring a showing of ‘‘reasonable relationship,’’ but recharacterized it as

‘‘rough proportionality’’ in order to avoid confusion with ‘‘rational basis.’’ Id. at 391.

plied to a company that spun off its mining operation in 1965 before collective bargaining agreements included an express promise

of lifetime benefits.

[P. 1391, delete remainder of paragraph after n.299 and substitute

the following:]

‘‘If [the government] wants an easement across the Nollans’

property, it must pay for it.’’ 35 Because the Nollan Court found no

essential nexus between the permit condition and the asserted government interest, it did not address whether there is any additional requirement when such a nexus does exist, as is often the

case with land dedications and other permit conditions.36 Seven

years later, however, the Court announced in Dolan v. City of

Tigard 37 that exaction conditions attached to development permits

must be related to the impact of the proposed development not only

in nature but also in degree. Government must establish a ‘‘rough

proportionality’’ between such conditions and the developmental

impacts at which they are aimed.38 The Court ruled in Dolan that

the city’s conditioning of a building permit for expansion of a hardware store on the store owner’s dedication of a portion of her land

for a floodplain/recreational easement and for an adjacent pedestrian/bicycle pathway amounted to a taking. The requisite nexus

existed between the city’s interest in flood control and imposition

of the floodplain easement, and between the interest in minimizing

traffic congestion and the required bike path dedication, but the

Court found that the city had not established a rough proportionVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00105 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 5—RIGHTS OF PERSONS 105

39The city had quantified the traffic increases that could be expected from the

development, but had merely speculated that construction of the bike path ‘‘could

offset’’ some of that increase. While ‘‘[n]o precise mathematical calculation is required,’’ the Court concluded, ‘‘the city must make some effort to quantify its findings in support of the dedication.’’ Id. at 395–96. 40 526 U.S. 687 (1999). 41 City of Monterey also appears to give a lax interpretation to the ‘‘substantially

advances a legitimate government interest’’ test of Agins, by endorsing jury instructions interpreting ‘‘substantially advance’’ to require only a ‘‘reasonable relationship.’’ 526 U.S. at 704. Such a reading of City of Monterey, however, puts it squarely

at odds with Nollan, 483 U.S. at 834 n.3, where the Court earlier stressed that ‘‘substantially advance’’ imposes a stricter standard than the due process one of rational

basis.42 Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) (statute imposing generalized monetary liability); Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory

requirement that small fractional interests in allotted Indian lands escheat to tribe,

rather than pass on to heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment

version of escheat statute).

ality of degree. The floodplain/recreational easement not only prevented the property owner from building in the floodplain—a legitimate constraint—but also deprived her of the right to exclude others. And the city had not adequately demonstrated that the bike

path was necessitated by the additional vehicle and bicycle trips

that would be generated by the applicant’s development.39

Nollan and Dolan occasioned considerable debate over the

breadth of what became known as the ‘‘heightened scrutiny’’ test.

The stakes were plainly high, in that the test, where it applies,

lessens the traditional judicial deference to local police power and

places the burden of proof as to rough proportionality on the government. In City of Monterey v. Del Monte Dunes at Monterey,

Ltd.,40 the Court unanimously confined the Dolan rough proportionality test—and, by implication, the Nollan nexus test—to the

exaction context that gave rise to those cases. For certain, then, is

that City of Monterey bars application of rough proportionality to

outright denials of development. Still unclear, however, is whether

the Court meant to place outside Dolan exactions of a purely monetary nature, in contrast with the dedication conditions involved in

Nollan and Dolan.41

[P. 1393, add to text following n.306:]

Outside the land-use context, however, the Court has now recognized a limited number of situations where invalidation, rather

than compensation, remains the appropriate takings remedy.42

[P. 1394, change n.312 to read:]

Hodel v. Irving, 481 U.S. 704 (1987) (complete abrogation of the right to pass

on to heirs fractionated interests in lands constitutes a taking); Babbitt v. Youpee,

519 U.S. 234 (1997) (same result based on ‘‘severe’’ restriction of the right).

106 AMENDMENT 5—RIGHTS OF PERSONS

43Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) (interest on client funds in state Interest on Lawyers Trust Account program is property of client

within meaning of Takings Clause, though funds could not generate net interest in

absence of program). 44 473 U.S. 172 (1985). 45 477 U.S. 340 (1986). 46Most recently, the Court found the final-decision prerequisite met in Suitum

v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997). That threshold showing,

said the Court, did not demand that a landowner first apply for approval of her sale

of transferrable development rights (TDRs) where the parties agreed on the TDRs

to which she was entitled and their value was simply an issue of fact. Suitum is

also significant for reaffirming the two-prong Williamson County ripeness test, despite its rigorous application by lower federal courts to avoid reaching the merits

in the majority of cases. 47Pennell v. City of San Jose, 485 U.S. 1 (1988).

[P. 1394, add to text after n.312:]

Nor must property have realizable net value to fall under the

Takings Clause.43

[P. 1395, delete remainder of paragraph after n.314 and substitute

the following new paragraph:]

Failure to incur such administrative (and judicial) delays can

result in dismissal of an as-applied taking claim based on ripeness

doctrine, an area of takings law that the Court has developed extensively since Penn Central. In the leading decision of Williamson

County Regional Planning Commission v. Hamilton Bank,44 the

Court announced the canonical two-part ripeness test for takings

actions brought in federal court against state and local agencies.

First, for an as-applied challenge, the property owner must obtain

from the regulating agency a ‘‘final, definitive position’’ regarding

how it will apply its regulation to the owner’s land. Second, the

owner must exhaust any possibilities for obtaining compensation

from state fora before coming to federal court. Thus, the claim in

Williamson County was found unripe because the plaintiff had

failed to seek a variance (first prong of test), and had not sought

compensation from the state courts in question even though they

recognized inverse condemnation claims (second prong). Similarly,

in MacDonald, Sommer & Frates v. County of Yolo,45 a final decision was found lacking where the landowner had been denied approval for one subdivision plan calling for intense development, but

that denial had not foreclosed the possibility that a scaled-down

(though still economic) version would be approved.46 In a somewhat

different context, a taking challenge to a municipal rent control ordinance was considered ‘‘premature’’ in the absence of evidence

that a tenant hardship provision had ever been applied to reduce

what would otherwise be considered a reasonable rent increase.47

Facial challenges dispense with the Williamson County final deciVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00107 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 5—RIGHTS OF PERSONS 107

48See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S.

264, 295–97 (1981) (facial challenge to surface mining law rejected); United States

v. Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere permit requirement

does not itself take property); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480

U.S. 470, 493–502 (1987) (facial challenge to anti-subsidence mining law rejected).

sion prerequisite, though at great risk to the plaintiff in that without pursuing administrative remedies, a claimant often lacks evidence that a statute has the requisite economic impact on his or

her property.48

109

1See In re Winship, 397 U.S. 358, 364 (1970). 2Sullivan v. Louisiana, 508 U.S. 275 (1993).

3 United States v. Gaudin, 515 U.S. 506 (1995).

4Gaudin, 515 U.S. at 523. 5 Neder v. United States, 527 U.S. 1 (1999).

6Lewis v. United States, 518 U.S. 322 (1996).

SIXTH AMENDMENT

RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial

[P. 1408, change heading to:]

—The Attributes and Function of the Jury

[P. 1410, add to text following n.64:]

Certain functions of the jury are likely to remain consistent between the federal and state court systems. For instance, the requirement that a jury find a defendant guilty beyond a reasonable

doubt, which had already been established under the Due Process

Clause,1 has been held to be a standard mandated by the Sixth

Amendment.2 The Court further held that the Fifth Amendment

Due Process Clause and the Sixth Amendment require that a jury

find a defendant guilty of every element of the crime with which

he is charged, including questions of mixed law and fact.3 Thus, a

district court presiding over a case of providing false statements to

a federal agency in violation of 18 U.S.C. § 1001 erred when it took

the issue of the ‘‘materiality’’ of the false statement away from the

jury.4 Later, however, the Court backed off from this latter ruling,

holding that failure to submit the issue of materiality to the jury

in a tax fraud case can constitute harmless error.5

—Criminal Proceedings to Which the Guarantee Applies

[P. 1411, add to text following n.68:]

A defendant who is prosecuted in a single proceeding for multiple petty offenses, however, does not have a constitutional right

to a jury trial, even if the aggregate of sentences authorized for the

offense exceeds six months.6

[P. 1411, add to n.73:]

The distinction between criminal and civil contempt may be somewhat more

elusive. International Union, UMW v. Bagwell, 512 U.S. 821 (1994) (fines levied on

the union were criminal in nature where the conduct did not occur in the court’s

presence, the court’s injunction required compliance with an entire code of conduct,

and the fines assessed were not compensatory).

110 AMENDMENT 6—RIGHTS OF ACCUSED

7 United States v. Cabrales, 524 U.S. 1 (1998).

8Portuondo v. Agard, 120 S. Ct. 1119 (2000).

Impartial Jury

[P. 1416, add to n.104:]

The same rule applies in the federal setting. United States v. Martinez-Salazar,

120 S. Ct. 774 (2000).

PLACE OF TRIAL—JURY OF THE VICINAGE

[P. 1419, add to text following n.128:]

Thus, a defendant cannot be tried in Missouri for moneylaundering if the charged offenses occurred in Florida and there

was no evidence that the defendant had been involved with the receipt or transportation of the proceeds from Missouri.7

CONFRONTATION

[P. 1422, add to text following n.154:]

A prosecutor, however, can comment on a defendant’s presence

at trial, and call attention to the defendant’s opportunity to tailor

his or her testimony to comport with that of previous witnesses.8

[P. 1423, add to n.158:]

Bruton was held applicable, however, where a blank space or the word ‘‘deleted’’

is substituted for the defendant’s name in a co-defendant’s confession, making such

confession incriminating of the defendant on its face. Gray v. Maryland, 523 U.S.

185 (1998).

[P. 1423, add to n.160:]

Lilly v. Virginia, 527 U.S. 116 (1999).

ASSISTANCE OF COUNSEL

Development of an Absolute Right to Counsel at Trial

—Gideon v. Wainwright

[P. 1435, n.217, delete citation and parenthetical to Baldasar v. Illinois appearing after last semi-colon, and insert the following:]

But see Nichols v. United States, 511 U.S. 738 (1994) (as Scott v. Illinois, 440

U.S. 367 (1979) provides that an uncounseled misdemeanor conviction is valid if defendant is not incarcerated, such a conviction may be used as the basis for penalty

enhancement upon a subsequent conviction).

AMENDMENT 6—RIGHTS OF ACCUSED 111

9 506 U.S. 364 (1993).

10 506 U.S. at 368–70 (1993) (failure of counsel to raise a constitutional claim

that was valid at time of trial did not constitute ‘‘prejudice’’ because basis of claim

had since been overruled).

11Martinez v. Court of App. of Cal., Fourth App. Dist., 120 S. Ct. 684 (2000).

The Sixth Amendment itself ‘‘does not include any right to appeal.’’ 120 S. Ct. at

690.

—Effective Assistance of Counsel

[P. 1439, add to n.244:]

In Hill v. Lockhart, 474 U.S. 52 (1985), the Court applied the Strickland test

to attorney decisions in plea bargaining, holding that a defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty.

[P. 1439, delete last sentence at end of first full paragraph on page

and add the following:]

In Lockhart v. Fretwell,9 the Court refined the Strickland test

to require that not only would a different trial result be probable

because of attorney performance, but that the trial result which did

occur was fundamentally unfair or unreliable.10

[P. 1440, n.247, delete citation to Lozada v. Deeds and accompanying

sentence, and substitute the following:]

Also not constituting per se ineffective assistance is a defense counsel’s failure

to file a notice of appeal, or even to consult with the defendant about an appeal.

Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000).

—Self-Representation

[P. 1440, add to text at end of first paragraph of section:]

The right applies only at trial; there is no constitutional right

to self-representation on direct appeal from a criminal conviction.11

113

1Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996) (interpretation

and construction of terms underlying patent claims may be reserved entirely for the

court).

SEVENTH AMENDMENT

TRIAL BY JURY IN CIVIL CASES

Application of the Amendment

—Cases ‘‘at Common Law’’

[P. 1455, add to n.29:]

Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998) (jury trial required

for copyright action with close analogue at common law, even though the relief

sought is not actual damages but statutory damages based on what is ‘‘just).’’

[P. 1455, add to text following n.30:]

Where there is no direct historical antecedent dating to the

adoption of the amendment, the court may also consider whether

existing precedent and the sound administration of justice favor

resolution by judges or juries.1

—Procedures Limiting Jury’s Role

[P. 1461, add to n.59:]

A federal appellate court may also review a district court’s denial of a motion

to set aside an award as excessive under an abuse of discretion standard. Gasperini

v. Center for Humanities, Inc., 518 U.S. 415 (1996) (New York State law which requires a review of jury awards to determine if they ‘‘deviate materially from reasonable compensation’’ may be adopted by federal district, but not appellate, court exercising diversity jurisdiction).

—Directed Verdicts

[P. 1461, add new footnote at end of sentence beginning after n.61:]

But see Hetzel v. Prince William County, 523 U.S. 208 (1998) (when an appeals

court affirms liability but orders level of damages to be reconsidered, the plaintiff

has a Seventh Amendment right either to accept the reduced award or to have a

new trial).

115

1 In Austin v. United States, 509 U.S. 602 (1993), the Court noted that the application of the Excessive Fines Clause to civil forfeiture did not depend on whether

it was a civil or criminal procedure, but rather on whether the forfeiture could be

seen as punishment. The Court was apparently willing to consider any number of

factors in making this evaluation; civil forfeiture was found to be at least partially

intended as punishment, and thus limited by the clause, based on its common law

roots, its focus on culpability, and various indications in the legislative histories of

its more recent incarnations.

2 524 U.S. 321 (1998).

3The Court held that a criminal forfeiture, which is imposed at the time of sentencing, should be considered a fine, because it serves as a punishment for the underlying crime. 524 U.S. at 328. The Court distinguished this from civil forfeiture,

which, as an in rem proceeding against property, would generally not function as

a punishment of the criminal defendant. 524 U.S. at 330–32.

4 In Bajakajian, the lower court found that the currency in question was not derived from illegal activities, and that the defendant, who had grown up a member

of the Armenian minority in Syria, had failed to report the currency out of distrust

of the government. 524 U.S. at 325–26. The Court found it relevant that the defendant did not appear to be among the class of persons for whom the statute was designed, i.e., a money launderer or tax evader, and that the harm to the government

from the defendant’s failure to report the currency was minimal. 524 U.S. at 338.

EIGHTH AMENDMENT

EXCESSIVE FINES

[P. 1471, add to text following n.35:]

The Court has held, however, that the Excessive Fines Clause

can be applied in civil forfeiture cases.1

[P. 1471, delete paragraph after n.35, and add the following:]

In 1998, however, the Court discerned a previously unseen vitality in the strictures of this clause. In United States v.

Bajakajian,2 the government sought to require that a criminal defendant charged with violating federal reporting requirements regarding the transportation of more than $10,000 in currency out of

the country forfeit the currency involved, which totaled $357,144.

The Court held that the forfeiture 3 in this particular case would

violate the Excessive Fines Clause and that the amount forfeited

was grossly disproportionate to the gravamen of defendant’s offense. In determining proportionality, the Court did not limit itself

to a comparison of the fine amount to the proven offense, but it

also considered the particular facts of the case, the character of the

defendant, and the harm caused by the offense.4

116 AMENDMENT 8—PUNISHMENT FOR CRIME

CRUEL AND UNUSUAL PUNISHMENTS

—Capital Punishment

[P. 1478, add to n.69:]

Consequently, a judge may be given significant discretion to override a jury sentencing recommendation, as long as the court’s decision is adequately channeled to

prevent arbitrary results. Harris v. Alabama, 513 U.S. 504 (1995) (Eighth Amendment not violated where judge is only required to ‘‘consider’’ a capital jury’s sentencing recommendation).

[P. 1480, add to n.76:]

But see Tuilaepa v. California, 512 U.S. 967 (1994) (holding that permitting capital juries to consider the circumstances of the crime, the defendant’s prior criminal

activity, and the age of the defendant, without further guidance, is not unconstitutionally vague).

[P. 1480, add to n.77:]

Arave v. Creech, 507 U.S. 463 (1993) (consistent application of narrowing construction of phrase ‘‘exhibited utter disregard for human life’’ to require that the defendant be a ‘‘cold-blooded, pitiless slayer’’ cures vagueness).

[P. 1480, add to n.81 after citation to Spaziano v. Florida:]

See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant charged with felony murder did not have right to instruction as to second degree murder or manslaughter,

where Nebraska traditionally did not consider these lesser included offenses).

[P. 1481, add to n.82:]

Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of death penalty after introduction of evidence that defendant had been sentenced to death previously did not

diminish the jury’s sense of responsibility so as to violate the Eighth Amendment).

[P. 1483, add new footnote at end of second sentence of paragraph

beginning after n.93:]

See, e.g., Johnson v. Texas, 509 U.S. 350 (1993) (consideration of youth as a

mitigating factor may be limited to jury estimation of probability that defendant

would commit future acts of violence).

[P. 1483, add new footnote at end of third sentence of paragraph beginning after n.93:]

Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial court’s use of invalid

aggravating factor where appellate court fails to reweigh mitigating and aggravating factors).

[P. 1484, add to n.98:]

A court is not required give a jury instruction expressly directing the jury to

consider mitigating circumstance, as long as the instruction actually given affords

the jury the discretion to take such evidence into consideration. Buchanan v.

Angelone, 522 U.S. 269 (1998). By the same token, a court did not offend the Constitution by directing the jury’s attention to a specific paragraph of a constituVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00117 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 8—PUNISHMENT FOR CRIME 117

5Simmons v. South Carolina, 512 U.S. 154 (1994). But see Ramdass v.

Angelone, 120 S. Ct. 2113 (2000) (refusing to apply Simmons because the defendant

was not technically parole ineligible at time of sentencing).

6 Herrera v. Collins, 506 U.S. 390 (1993) (holding that a petitioner would have

to meet an ‘‘extraordinarily high’’ threshold of proof of innocence to warrant federal

habeas relief).

7 386 U.S. 18 (1967).

8 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).

9 Brecht v. Abrahamson, 507 U.S. at 637 (quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)). Brecht was a non-capital case, but the rule was subsequently applied in a capital case. Calderon v. Coleman, 525 U.S. 141 (1998) (per curiam).

tionally sufficient instruction in response to the jury’s question about proper construction of mitigating circumstances. Weeks v. Angelone, 120 S. Ct. 727 (2000).

[P. 1484, add to text following n.100:]

Due process considerations can also come into play; if the state

argues for the death penalty based on the defendant’s future dangerousness, due process requires that the jury be informed if the

alternative to a death sentence is a life sentence without possibility

of parole.5

[P. 1484, add to n.103:]

Thus, where psychiatric testimony was introduced regarding an invalid statutory aggravating circumstance, and where the defendant was not provided the assistance of an independent psychiatrist in order to develop rebuttal testimony, the

lack of rebuttal testimony might have affected how the jury evaluated another aggravating factor. Consequently, the reviewing court erred in reinstating a death sentence based on this other valid aggravating factor. Tuggle v. Netherland, 516 U.S.

10 (1995) (per curiam).

[P. 1487, add to text following n.116:]

In addition, the Court has held that, absent an independent

constitutional violation, habeas corpus relief for prisoners who assert innocence based on newly discovered evidence should generally

be denied.6 Third, a different harmless error rule is applied when

constitutional errors are alleged in habeas proceedings. The Chapman v. California 7 rule applicable on direct appeal, requiring the

State to prove beyond a reasonable doubt that a constitutional

error is harmless, is inappropriate for habeas review, the Court

concluded, given the ‘‘secondary and limited’’ role of federal habeas

proceedings.8 The appropriate test is that previously used only for

non-constitutional errors: ‘‘whether the error ‘has substantial and

injurious effect or influence in determining the jury’s verdict.’ ’’ 9 A

fourth rule was devised to . . . .

118 AMENDMENT 8—PUNISHMENT FOR CRIME

—Prisons and Punishment

[P. 1498, add to n.171:]

Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who alleged exposure to secondhand ‘‘environmental’’ tobacco smoke stated a cause of action under the Eighth

Amendment).

[P. 1498, add to n.174:]

Deliberate indifference in this context means something more than disregarding

an unjustifiably high risk of harm that should have been known, as might apply

in the civil context. Rather, it requires a finding that the responsible person acted

in reckless disregard of a risk of which he or she was aware, as would generally

be required for a criminal charge of recklessness. Farmer v. Brennan, 511 U.S. 825

(1994).

119

1 514 U.S. 549 (1995).

2 514 U.S. at 552, 567–68 (1995). 3 120 S. Ct. 1740 (2000).

4 120 S. Ct. at 1754.

5 521 U.S. 898 (1997).

6 521 U.S. at 935.

TENTH AMENDMENT

RESERVED POWERS

Effect of Provision on Federal Powers

—Federal Police Power

[P. 1514, add to text following n.42:]

Reversing this trend, the Court in 1995 in United States v.

Lopez 1 struck down a statute prohibiting possession of a gun at or

near a school, rejecting an argument that possession of firearms in

school zones can be punished under the Commerce Clause because

it impairs the functioning of the national economy. Acceptance of

this rationale, the Court said, would eliminate ‘‘a[ny] distinction

between what is truly national and what is truly local,’’ would convert Congress’ commerce power into ‘‘a general police power of the

sort retained by the States,’’ and would undermine the ‘‘first principle’’ that the Federal Government is one of enumerated and limited powers.2 Application of the same principle led five years later

to the Court’s decision in United States v. Morrison 3 invalidating

a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate ‘‘non-economic, violent criminal

conduct based solely on that conduct’s aggregate effect on interstate commerce,’’ the Court concluded. ‘‘[W]e can think of no better

example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression

of violent crime and vindication of its victims.’’ 4

—Federal Regulations Affecting State Activities and Instrumentalities

[P. 1518, add new paragraphs at end of section:]

Extending the principle applied in New York, the Court in

Printz v. United States 5 held that Congress may not ‘‘circumvent’’

the prohibition on commandeering a state’s regulatory processes

‘‘by conscripting the State’s officers directly.’’ 6 Struck down in

Printz were interim provisions of the Brady Handgun Violence ProVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00120 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
120 AMENDMENT 10—RESERVED STATE POWERS

7 Id.

8 120 S. Ct. 666 (2000).

9 484 U.S. 505, 514–15 (1988).

10 120 S. Ct. at 672.

11 Id.

tection Act that required state and local law enforcement officers

to conduct background checks on prospective handgun purchasers.

‘‘The Federal Government may neither issue directives requiring

the States to address particular problems, nor command the States’

officers . . . to administer or enforce a federal regulatory program.

It matters not whether policymaking is involved, and no case-bycase weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.’’ 7

In Reno v. Condon,8 the Court distinguished New York and

Printz in upholding the Driver’s Privacy Protection Act of 1994

(DPPA), a federal law that restricts the disclosure and resale of

personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in

South Carolina v. Baker that distinguishes between laws which improperly seek to control the manner in which States regulate private parties, and those which merely regulate state activities directly.9 Here, the Court found that the DPPA ‘‘does not require the

States in their sovereign capacities to regulate their own citizens,’’

but rather ‘‘regulates the States as the owners of databases.’’ 10 The

Court saw no need to decide whether a federal law may regulate

the states exclusively, since the DPPA is a law of general applicability that regulates private resellers of information as well as

states.11

121

1 California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) (application of the

Abandoned Shipwreck Act) (distinguishing Ex parte New York and Treasure Salvors

as involving in rem actions against property actually in possession of the State). 2 Alden v. Maine, 527 U.S. 706, 713 (1999).

3 517 U.S. 44 (1996).

ELEVENTH AMENDMENT

STATE IMMUNITY

Purpose and Early Interpretation

—Expansion of the Immunity of the States

[P. 1526, add to text following n.31:]

An in rem admiralty action may be brought, however, if the

State is not in possession of the res.1

[P. 1527, add to n.32 after first citation:]

Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign nation may not contest validity of criminal conviction after State’s failure at time of arrest to comply with notice requirements of Vienna Convention on Consular Relations).

The Nature of the States’ Immunity

[P. 1527, add to n.33:]

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996).

[P. 1528, add to n.43 after first sentence and accompanying citation:]

Of course, when a state is sued in federal court pursuant to federal law, the

Federal Government, not the defendant state, is ‘‘the authority that makes the law’’

creating the right of action. See Seminole Tribe of Florida v. Florida, 517 U.S. 44,

154 (1996) (Justice Souter dissenting).

[P. 1528, add to text following n.43:]

This view also has support in modern case law:’’ . . . the State’s

immunity from suit is a fundamental aspect of sovereignty which

the States enjoyed before the ratification of the Constitution, and

which they retain today . . . .’’ 2

[P. 1530, delete n.51 and accompanying text]

[P. 1530, delete second full paragraph on page]

[P. 1531, add to text at end of section:]

The Hans interpretation has been solidified with the Court’s

ruling in Seminole Tribe of Florida v. Florida,3 that Congress lacks

the power under Article I to abrogate state immunity under the

122 AMENDMENT 11—SUITS AGAINST STATES

4 Chief Justice Rehnquist wrote the opinion of the Court in Seminole Tribe,

joined by Justices O’Connor, Scalia, Kennedy, and Thomas. Justice Stevens dissented, as did Justice Souter, whose opinion was joined by Justices Ginsburg and

Breyer. In Alden, Justice Kennedy wrote the opinion of the Court, joined by the

Chief Justice, and by Justices O’Connor, Scalia, and Thomas. Justice Souter’s dissenting opinion was joined by Justices Stevens, Ginsburg, and Breyer.

5 517 U.S. 44 (1996) (invalidating a provision of the Indian Gaming Regulatory

Act authorizing an Indian tribe to sue a State in federal court to compel performance of a duty to negotiate in good faith toward the formation of a compact).

6 517 U.S. at 63.

7 134 U.S. 1 (1890).

8 517 U.S. at 64 (quoting Pennhurst State School & Hosp. v. Halderman, 465

U.S. 89, 97–98 (1984).

Eleventh Amendment, and with its ruling in Alden v. Maine that

the broad principle of sovereign immunity reflected in the Eleventh

Amendment bars suits against states in state courts as well as federal. Both of these cases, however, were 5 to 4 decisions, with the

four dissenting Justices believing that Hans was wrongly decided.4

Suits Against States

—Consent to Suit and Waiver

[P. 1533, add to n.68:]

The fact that a state agency can be indemnified for the costs of litigation does

not divest the agency of its Eleventh Amendment immunity. Regents of the University of California v. Doe, 519 U.S. 425 (1997).

—Congressional Withdrawal of Immunity

[P. 1535, delete last sentence of first paragraph and substitute the

following new paragraphs:]

Pennsylvania v. Union Gas lasted less than seven years, the

Court overruling it in Seminole Tribe of Florida v. Florida.5 Chief

Justice Rehnquist, writing for a 5 to 4 majority, concluded that

there is ‘‘no principled distinction in favor of the States to be drawn

between the Indian Commerce Clause [at issue in Seminole Tribe]

and the Interstate Commerce Clause [relied upon in Union Gas].’’ 6

In the majority’s view, Union Gas had deviated from a line of cases

tracing back to Hans v. Louisiana 7 that viewed the Eleventh

Amendment as implementing the ‘‘fundamental principle of sovereign immunity [that] limits the grant of judicial authority in Article III.’’ 8 Because ‘‘the Eleventh Amendment restricts the judicial

power under Article III, . . . Article I cannot be used to circumvent

AMENDMENT 11—SUITS AGAINST STATES 123

9 517 U.S. at 72–73. Justice Souter’s dissent undertook a lengthy refutation of

the majority’s analysis, asserting that the Eleventh Amendment is best understood,

in keeping with its express language, as barring only suits based on diversity of citizenship, and as having no application to federal question litigation. Moreover, Justice Souter contended, the state sovereign immunity that the Court mistakenly recognized in Hans v. Louisiana was a common law concept that ‘‘had no constitutional

status and was subject to congressional abrogation.’’ 517 U.S. at 117. The Constitution made no provision for wholesale adoption of the common law, but, on the contrary, was premised on the view that common law rules would always be subject

to legislative alteration. This ‘‘imperative of legislative control grew directly out of

the Framers’ revolutionary idea of popular sovereignty.’’ Id. at 160. 10 College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) (The Trademark Remedy Clarification Act, an amendment to

the Lanham Act, did not validly abrogate state immunity); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws abrogating state immunity from infringement suits is invalid);

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) (abrogation of state immunity

in the Age Discrimination in Employment Act is invalid). 11 427 U.S. 445 (1976). 12 517 U.S. at 65–66. 13See, particularly, Dellmuth v. Muth, 491 U.S. 223, 230 (1989) (‘‘legislative history generally will be irrelevant’’), and Hoffman v. Connecticut Dep’t of Income

Maintenance, 492 U.S. 96, 103–04 (1989). 14 Justice Kennedy for the Court in Dellmuth, supra, 491 U.S. at 231, expressly

noted that the statute before the Court did not demonstrate abrogation with unmistakably clarity because, inter alia, it ‘‘makes no reference whatsoever to either the

Eleventh Amendment or the States’ sovereign immunity.’’ Justice Scalia, one of four

concurring Justices, expressed an ‘‘understanding’’ that the Court’s reasoning would

allow for clearly expressed abrogation of immunity ‘‘without explicit reference to

state sovereign immunity or the Eleventh Amendment.’’ Id. at 233.

the constitutional limitations placed upon federal jurisdiction.’’ 9

Subsequent cases have confirmed this interpretation.10

Section 5 of the Fourteenth Amendment, of course, is another

matter. Fitzpatrick v. Bitzer,11 ‘‘based upon a rationale wholly inapplicable to the Interstate Commerce Clause, viz., that the Fourteenth Amendment, adopted well after the adoption of the Eleventh

Amendment and the ratification of the Constitution, operated to

alter the pre-existing balance between state and federal power

achieved by Article III and the Eleventh Amendment,’’ remains

good law.12

[Pp. 1535–36, delete remainder of paragraph following n.79 and add

the following:]

This means that no legislative history will suffice at all.13 Indeed, at one time a plurality of the Court was of the apparent view

that only if Congress refers specifically to state sovereign immunity

and the Eleventh Amendment will its language be unmistakably

clear.14 Thus, the Court held in Atascadero that general language

subjecting to suit in federal court ‘‘any recipient of Federal assistance’’ under the Rehabilitation Act was insufficient to satisfy this

test, not because of any question about whether States are ‘‘recipiVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00124 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
124 AMENDMENT 11—SUITS AGAINST STATES

15 Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246 (1985). And see

Dellmuth v. Muth, 491 U.S. 223 (1989). 16Following Atascadero, in 1986 Congress provided that States were not to be

immune under the Eleventh Amendment from suits under several laws barring discrimination by recipients of federal financial assistance. Pub. L. No. 99–506, § 1003,

100 Stat. 1845 (1986), 42 U.S.C. § 2000d–7. Following Dellmuth, Congress amended

the statute to insert the explicit language. Pub. L. No. 101–476, § 103, 104 Stat.

1106 (1990), 20 U.S.C. § 1403. See also the Copyright Remedy Clarification Act, Pub.

L. No. 101–553, § 2, 104 Stat. 2749 (1990), 17 U.S.C. § 511 (making States and state

officials liable in damages for copyright violations). 17Kimel v. Florida Board of Regents, 120 S. Ct. 631, 640–42 (2000). In Kimel,

statutory language authorized age discrimination suits ‘‘against any employer (including a public agency)’’ and a public agency was defined to include ‘‘the government of a State or political subdivision thereof.’’ The Court found this language to

be sufficiently clear evidence of intent to abrogate state sovereign immunity. The

relevant portion of the opinion was written by Justice O’Connor, and joined by Chief

Justice Rehnquist and Justices Stevens, Scalia, Souter, Ginsberg, and Breyer. 18 Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub.

Health and Welfare, 411 U.S. 279, 287 (1973). 19 527 U.S. 706 (1999). 20 527 U.S. at 713.

ents’’ within the meaning of the provision but because ‘‘given their

constitutional role, the States are not like any other class of recipients of federal aid.’’ 15 As a result of these rulings, Congress began

to utilize the ‘‘magic words’’ the Court appeared to insist on.16 More

recently, however, the Court has accepted less precise language.17

[P. 1536, delete paragraph containing n.85 and substitute the following:]

Having previously reserved the question of whether federal

statutory rights could be enforced in state courts,18 the Court in

Alden v. Maine 19 held that states could also assert Eleventh

Amendment ‘‘sovereign immunity’’ in their own courts. Recognizing

that the application of the Eleventh Amendment, which limits only

the federal courts, was a ‘‘misnomer’’ 20 as applied to state courts,

the Court nonetheless concluded that the principles of common law

sovereign immunity applied absent ‘‘compelling evidence’’ that the

States had surrendered such by the ratification of the Constitution.

Although this immunity is subject to the same limitations as apply

in federal courts, the Court’s decision effectively limited the application of significant portions of federal law to state governments.

Suits Against State Officials

[P. 1540, add to n.105:]

In the process of limiting application of Young, a Court majority has recently

referred to ‘‘the Young fiction.’’ Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281

(1997).

AMENDMENT 11—SUITS AGAINST STATES 125

21 521 U.S. 261 (1997).

22 521 U.S. at 281.

23 Id. at 284.

24 Id. at 282.

25 Id. at 296.

[P. 1541, add to n.112:]

In a case removed from state court, presence of a claim barred by the Eleventh

Amendment does not destroy jurisdiction over non-barred claims. Wisconsin Dep’t

of Corrections v. Schacht, 524 U.S. 381 (1998).

[P. 1544, add as first full paragraph on page (penultimate paragraph

in section):]

In Idaho v. Coeur d’Alene Tribe,21 the Court further narrowed

Ex parte Young. The implications of the case are difficult to predict,

due to the narrowness of the Court’s holding, the closeness of the

vote (5 to 4), and the inability of the majority to agree on a rationale. The holding was that the Tribe’s suit against state officials for

a declaratory judgment and injunction to establish the Tribe’s ownership and control of the submerged lands of Lake Coeur d’Alene

is barred by the Eleventh Amendment. The Tribe’s claim was based

on federal law—Executive Orders issued in the 1870s, prior to

Idaho Statehood. The portion of Justice Kennedy’s opinion that represented the opinion of the Court concluded that the Tribe’s ‘‘unusual’’ suit was ‘‘the functional equivalent of a quiet title action

which implicates special sovereignty interests.’’ 22 The case was

‘‘unusual’’ because state ownership of submerged lands traces to

the Constitution through the ‘‘equal footing doctrine,’’ and because

navigable waters ‘‘uniquely implicate sovereign interests.’’ 23 This

was therefore no ordinary property dispute in which the State

would retain regulatory control over land regardless of title. Rather, grant of the ‘‘far-reaching and invasive relief’’ sought by the

Tribe ‘‘would diminish, even extinguish, the State’s control over a

vast reach of lands and waters long . . . deemed to be an integral

part of its territory.’’ 24 A separate part of Justice Kennedy’s opinion, joined only by Chief Justice Rehnquist, advocated more

broadscale diminishment of Young. The two would apply case-bycase balancing, taking into account the availability of a state court

forum to resolve the dispute and the importance of the federal right

at issue. Concurring Justice O’Connor, joined by Justices Scalia

and Thomas, rejected such balancing. Young was inapplicable, Justice O’Connor explained, because ‘‘it simply cannot be said’’ that a

suit to divest the State of all regulatory power over submerged

lands ‘‘is not a suit against the State.’’ 25

127

1Saenz v. Roe, 526 U.S. 489 (1999).

2 526 U.S. at 525 (Thomas, J., dissenting).

3The right of United States citizens to choose their State of residence is specifically protected by the first sentence of the Fourteenth Amendment—‘‘All persons

born or naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they reside . . . .’’

FOURTEENTH AMENDMENT

[P. 1568, change heading to:]

PRIVILEGES OR IMMUNITIES

P. 1571, add new paragraph to text following n.32:]

In a doctrinal shift of uncertain significance, the Court will apparently evaluate challenges to durational residency requirements,

previously considered as violations of the right to travel derived

from the Equal Protection Clause, as a potential violation of the

Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians resident less than a year to the level of benefits available in the State

of their prior residence, the Court found a violation of the right of

newly arrived citizens to be treated the same as other state citizens.1 Despite suggestions that this opinion will open the door to

a ‘‘guaranteed equal access to all public benefits,’’ 2 it seems more

likely that the Court is protecting the privilege of being treated immediately as a full citizen of the State one chooses for permanent

residence.3

DUE PROCESS OF LAW

The Development of Substantive Due Process

—‘‘Liberty’’

[P. 1581, add to n.75:]

County of Sacramento v. Lewis, 523 U.S. 833 (1998) (high-speed automobile

chase by police officer causing death through deliberate or reckless indifference to

life would not violate the Fourteenth Amendment’s guarantee of substantive due

process).

128 AMENDMENT 14—RIGHTS GUARANTEED

4 Bennis v. Michigan, 516 U.S. 442 (1996).

5 120 S. Ct. 2597 (2000).

6The Nebraska law provided that such procedures could be performed where

‘‘necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.’’ Neb. Rev. Stat. Ann. § 28–

328(1).

Health, Safety, and Morals

—Protecting Morality

[P. 1636, add to text following n.163:]

Similarly, a court may order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation

on an innocent joint owner of the car.4

Procedure in Taxation

—Sufficiency of Remedy

[P. 1665, add to n.177:]

See also Reich v. Collins, 513 U.S. 106 (1994) (violation of due process to hold

out a post-deprivation remedy for unconstitutional taxation and then, after the disputed taxes had been paid, to declare that no such remedy exists); Newsweek, Inc.

v. Florida Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam) (violation of due process to limit remedy to one who pursued pre-payment of tax, where litigant reasonably relied on apparent availability of post-payment remedy).

Substantive Due Process and Noneconomic Liberty

[P. 1666, add to n.184:]

The Court has subsequently made clear that these cases dealt with ‘‘a complete

prohibition of the right to engage in a calling,’’ holding that ‘‘a brief interruption’’

did not constitute a constitutional violation. Conn v. Gabbert, 526 U.S. 286, 292

(2000).

—Abortion

[P. 1679, add to text at end of section:]

The passage of various state laws restricting so-called ‘‘partial

birth abortions’’ gave observers an opportunity to see if the ‘‘undue

burden’’ standard was in fact likely to lead to a major retrenchment in abortion regulation. In Stenberg v. Carhart,5 the Court reviewed a Nebraska statute which forbade ‘‘partially delivering

vaginally a living unborn child before killing the unborn child and

completing the delivery.’’ The Court noted that the prohibition appeared to apply to abortions performed throughout a pregnancy,

and that the lone exception was for an abortion necessary to preserve the life of the mother.6 Thus the statute brought into quesVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00129 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
AMENDMENT 14—RIGHTS GUARANTEED 129

7 Roe v. Wade, 410 U.S. 113, 164 (1973).

8 120 S. Ct. 2054 (2000).

9 120 S. Ct. at 2060.

10 521 U.S. 346 (1997).

tion both the distinction maintained in Casey between pre-viability

and post-viability abortions, and the oft-repeated language from

Roe, which provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or

health of a pregnant woman.7 The Court, however, reaffirmed these

central tenets of its abortion decisions, striking down the Nebraska

law because its possible application to pre-viability abortions was

too broad and the exception for threats to the life of the mother

was too narrow.

—Family Relationships

[P. 1689, add to text at end of section:]

The Court has, however, imposed limits on the ability of a

court to require that children be made available for visitation with

grandparents and other third parties. In Troxel v. Granville,8 the

Court evaluated a Washington State law which allowed ‘‘any person’’ to petition a court ‘‘at any time’’ to obtain visitation rights

whenever visitation ‘‘may serve the best interests’’ of a child. Under

this law, a child’s grandparents were awarded more visitation with

a child than was desired by the sole surviving parent. A plurality

of the Court, noting the ‘‘fundamental rights of parents to make decisions concerning the care, custody and control of their children,’’ 9

reversed this decision, noting the lack of deference to the parent’s

wishes and the contravention of the traditional presumption that

a fit parent will act in the best interests of a child.

[P. 1690, change heading to:]

—Liberty Interests of the Retarded, Mentally Ill or Abnormal: Civil

Commitment and Treatment

[P. 1691, add paragraph to text after n.310:]

The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate

persons predisposed to engage in specific criminal behaviors. In

Kansas v. Hendricks,10 the Court upheld a Kansas state law which

allowed civil commitment without a showing of ‘‘mental illness,’’ so

that a defendant diagnosed as a pedophile could be committed

based on his having a ‘‘mental abnormality’’ which made him ‘‘likely to engage in acts of sexual violence.’’ Although the Court miniVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00130 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
130 AMENDMENT 14—RIGHTS GUARANTEED

11 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding

that a State can not hold a person suffering from a personality disorder without

clear and convincing proof of a mental illness).

12 521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793

(1997), the Court also rejected an argument that a State which prohibited assisted

suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment.

13 521 U.S. at 720.

14 E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty

interest in terminating pregnancy).

15 A passing reference by Justice O’Connor in a concurring opinion in

Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty

interest in seeking pain relief, or ‘‘palliative’’ care. Glucksberg and Vacco 521 U.S.

at 736–37 (Justice O’Connor, concurring).

mized the use of this expanded nomenclature,11 the concept of abnormality appears both more encompassing and less defined than

the concept of illness. It is unclear how, or whether, the Court

would distinguish this case from the indefinite civil commitment of

other recidivists such as drug offenders.

—‘‘Right to Die’’

[P. 1693, add new paragraph at end of section:]

In Washington v. Glucksberg,12 however, the Supreme Court

rejected an argument that the Due Process Clause provides a terminally ill individual the right to seek and obtain a physician’s aid

in committing suicide. Reviewing a challenge to a state statutory

prohibition against assisted suicide, the Court noted that it moves

with ‘‘utmost care’’ before breaking new ground in the area of liberty interests.13 The Court pointed out that suicide and assisted

suicide have long been disfavored by the American judicial system,

and courts have consistently distinguished between passively allowing death to occur and actively causing such death. The Court

rejected the applicability of Cruzan and other liberty interest

cases,14 noting that while many of the interests protected by the

Due Process Clause involve personal autonomy, not all important,

intimate, and personal decisions are so protected. By rejecting the

notion that assisted suicide is constitutionally protected, the Court

also appears to preclude constitutional protection for other forms of

intervention in the death process, such as suicide or euthanasia.15

AMENDMENT 14—RIGHTS GUARANTEED 131

16 BMW v. Gore, 517 U.S. 559 (1996) (holding that a $2 million judgment for

failing to disclose to a purchaser that a ‘‘new’’ car had been repainted was ‘‘grossly

excessive’’ in relation to the State’s interest, as only a few of the 983 similarly repainted cars had been sold in that same State). But see TXO Prod. Corp. v. Alliance

Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title

does not violate the Due Process Clause of the Fourteenth Amendment even though

the jury awarded actual damages of only $19,000). 17 BMW v. Gore, 517 U.S. at 574–75 (1996).

PROCEDURAL DUE PROCESS: CIVIL

Power of the States to Regulate Procedure

—Costs, Damages, and Penalties

[P. 1698, add to n.34:]

See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of the Oregon Constitution limiting judicial review of the amount of punitive

damages awarded by a jury).

[P. 1698, add to text after n.34:]

The Court has indicated, however, that the amount of punitive

damages is limited to what is reasonably necessary to vindicate a

state’s interest in deterring unlawful conduct.16 These limits may

be discerned by a court by examining the degree of reprehensibility

of the act, the ratio between the punitive award and plaintiff’s actual or potential harm, and the legislative sanctions provided for

comparable misconduct.17

Jurisdiction

[P. 1716, change heading to:]

—Actions In Rem: Proceeding Against Property

[P. 1717, add to n.144:]

Predeprivation notice and hearing may be required if the property is not the

sort that, given advance warning, could be removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S.

43 (1993) (notice to owner required before seizure of house by government).

The Procedure Which is Due Process

—The Interests Protected: Entitlements and Positivist Recognition

[P. 1726, add to n.194:]

But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty

interest in worker’s compensation claim where reasonableness and necessity of particular treatment had not yet been resolved).

132 AMENDMENT 14—RIGHTS GUARANTEED

18Sandin v. Conner, 515 U.S. 472, 484 (1995) (solitary confinement not atypical

‘‘in relation to the ordinary incidents of prison life’’).

19Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).

20 City of West Covina v. Perkins, 525 U.S. 234 (1999).

[P. 1730, add to n.214 after citation to Connecticut Bd. of Pardons v.

Dumschat:]

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).

[P. 1731, add to text following n.215:]

In an even more recent case, the Court limited the application

of this test to those circumstances where the restraint on freedom

imposed by the State creates an ‘‘atypical and significant’’ deprivation.18

—When is Process Due

[P. 1737, add to text following n.246:]

Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then

a prompt hearing held after the adverse action may be sufficient.19

—The Requirements of Due Process

[P. 1741, add to n.269:]

See also Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may

not apply where taxpayers who challenged a county’s occupation tax had not been

informed of the prior case and where their interests had not been adequately protected).

[P. 1741, add to text following n.270:]

Such notice, however, need not describe the legal procedures

necessary to protect one’s interest if such procedures are otherwise

set out in published, generally available public sources.20

[P. 1741, add to n.272:]

Even where a court finds that a party was not prejudiced by the lack of a hearing, and where an appeal was provided, failure to give notice and hearing is a violation of due process. Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgment to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

AMENDMENT 14—RIGHTS GUARANTEED 133

21Kolender v. Lawson, 461 U.S. 352, 358 (1983). 22 City of Chicago v. Morales, 527 U.S. 41 (1999). 23 United States v. Lanier, 520 U.S. 259, 271–72 (1997).

PROCEDURAL DUE PROCESS—CRIMINAL

The Elements of Due Process

—Clarity in Criminal Statutes: The Void-For-Vagueness Doctrine

[P. 1749, add to text following n.20:]

A loitering statute which is triggered by failure to obey a police

dispersal order may not, however, leave a police officer absolute

discretion to give such orders.21 Thus, a Chicago ordinance, which

required police to disperse all persons in the company of ‘‘criminal

street gang members’’ while in a public place with ‘‘no apparent

purpose,’’ failed to meet the ‘‘requirement that a legislature establish minimal guidelines to govern law enforcement.’’ 22 The Court

noted that ‘‘no apparent purpose’’ is inherently subjective because

its application depends on whether some purpose is ‘‘apparent’’ to

the officer, who would presumably have the discretion to ignore

such apparent purposes as engaging in idle conversation or enjoying the evening air.

—Other Aspects of Statutory Notice

[P. 1750, add to text following n.24:]

Persons may be bound by a novel application of a statute, not

supported by Supreme Court or other ‘‘fundamentally similar’’ case

precedent, so long as the court can find that, under the circumstance, ‘‘unlawfulness . . . is apparent’’ to the defendant.23

—Initiation of the Prosecution

[P. 1753, add to n.43:]

The Court has also rejected an argument that due process requires that criminal prosecutions go forward only on a showing of probable cause. Albright v. Oliver,

510 U.S. 266 (1994) (holding that there is no civil rights action based on the Fourteenth Amendment for arrest and imposition of bond without probable cause).

—Fair Trial

[P. 1756, add to n.59:]

But see Montana v. Egelhoff, 518 U.S. 37 (1996) (State may bar defendant from

introducing evidence of intoxication to prove lack of mens rea).

134 AMENDMENT 14—RIGHTS GUARANTEED

24 473 U.S. 667 (1985). 25 473 U.S. at 682. 26See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony made

unavailable by Government deportation of witnesses); Strickland v. Washington, 466

U.S. 668 (1984) (incompetence of counsel). 27 473 U.S. at 676–77. 28Strickler v. Greene, 527 U.S. 263 (1999).

—Prosecutorial Misconduct

[P. 1760, add to n.76:]

See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no Due

Process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case).

[P. 1760, add to text after n.80:]

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate

level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if

the fairness of the trial was at issue, why the circumstances of the

failure to disclose should affect the evaluation of the impact that

such information would have had on the trial. Ultimately, the

Court addressed these issue in the case of United States v.

Bagley.24

In Bagley, the Court established a uniform test for materiality,

choosing the most stringent requirement that evidence is material

if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have

been different.25 This materiality standard, found in contexts outside of Brady inquiries,26 is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses.27 Thus, where inconsistent earlier statements

by a witness to an abduction were not disclosed, the Court weighed

the specific effect that impeachment of the witness would have had

on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result.28

—Proof, Burden of Proof, and Presumptions

[P. 1761, add to n.83:]

See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt).

AMENDMENT 14—RIGHTS GUARANTEED 135

29McMillan v. Pennsylvania, 477 U.S. 79 (1986).

30 120 S. Ct. 2348, 2362–63 (2000) (interpreting New Jersey’s ‘‘hate crime’’ law).

31Walton v. Arizona, 497 U.S. 639 (1990).

32This limiting principle does not apply to sentencing enhancements based on

recidivism. Apprendi, 120 S. Ct. at 2361–62. As enhancement of sentences for repeat

offenders is traditionally considered a part of sentencing, establishing the existence

of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United

States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to

a maximum sentence of two years, but upon proof of felony record, is subject to a

maximum of 20 years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to

bear the burden of challenging the validity of such a conviction).

[P. 1762, add to n.87:]

But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define ‘‘reasonable doubt’’ as requiring a ‘‘moral certainty’’ or as

equivalent to ‘‘substantial doubt’’ did not violate due process because other clarifying

language was included.)

[Pp. 1763–64, delete last sentence and accompanying footnote (96) of

paragraph beginning on P. 1763 and substitute the following:]

Another important distinction which can substantially affect a

prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. While a criminal

conviction is generally established by a jury using the ‘‘beyond a

reasonable doubt’’ standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient ‘‘preponderance of the evidence’’ standard. The Court has

taken a formalistic approach to this issue, allowing States to essentially designate which facts fall under which of these two categories. For instance, the Court has held that whether a defendant

‘‘visibly possessed a gun’’ during a crime may be designated by a

State as a sentencing factor, and determined by a judge based on

the preponderance of evidence.29 Although the Court has generally

deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi v. New Jersey by holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.30 This decision, however, arguably

conflicts with related case law regarding, for instance, the use of

aggravating sentencing factors by judges in imposing capital punishment,31 and is subject to at least one exception.32 Further, the

decision might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range.

136 AMENDMENT 14—RIGHTS GUARANTEED

33Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). 34 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 35 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)

—Sentencing

[P. 1765, add to n.104 after Spencer v. Texas citation:]

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

—The Problem of the Incompetent or Insane Defendant or Convict

[P. 1769, add to n.120:]

It is a violation of due process, however, for a State to require that a defendant

must prove competence to stand trial by clear and convincing evidence. Cooper v.

Oklahoma, 517 U.S. 348 (1996).

—Rights of Prisoners

[P. 1773, add to n.150:]

Establishing a right of access to law materials, however, requires an individualized demonstration of an inmate having been hindered in efforts to pursue a legal

claim. See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the State ‘‘enable [a] prisoner to discover grievances, and to litigate effectively’’).

—Probation and Parole

[P. 1780, add to text at end of sentence carried over from P. 1779:]

The power of the executive to pardon, or grant clemency, being

a matter of grace, is rarely subject to judicial review.33

EQUAL PROTECTION OF THE LAWS

Scope and Application

—State Action

[P. 1796, add to text following n.52:]

Or, where a state worker’s compensation statute was amended

to allow, but not require, an insurer to suspend payment for medical treatment while the necessity of the treatment was being evaluated by an independent evaluator, this action was not fairly attributable to the State, and thus pre-deprivation notice of the suspension was not required.34

[P. 1797, add to text following n.60:]

to private insurance companies providing worker’s compensation coverage,35

AMENDMENT 14—RIGHTS GUARANTEED 137

36 515 U.S. 200 (1995). This was a 5 to 4 decision. Justice O’Connor’s opinion

of Court was joined by Chief Justice Rehnquist, and by Justices Kennedy, Thomas,

Equal Protection: Judging Classifications by Law

—The Traditional Standard: Restrained Review

[P. 1805, add footnote to sentence appearing after n.107:]

Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate

Equal Protection Clause by distinguishing between terminally ill patients on lifesupport systems who are allowed to direct the removal of such systems and patients

who are not on life support systems and are not allowed to hasten death by selfadministering prescribed drugs).

TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION

AND RELATED EXERCISES OF THE POLICE POWER

Police Power Regulation

—Classification

[P. 1831, add to n.260 after paragraph headed ‘‘Attorneys’’:]

Cable Television: exemption from regulation under the Cable Communications

Policy Act of facilities that serve only dwelling units under common ownership. FCC

v. Beach Communications, 508 U.S. 307 (1993). Regulatory efficiency is served by

exempting those systems for which the costs of regulation exceed the benefits to consumers, and potential for monopoly power is lessened when a cable system operator

is negotiating with a single owner.

Other Business and Employment Relations

—Labor Relations

[P. 1834, add footnote at end of first sentence of section:]

Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 (1999)

(upholding limitation on the authority of public university professors to bargain over

instructional workloads).

EQUAL PROTECTION AND RACE

Juries

[P. 1855, add to n.79 after citation to Powers v. Ohio:]

Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury).

Permissible Remedial Utilizations of Racial Classifications

[P. 1868, delete last sentence and add to text at end of section:]

The distinction between federal and state power to apply racial

classifications proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena 36 that racial classifications imposed by fedVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00138 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
138 AMENDMENT 14—RIGHTS GUARANTEED

and—to the extent not inconsistent with his own concurring opinion—Scalia. Justices Stevens, Souter, Ginsburg and Breyer dissented. 37 515 U.S. at 227 (emphasis original). 38 511 U.S. 127 (1994).

eral law must be analyzed by the same strict scrutiny standard

that is applied to evaluate state and local classifications based on

race. The Court overruled Metro Broadcasting and, to the extent

that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefited by the particular

classification; there is no intermediate standard applicable to ‘‘benign’’ racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on

the group characteristic of race ‘‘should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection

. . . has not been infringed.’’ 37

THE NEW EQUAL PROTECTION

Classifications Meriting Close Scrutiny

—Sex

[P. 1879, add to text after n.51:]

Even when the negative ‘‘stereotype’’ which is evoked is that

of a stereotypical male, the Court has evaluated this as potential

gender discrimination. In J.E.B. v. Alabama ex rel. T.B.,38 the

Court addressed a paternity suit where men had been intentionally

excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be

more sympathetic to the defendant, the putative father. The Court

also determined that gender-based exclusion of jurors would undermine the litigants’ interest by tainting the proceedings, and in addition would harm the wrongfully excluded juror.

[P. 1881, add to n.58:]

See also Miller v. Albright, 523 U.S. 420 (1998) (opinion by Justice Stevens,

joined by Justice Rehnquist) (equal protection not violated where paternity of a child

of a citizen mother is established at birth, but child of citizen father must establish

paternity by age 18).

[P. 1885, add to text after n.76:]

In a 1996 case, the Court required that a State demonstrate

‘‘exceedingly persuasive justification’’ for gender discrimination.

When a female applicant challenged the exclusion of women from

AMENDMENT 14—RIGHTS GUARANTEED 139

39 United States v. Virginia, 518 U.S. 515 (1996). 40Miller v. Johnson, 515 U.S. 900 (1995) (drawing congressional district lines

in order to comply with § 5 of the Voting Rights Act as interpreted by the Department of Justice not a compelling governmental interest). 41 Id.; Shaw v. Reno, 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899

(1996) (creating an unconventionally-shaped majority-minority congressional district

in one portion of State in order to alleviate effect of fragmenting geographically compact minority population in another portion of State does not remedy a violation of

§ 2 of Voting Rights Act, and is thus not a compelling governmental interest).

the historically male-only Virginia Military Institute (VMI), the

State of Virginia defended the exclusion of females as essential to

the nature of training at the military school.39 The State argued

that the VMI program, which included rigorous physical training,

deprivation of personal privacy, and an ‘‘adversative model’’ that

featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women’s admission would require accommodation such as

different housing assignments and physical training programs, the

Court found that the reasons set forth by the State were not ‘‘exceedingly persuasive,’’ and thus the State did not meet its burden

of justification. The Court also rejected the argument that a parallel program established by the State at a private women’s college

served as an adequate substitute, finding that the program lacked

the military-style structure found at VMI, and that it did not equal

VMI in faculty, facilities, prestige, or alumni network.

Fundamental Interests: The Political Process

—Apportionment and Districting

[P. 1905, add to n.157 after citation for Summers v. Cenarrusa:]

But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for

further consideration the rejection of a deviation in excess of 10 percent intended

to preserve political subdivision boundaries).

[P. 1906, add to n.161:]

Hunt v. Cromartie, 526 U.S. 541 (1999).

[P. 1906, add to text following n.161:]

Even if racial gerrymandering is intended to benefit minority

voting populations, it is subject to strict scrutiny under the Equal

Protection Clause if racial considerations are the dominant and

controlling rationale in drawing district lines.40 Showing that a district’s ‘‘bizarre’’ shape departs from traditional districting principles

such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim,41 although three

Justices would not preclude the creation of ‘‘reasonably compact’’

140 AMENDMENT 14—RIGHTS GUARANTEED

42 Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined

by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts). 43Saenz v. Roe, 526 U.S. 489 (1999). ‘‘For the purposes of this case, we need

not identify the source of [the right to travel] in the text of the Constitution. The

right of ‘‘free ingress and regress to and from’’ neighboring States which was expressly mentioned in the text of the Articles of Confederation, may simply have been

‘‘conceived from the beginning to be a necessary concomitant of the stronger Union

the Constitution created.’’ Id. at 501 (citations omitted). See main text infra n.5 [p.

1912]. 44Paul v. Virginia, 8 U.S. (Wall) 168, 180 (1868) (‘‘without some provision . . .

removing from citizens of each State the disabilities of alienage in other States, and

giving them equality of privilege with citizens of those States, the Republic would

have constituted little more than a league of States; it would not have constituted

the Union which now exists’’). 45Saenz v. Roe, 526 U.S. 489, 502–03 (1999).

majority-minority districts in order to remedy past discrimination

or to comply with the requirements of the Voting Rights Act of

1965.42

The Right to Travel

[P. 1911, add new paragraph following heading:]

The doctrine of the ‘‘right to travel’’ actually encompasses three

separate rights, of which two have been notable for the uncertainty

of their textual support. The first is the right of a citizen to move

freely between States, a right venerable for its longevity, but still

lacking a clear doctrinal basis.43 The second, expressly addressed

by the first sentence of Article IV, provides a citizen of one State

who is temporarily visiting another State the ‘‘Privileges and Immunities’’ of a citizen of the latter State.44 The third is the right

of a new arrival to a State, who establishes citizenship in that

State, to enjoy the same rights and benefits as other state citizens.

This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a State

for a specified period of time before taking advantage of the benefits of that State’s citizenship.

—Durational Residency Requirements

[P. 1911, add new paragraph to text following heading:]

Challenges to durational residency requirements have traditionally been made under the Equal Protection Clause of the Fourteenth Amendment. In 1999, however, a majority of the Supreme

Court approved a doctrinal shift, so that state laws which distinguished between their own citizens based on how long they had

been in the State would be evaluated instead under the Privileges

or Immunities Clause of the Fourteenth Amendment.45 The Court

AMENDMENT 14—RIGHTS GUARANTEED 141

46Saenz v. Roe, 526 U.S. 489 (1999). 47Saenz v. Roe, 526 U.S. 489, 505 (1999). 48 517 U.S. 620 (1996). 49 Evans v. Romer, 854 P. 2d 1270 (Colo. 1993).

did not, however, question the continuing efficacy of the earlier

cases.

[P. 1913, add to text following sentence containing n.10:]

The Privileges or Immunities Clause of the Fourteenth Amendment was the basis for striking down a California law which limited welfare benefits for California citizens who had resided in the

State for less than a year to the level of benefits which they would

have received in the State of their prior residence.46

[P. 1913, add to text following n.13:]

More recently, the Court has attempted to clarify these cases

by distinguishing situations where a state citizen is likely to ‘‘consume’’ benefits within a State’s borders (such as the provision or

welfare) from those where citizens of other States are likely to establish residency just long enough to acquire some portable benefit,

and then return to their original domicile to enjoy them (such as

obtaining a divorce decree or paying in-state tuition rate for a college education).47

[P. 1916, add new heading and text following n.24:]

Sexual Orientation

In Romer v. Evans,48 the Supreme Court struck down a state

constitutional amendment which both overturned local ordinances

prohibiting discrimination against homosexuals, lesbians or

bisexuals, and prohibited any state or local governmental action to

either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in

the political process.49 The Court also rejected the application of

the heightened standard reserved for suspect classes, and sought

only to determine whether the legislative classification had a rational relation to a legitimate end.

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: ‘‘[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm

a politically unpopular group cannot constitute a legitimate governVerDate 11-SEP-98 16:28 Feb 02, 2001 Jkt 000000 PO 00000 Frm 00142 Fmt 8222 Sfmt 8222 C:\CONSUP98\69557 CRS1 PsN: CRS1
142 AMENDMENT 14—RIGHTS GUARANTEED

50 517 U.S. at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528,

534 (1973). 51 519 U.S. 102 (1996). 52 519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971). 53Mayer v. Chicago, 404 U.S. 189 (1971). 54 519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)).

mental interest.’’ 50 The Court then rejected arguments that the

amendment protected the freedom of association rights of landlords

and employers, or that it would conserve resources in fighting discrimination against other groups. The Court found that the scope

of the law was unnecessarily broad to achieve these stated purposes, and that no other legitimate rationale existed for such a restriction.

Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection

—Criminal Procedure

[P. 1919, add to n.40 after citation to Penson v. Ohio:]

But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding California law providing that appellate counsel may limit his or her role to filing a brief summarizing

the case and record and requesting the court to examine record for non-frivolous

issues).

—Access to Courts

[P. 1922, add paragraph to text following n.56:]

The continuing vitality of Griffin v. Illinois, however, is seen

in the case of M.L.B. v. S.L.J.,51 where the Court considered

whether a State seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for

pursuing an appeal. Unlike in Boddie, the State, Mississippi, had

afforded the plaintiff a trial on the merits, and thus the ‘‘monopolization’’ of the avenues of relief alleged in Boddie was not at issue.

As in Boddie, however, the Court focused on the substantive due

process implications of the state limiting ‘‘[c]hoices about marriage,

family life, and the upbringing of children,’’ 52 while also referencing cases establishing a right of equal access to criminal appellate

review. Noting that even a petty offender had a right to have the

State pay for the transcript needed for an effective appeal,53 and

that the forced dissolution of parental rights was ‘‘more substantial

than mere loss of money,’’ 54 the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.

AMENDMENT 14—RIGHTS GUARANTEED 143

55 120 S. Ct. 1740, 1754–59 (2000). 56Pub. L. No. 103–322, § 40302, 108 Stat. 1941, 42 U.S.C. § 13981. 57 120 S. Ct. at 1756 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the

proposition that the Amendment ‘‘erects no shield against merely private conduct,

however discriminatory or wrongful’’). 58This holding may have broader significance for federal civil rights law. For

instance, 42 U.S.C. § 1985(3) (a civil statute paralleling the criminal statute held unconstitutional in United States v. Harris) lacks a ‘‘color of law’’ requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651

(1951), to avoid constitutional problems, it was read out again in Griffin v.

Breckenridge, 403 U.S. 88, 97 (1971) (while it might be ‘‘difficult to conceive of what

might constitute a deprivation of the equal protection of the laws by private persons

. . . there is nothing inherent in the phrase that requires the action working the deprivation to come from the State’’). What the unanimous Court held in Griffin was

that an ‘‘intent to deprive of equal protection, or equal privileges and immunities,

means that there must be some racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action.’’ Id. at 102. As so construed,

the statute was held constitutional as applied in the complaint before the Court on

the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’ powers under § 5 of the Fourteenth Amendment.

Id. at 107.

The lower courts have been quite divided with respect to what constitutes a

non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under § 1985(3). See, e.g., Action

v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190

(7th Cir. 1972); Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d

Cir. 1978) (en banc), rev’d, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th

Cir. 1982) (en banc). The Court’s decision in Morrison, however, appears to preclude

the use of § 1985(3) in relation to Fourteenth Amendment rights absent some state

action.

ENFORCEMENT

—State Action

[P. 1933, delete last full paragraph of section, and substitute the following:]

The Court, however, ultimately rejected this expansion of the

powers of Congress in United States v. Morrison.55 In Morrison, the

Court invalidated a provision of the Violence Against Women Act 56

that established a federal civil remedy for victims of gender-motivated violence. The case involved a university student who brought

a civil action against other students who allegedly raped her. The

argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that

the federal remedy would offset and deter this bias. The Court first

reaffirmed the state action requirement for legislation passed

under the Fourteenth Amendment,57 dismissing the dicta in Guest,

and reaffirming the precedents of the Civil Rights Cases and

United States v. Harris. The Court also rejected the assertion that

the legislation was ‘‘corrective’’ of bias in the courts, as the suits

are not directed at the State or any state actor, but rather at the

individuals committing the criminal acts.58

144 AMENDMENT 14—RIGHTS GUARANTEED

59 521 U.S. 507 (1997). 60Pub. L. No. 103–141, 107 Stat. 1488, 42 U.S.C. § 2000bb et. seq. 61 494 U.S. 872 (1990). 62 521 U.S. at 533. 63 521 U.S. at 532–33. The Court found that the Religious Freedom Restoration

Act was ‘‘so far out of proportion to a supposed remedial or preventive object that

it cannot be understood as responsive to, or designed to prevent, unconstitutional

behavior.’’ Id. 64Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers may

not be used to abrogate a State’s Eleventh Amendment immunity, but Fitzpatrick

v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh

Amendment immunity in exercise of Fourteenth Amendment enforcement power, remains good law). See discussion pp. 1533–37. 65 527 U.S. 627 (1999).

—Congressional Definition of Fourteenth Amendment Rights

[P. 1936, add to text following n.127:]

The case of City of Boerne v. Flores,59 however, illustrates that

the Court will not always defer to Congress’ determination as to

what legislation is appropriate to ‘‘enforce’’ the provisions of the

Fourteenth Amendment. In Flores, the Court held that the Religious Freedom Restoration Act,60 which expressly overturned the

Court’s narrowing of religious protections under Employment Division v. Smith,61 exceeded congressional power under section 5 of

the Fourteenth Amendment. Although the Court allowed that Congress’ power to legislate to deter or remedy constitutional violations

may include prohibitions on conduct that is not itself unconstitutional, the Court also held that there must be ‘‘a congruence and

proportionality’’ between the means adopted and the injury to be

remedied.62 Unlike the pervasive suppression of the AfricanAmerican vote in the South which led to the passage of the Voting

Rights Act, there was no similar history of religious persecution

constituting an ‘‘egregious predicate’’ for the far-reaching provision

of the Religious Freedom Restoration Act. Also, unlike the Voting

Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination dates.63

A reinvigorated Eleventh Amendment jurisprudence has led to

a spate of decisions applying the principles the Court set forth in

Boerne, as litigants precluded from arguing that a State’s sovereign

immunity has been abrogated under Article I congressional powers 64 seek alternative legislative authority in section 5. For instance, in Florida Prepaid Postsecondary Education Expense Board

v. College Savings Bank,65 a bank which had patented a financial

method designed to guarantee investors sufficient funds to cover

the costs of college tuition sued the State of Florida for administering a similar program, arguing that the State’s sovereign immunity

had been abrogated by Congress in exercise of its Fourteenth

AMENDMENT 14—RIGHTS GUARANTEED 145

66 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (Trademark Remedy Clarification

Act amendment to Lanham Act subjecting States to suits for false advertising is not

a valid exercise of Fourteenth Amendment power; neither the right to be free from

a business competitor’s false advertising nor a more generalized right to be secure

in one’s business interests qualifies as a ‘‘property’’ right protected by the Due Process Clause).

67 120 S. Ct. 631 (2000). Again, the issue of the Congress’ power under § 5 of

the Fourteenth Amendment arose because sovereign immunity prevents private actions against States from being authorized under Article I powers such as the Commerce Clause.

68See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis test

to uphold mandatory retirement age of 70 for state judges).

69 120 S. Ct. at 647, quoting City of Boerne, 521 U.S. at 532.

Amendment enforcement power. The Court, however, held that application of the federal patent law to the States was not properly

tailored to remedy or prevent due process violations. The Court

noted that Congress had identified no pattern of patent infringement by the States, nor a systematic denial of state remedy for

such violations such as would constitute a deprivation of property

without due process.66

A similar result was reached regarding the application of the

Age Discrimination in Employment Act to state agencies in Kimel

v. Florida Board of Regents.67 In determining that the Act did not

meet the ‘‘congruence and proportionality’’ test, the Court focused

not just on whether state agencies had engaged in age discrimination, but on whether States had engaged in unconstitutional age

discrimination. This was a particularly difficult test to meet, as the

Court has generally rejected constitutional challenges to age discrimination by States, finding that there is a rational basis for

States to use age as a proxy for other qualities, abilities and characteristics.68 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on

age, the Court found that the ADEA, as applied to the States, was

‘‘so out of proportion to a supposed remedial or preventive object

that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.’’ 69

147

1 Rice v. Cayetano, 120 S. Ct. 1044, 1054 (2000).

2Guinn v. United States, 238 U.S. 347 (1915) (invalidating Oklahoma exception

to literacy requirement for any ‘‘lineal descendants’’ of persons entitled to vote in

1866).

3 Rice v. Cayetano, 120 S. Ct. 1044, 1055 (2000).

FIFTEENTH AMENDMENT

ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

Adoption and Judicial Enforcement

—The Judicial View of the Amendment

[P. 1940, add new paragraph to text at end of section:]

Although ‘‘the immediate concern of the Amendment was to

guarantee to the emancipated slaves the right to vote,’’ the Amendment ‘‘is cast in fundamental terms’’ that transcend that immediate

objective, and ‘‘grants protection to all persons, not just members

of a particular race.’’ 1 Moreover, the Court has construed ‘‘race’’

broadly to comprehend classifications based on ancestry as well as

those based on race.2 ‘‘Ancestry can be a proxy for race,’’ the Court

explained recently, finding such a proxy in Hawaii’s limitation of

the right to vote in a statewide election for an office responsible for

administering a trust for the benefit of persons who can trace their

ancestry to Hawaiian inhabitants of 1778.3

Congressional Enforcement

—Federal Remedial Legislation

[P. 1949, add to n.59:]

In Lopez v. Monterey County, 525 U.S. 266 (1999), the Court reiterated its prior

holdings that Congress may exercise its enforcement power based on discriminatory

effects, and without any finding of discriminatory intent.

149

1 409 U.S. 109 (1972).

2 517 U.S. 484 (1996) (statutory prohibition against advertisements that provide

the public with accurate information about retail prices of alcoholic beverages is not

shielded from constitutional scrutiny by the Twenty-first Amendment).

3 517 U.S. at 516 (quoting Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691, 712

(1984)).

4 517 U.S. at 515.

TWENTY-FIRST AMENDMENT

Scope of Regulatory Power Conferred upon the States

—Effect of Section 2 upon Other Constitutional Provisions

[P. 1982, delete sentence containing n.31 and substitute the following:]

The Court departed from this line of reasoning in California v.

LaRue.1

[P. 1983, add to text at end of section:]

In 44 Liquormart, Inc. v. Rhode Island,2 the Court disavowed

LaRue and Bellanca, and reaffirmed that, ‘‘although the Twentyfirst Amendment limits the effect of the dormant Commerce Clause

on a state’s regulatory power over the delivery or use of intoxicating beverages within its borders, ‘the Amendment does not license

the States to ignore their obligations under other provisions of the

Constitution,’ ’’ 3 and therefore does not afford a basis for state legislation infringing freedom of expression protected by the First

Amendment. There is no reason, the Court asserted, for distinguishing between freedom of expression and the other constitutional guarantees (e.g., those protected by the Establishment and

Equal Protection Clauses) held to be insulated from state impairment pursuant to powers conferred by the Twenty-first Amendment. The Court hastened to add by way of dictum that states retain adequate police powers to regulate ‘‘grossly sexual exhibitions

in premises licensed to serve alcoholic beverages.’’ ‘‘Entirely apart

from the Twenty-first Amendment, the State has ample power to

prohibit the sale of alcoholic beverages in inappropriate locations.’’ 4

151

ACTS OF CONGRESS HELD UNCONSTITUTIONAL

IN WHOLE OR IN PART BY THE SUPREME

COURT OF THE UNITED STATES

128. Act of Aug. 29, 1935, ch. 814 § 5(e), 49 Stat. 982, 27 U.S.C. § 205(e).

The prohibition in section 5(e)(2) of the Federal Alcohol Administration Act of 1935 on the display of alcohol content on beer labels

is inconsistent with the protections afforded to commercial speech by

the First Amendment. The government’s interest in curbing strength

wars among brewers is substantial, but, given the ‘‘overall irrationality’’ of the regulatory scheme, the labeling prohibition does not directly and materially advance that interest.

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

Justices concurring: Thomas, O’Connor, Scalia, Kennedy, Souter, Ginsburg,

Breyer, and Chief Justice Rehnquist.

Justice concurring specially: Stevens.

129. Act of Aug. 16, 1954, ch. 736, 68A Stat. 521, 26 U.S.C. § 4371(1).

A federal tax on insurance premiums paid to foreign insurers not

subject to the federal income tax violates the Export Clause, Art. I,

§ 9, cl. 5, as applied to casualty insurance for losses incurred during

the shipment of goods from locations within the United States to purchasers abroad.

United States v. IBM Corp., 517 U.S. 843 (1996).

Justices concurring: Thomas, O’Connor, Scalia, Souter, Breyer, and Chief Justice Rehnquist.

Justices dissenting: Kennedy, Ginsburg.

130. Act of May 11, 1976 (Pub. L. No. 94–283, § 112(2)), 90 Stat. 489; 2

U.S.C. § 441a(d)(3).

The Party Expenditure Provision of the Federal Election Campaign Act, which limits expenditures by a political party ‘‘in connection with the general election campaign of a [congressional] candidate,’’ violates the First Amendment when applied to expenditures

that a political party makes independently, without coordination with

the candidate.

Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996).

Justices concurring: Breyer, O’Connor and Souter.

Justices concurring in part and dissenting in part: Kennedy, Scalia, Thomas,

and Chief Justice Rehnquist.

Justices dissenting: Stevens and Ginsburg.

131. Act of Oct. 17, 1988 (Pub. L. No. 100–497, § 11(d)(7)), 102 Stat. 2472,

25 U.S.C. § 2710(d)(7).

A provision of the Indian Gaming Regulatory Act authorizing an

Indian tribe to sue a State in federal court to compel performance of

a duty to negotiate in good faith toward the formation of a compact

152 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

violates the Eleventh Amendment. In exercise of its powers under Article I, Congress may not abrogate States’ Eleventh Amendment immunity from suit in federal court. Pennsylvania v. Union Gas Co., 491

U.S. 1 (1989), is overruled.

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

Justices dissenting: Stevens, Souter, Ginsburg and Breyer.

132. Act of Nov. 30, 1989 (Pub. L. No. 101–194, § 601), 103 Stat. 1760, 5

U.S.C. app. § 501.

Section 501(b) of the Ethics in Government Act, as amended in

1989 to prohibit Members of Congress and federal employees from accepting honoraria, violates the First Amendment as applied to Executive Branch employees below grade GS–16. The ban is limited to expressive activity and does not include other outside income, and the

‘‘speculative benefits’’ of the ban do not justify its ‘‘crudely crafted

burden’’ on expression.

United States v. National Treasury Employees Union, 513 U.S. 454 (1995).

Justices concurring: Stevens, Kennedy, Souter, Ginsburg, and Breyer.

Justice concurring in part and dissenting in part: O’Connor.

Justices dissenting: Chief Justice Rehnquist, and Scalia and Thomas.

133. Act of Nov. 29, 1990 (Pub. L. No. 101–647, § 1702), 104 Stat. 4844, 18

U.S.C. § 922q.

The Gun Free School Zones Act of 1990, which makes it a criminal offense to knowingly possess a firearm within a school zone, exceeds congressional power under the Commerce Clause. It is ‘‘a criminal statute that by its terms has nothing to do with ‘commerce’ or any

sort of economic enterprise.’’ Possession of a gun at or near a school

‘‘is in no sense an economic activity that might, through repetition

elsewhere, substantially affect any sort of interstate commerce.’’

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

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

Justices dissenting: Stevens, Souter, Breyer, and Ginsburg.

134. Act of Dec. 19, 1991 (Pub. L. No. 102–242 § 476), 105 Stat. 2387, 15

U.S.C. § 78aa–1.

Section 27A(b) of the Securities Exchange Act of 1934, as added

in 1991, requiring reinstatement of any section 10(b) actions that

were dismissed as time barred subsequent to a 1991 Supreme Court

decision, violates the Constitution’s separation of powers to the extent

that it requires federal courts to reopen final judgments in private

civil actions. The provision violates a fundamental principle of Article

III that the federal judicial power comprehends the power to render

dispositive judgments.

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 153

Justices concurring: Scalia, O’Connor, Kennedy, Souter, and Thomas, and

Chief Justice Rehnquist.

Justice concurring specially: Breyer.

Justices dissenting: Stevens and Ginsburg.

135. Act of Oct. 5, 1992 (Pub. L. No. 102–385, § § 10(b) and 10(c)), 106 Stat.

1487, 1503; 47 U.S.C. § 532(j) and § 531 note, respectively.

Section 10(b) of the Cable Television Consumer Protection and

Competition Act of 1992, which requires cable operators to segregate

and block indecent programming on leased access channels if they do

not prohibit it, violates the First Amendment. Section 10(c) of the Act,

which permits a cable operator to prevent transmission of ‘‘sexually

explicit’’ programming on public access channels, also violates the

First Amendment.

Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996).

Justices concurring: Breyer, Stevens, O’Connor (§ 10(b) only), Kennedy, Souter,

and Ginsburg.

Justices dissenting: Thomas, Scalia, O’Connor (§ 10(c) only), and Chief Justice

Rehnquist.

136. Act of Oct. 30, 1984, (Pub. L. No. 98–608, § 1(4)), 98 Stat. 3173, 25

U.S.C. § 2206.

Section 207 of the Indian Land Consolidation Act, as amended in

1984, effects an unconstitutional taking of property without compensation by restricting a property owner’s right to pass on property

to his heirs. The amended section, like an earlier version held unconstitutional in Hodel v. Irving (1987), provides that certain small interests in Indian land will escheat to the tribe upon death of the owner.

None of the changes made in 1984 cures the constitutional defect.

Babbitt v. Youpee, 519 U.S. 234 (1997).

Justices concurring: Ginsburg, O’Connor, Scalia, Kennedy, Souter, Thomas,

Breyer, and Chief Justice Rehnquist.

Justice dissenting: Stevens.

137. Act of Nov. 16, 1993 (Pub. L. No. 103–141), 107 Stat. 1488, 42 U.S.C.

§ § 2000bb to 2000bb–4.

The Religious Freedom Restoration Act, which directed use of the

compelling interest test to determine the validity of laws of general

applicability that substantially burden the free exercise of religion,

exceeds congressional power under section 5 of the Fourteenth

Amendment. Congress’ power under section 5 to ‘‘enforce’’ the Fourteenth Amendment by ‘‘appropriate legislation’’ does not extend to defining the substance of the Amendment’s restrictions. This RFRA appears to do. RFRA ‘‘is so far out of proportion to a supposed remedial

or preventive object that it cannot be understood as responsive to, or

designed to prevent, unconstitutional behavior.’’

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

Justices concurring: Kennedy, Stevens, Thomas, Ginsburg, and Chief Justice

Rehnquist.

154 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

Justice concurring specially: Scalia.

Justices dissenting: O’Connor, Breyer; Souter.

138. Act of Feb. 8, 1996, 110 Stat. 56, 133–34 (Pub. L. No. 104–104, title

V, § 502), 47 U.S.C. § § 223(a), 223(d).

Two provisions of the Communications Decency Act of 1996—one

that prohibits knowing transmission on the Internet of obscene or indecent messages to any recipient under 18 years of age, and the other

that prohibits the knowing sending or displaying of patently offensive

messages in a manner that is available to anyone under 18 years of

age—violate the First Amendment.

Reno v. ACLU, 521 U.S. 844 (1997).

Justices concurring: Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, and

Breyer.

Justices concurring in part and dissenting in part: O’Connor and Chief Justice

Rehnquist.

139. Act of Nov. 30, 1993 (Pub. L. No. 103–159), 107 Stat. 1536.

Interim provisions of the Brady Handgun Violence Prevention Act

that require state and local law enforcement officers to conduct background checks on prospective handgun purchasers are inconsistent

with the Constitution’s allocation of power between Federal and State

governments. In New York v. United States, 505 U.S. 144 (1992), the

Court held that Congress may not compel states to enact or enforce

a federal regulatory program, and ‘‘Congress cannot circumvent that

prohibition by conscripting the State’s officers directly.’’

Printz v. United States, 521 U.S. 898 (1997).

Justices concurring: Scalia, O’Connor, Kennedy, Thomas, and Chief Justice

Rehnquist.

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

140. Act of Nov. 17, 1986 (Pub. L. No. 99–662, title IV, § 1402(a)), 26 U.S.C.

§ § 4461, 4462.

The Harbor Maintenance Tax (HMT) violates the Export Clause

of the Constitution, Art. I, § 9, cl. 5 to the extent that the tax applies

to goods loaded for export at United States ports. The HMT, which

requires shippers to pay a uniform charge of 0.125 percent of cargo

value on commercial cargo shipped through the Nation’s ports, is an

impermissible tax rather than a permissible user fee. The value of export cargo does not correspond reliably with federal harbor services

used by exporters, and the tax does not, therefore, represent compensation for services rendered.

United States v. United States Shoe Corp., 523 U.S. 360 (1998).

141. Act of Oct. 19, 1976 (Pub. L. No. 94–553, § 101(c)), 17 U.S.C. § 504(c).

Section 504(c) of the Copyright Act, which authorizes a copyright

owner to recover statutory damages, in lieu of actual damages, ‘‘in a

sum of not less than $500 or more than $20,000 as the court considers

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 155

just,’’ does not grant the right to a jury trial on the amount of statutory damages. The Seventh Amendment, however, requires a jury determination of the amount of statutory damages.

Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998).

142. Act of Oct. 24, 1992, Title XIX, 106 Stat. 3037 (Pub. L. No. 102–486),

26 U.S.C. § § 9701–9722.

The Coal Industry Retiree Health Benefit Act of 1992 is unconstitutional as applied to the petitioner Eastern Enterprises. Pursuant to

the Act, the Social Security Commissioner imposed liability on Eastern for funding health care benefits of retirees from the coal industry

who had worked for Eastern prior to 1966. Eastern had transferred

its coal-related business to a subsidiary in 1965. Four Justices viewed

the imposition of liability on Eastern as a violation of the Takings

Clause, and one Justice viewed it as a violation of substantive due

process.

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998).

Justices concurring: O’Connor, Scalia, Thomas, and Chief Justice Rehnquist.

Justice concurring specially: Kennedy.

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

143. Act of April 9, 1996, 110 Stat. 1200 (Pub. L. No. 104–130), 2 U.S.C.

§ § 691 et seq.

The Line Item Veto Act, which gives the President the authority

to ‘‘cancel in whole’’ three types of provisions that have been signed

into law, violates the Presentment Clause of Article I, section 7. In

effect, the law grants to the President ‘‘the unilateral power to change

the text of duly enacted statutes.’’ This Line Item Veto Act authority

differs in important respects from the President’s constitutional authority to ‘‘return’’ (veto) legislation: the statutory cancellation occurs

after rather than before a bill becomes law, and can apply to a part

of a bill as well as the entire bill.

Clinton v. City of New York, 524 U.S. 417 (1998).

Justices concurring: Stevens, Kennedy, Souter, Thomas, Ginsburg, and Chief

Justice Rehnquist.

Justices dissenting: Scalia, O’Connor, and Breyer.

144. Act of June 19, 1934, ch. 652, 48 Stat. 1088, § 316, 18 U.S.C. § 1304.

Section 316 of the Communications Act of 1934, which prohibits

radio and television broadcasters from carrying advertisements for

privately operated casino gambling regardless of the station’s or casino’s location, violates the First Amendment’s protections for commercial speech as applied to prohibit advertising of private casino gambling broadcast by stations located within a state where such gambling is illegal.

Greater New Orleans Broadcasting Ass’n v. United States, 527 U.S. 173 (1999).

Justices concurring: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg,

Breyer, and Chief Justice Rehnquist.

156 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

Justice concurring specially: Thomas.

145. Act of April 8, 1974, Pub. L. No. 93–259, § § 6(a)(6), 6(d)(1), 29 U.S.C.

§ § 203(x), 216(b).

Fair Labor Standards Amendments of 1974 subjecting nonconsenting states to suits for damages brought by employees in state

courts violates the principle of sovereign immunity implicit in the constitutional scheme. Congress lacks power under Article I to subject

non-consenting states to suits for damages in state courts.

Alden v. Maine, 527 U.S. 706 (1999).

Justices concurring: Kennedy, O’Connor, Scalia, Thomas, and Chief Justice

Rehnquist.

Justices dissenting: Souter, Stevens, Ginsburg, and Breyer.

146. Act of Oct. 27, 1992, Pub. L. No. 102–542, 15 U.S.C. § 1122.

The Trademark Remedy Clarification Act, which provided that

states shall not be immune from suit under the Trademark Act of

1946 (Lanham Act) ‘‘under the eleventh amendment . . . or under any

other doctrine of sovereign immunity,’’ did not validly abrogate state

sovereign immunity. Congress lacks power to do so in exercise of Article I powers, and the TRCA cannot be justified as an exercise of

power under section 5 of the Fourteenth Amendment. The right to be

free from a business competitor’s false advertising is not a ‘‘property

right’’ protected by the Due Process Clause.

College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999).

Justices concurring: Scalia, O’Connor, Kennedy, Thomas, and Chief Justice

Rehnquist.

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

147. Act of Oct. 28, 1992, 106 Stat. 4230, Pub. L. No. 102–560, 29 U.S.C.

§ 296.

The Patent and Plant Variety Remedy Clarification Act, which

amended the patent laws to expressly abrogate states’ sovereign immunity from patent infringement suits is invalid. Congress lacks

power to abrogate state immunity in exercise of Article I powers, and

the Patent Remedy Clarification Act cannot be justified as an exercise

of power under section 5 of the Fourteenth Amendment. Section 5

power is remedial, yet the legislative record reveals no identified pattern of patent infringement by states and the Act’s provisions are ‘‘out

of proportion to a supposed remedial or preventive object.’’

Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,

527 U.S. 627 (1999).

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

ACTS OF CONGRESS HELD UNCONSTITUTIONAL 157

148. Act of April 8, 1974 (Pub. L. No. 93–259, § § 6(d)(1), 28(a)(2)), 88 Stat.

61, 74; 29 U.S.C. § § 216(b), 630(b).

The Fair Labor Standards Act Amendments of 1974, amending

the Age Discrimination in Employment Act to subject states to damages actions in federal courts, exceeds congressional power under section 5 of the Fourteenth Amendment. Age is not a suspect classification under the Equal Protection Clause, and the ADEA is ‘‘so out of

proportion to a remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.’’

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000).

Justices concurring: O’Connor, Scalia, Kennedy, Thomas, and Chief Justice

Rehnquist.

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

149. Act of September 13, 1994 (Pub. L. No. 103–322, § 40302), 108 Stat.

1941, 42 U.S.C. § 13981.

A provision of the Violence Against Women Act that creates a

federal civil remedy for victims of gender-motivated violence exceeds

congressional power under the Commerce Clause and under section

5 of the Fourteenth Amendment. The commerce power does not authorize Congress to regulate ‘‘noneconomic violent criminal conduct

based solely on that conduct’s aggregate effect on interstate commerce.’’ The Fourteenth Amendment prohibits only state action, and

affords no protection against purely private conduct. Section 13981,

however, is not aimed at the conduct of state officials, but is aimed

at private conduct.

United States v. Morrison, 120 S. Ct. 1740 (2000).

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

Justices dissenting: Souter, Breyer, Stevens, and Ginsburg.

150. Act of Feb. 8, 1996 (Pub. L. No. 104–104, § 505), 110 Stat. 136, 47

U.S.C. § 561.

Section 505 of the Telecommunications Act of 1996, which required cable TV operators that offer channels primarily devoted to

sexually oriented programming to prevent signal bleed either by fully

scrambling those channels or by limiting their transmission to designated hours when children are less likely to be watching, violates

the First Amendment. The provision is content-based, and therefore

can only be upheld if narrowly tailored to promote a compelling governmental interest. The measure is not narrowly tailored, since the

Government did not establish that the less restrictive alternative

found in section 504 of the Act—that of scrambling a channel at a

subscriber’s request—would be ineffective.

United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000).

158 ACTS OF CONGRESS HELD UNCONSTITUTIONAL

Justices concurring: Kennedy, Stevens, Souter, Thomas, and Ginsburg.

Justices dissenting: Scalia, Breyer, O’Connor, and Chief Justice Rehnquist.

151. Act of June 19, 1968 (Pub. L. No. 90–351, § 701(a)), 82 Stat. 210, 18

U.S.C. § 3501.

A section of the Omnibus Crime Control and Safe Streets Act of

1968 purporting to reinstate the voluntariness principle that had governed the constitutionality of custodial interrogations prior to the

Court’s decision in Miranda v. Arizona, 384 U.S. 486 (1966), is an invalid attempt by Congress to redefine a constitutional protection defined by the Court. The warnings to suspects required by Miranda

are constitution-based rules. While the Miranda Court invited a legislative rule that would be ‘‘at least as effective’’ in protecting a suspect’s right to remain silent, section 3501 is not an adequate substitute.

Dickerson v. United States, 120 S. Ct. 2326 (2000).

Justices concurring: Chief Justice Rehnquist, and Stevens, O’Connor, Kennedy, Souter, and Ginsburg.

Justices dissenting: Scalia and Thomas.

159

STATE ACTS HELD UNCONSTITUTIONAL

1090. Edenfield v. Fane, 507 U.S. 761 (1993).

A rule of the Florida Board of Accountancy banning ‘‘direct, inperson, uninvited solicitation’’ of business by certified public accountants is inconsistent with the free speech guarantees of the First

Amendment.

Justices concurring: Kennedy, White, Blackmun, Stevens, Scalia, Souter,

Thomas, and Chief Justice Rehnquist.

Justice dissenting: O’Connor.

1091. Oklahoma Tax Comm’n v. Sac and Fox Nation, 508 U.S. 114 (1993).

Oklahoma may not impose income taxes or motor vehicle taxes

on members of the Sac and Fox Nation who live in ‘‘Indian country,’’

whether the land is within reservation boundaries, on allotted lands,

or in dependent communities. Such tax jurisdiction is considered to be

preempted unless Congress has expressly provided to the contrary.

1092. Department of Treasury v. Fabe, 508 U.S. 491 (1993).

An Ohio statute setting priority of claims against insolvent insurance companies is preempted by the federal priority statute, 31

U.S.C. § 3713, which accords first priority to the United States, to the

extent that the Ohio law protects the claims of creditors who are not

policyholders. Insofar as it protects the claims of policyholders, the

law is saved from preemption by section 2(b) of the McCarran-Ferguson Act.

Justices concurring: Blackmun, White, Stevens, O’Connor, and Chief Justice

Rehnquist.

Justices dissenting: Kennedy, Scalia, Souter, Thomas.

1093. Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511 U.S.

93 (1994).

Oregon’s imposition of a surcharge on in-state disposal of solid

waste generated in other states—a tax three times greater than the

fee charged for disposal of waste that was generated in Oregon—constitutes an invalid burden on interstate commerce. The tax is facially

discriminatory against interstate commerce, is not a valid compensatory tax, and is not justified by any other legitimate state interest.

Justices concurring: Thomas, Stevens, O’Connor, Scalia, Kennedy, Souter,

Ginsburg.

Justices dissenting: Chief Justice Rehnquist, and Blackmun.

1094. Associated Industries v. Lohman, 511 U.S. 641 (1994).

Missouri’s uniform, statewide use tax constitutes an invalid discrimination against interstate commerce in those counties in which

the use tax is greater than the sales tax imposed as a local option,

even though the overall statewide effect of the use tax places a lighter

160 STATE ACTS HELD UNCONSTITUTIONAL

aggregate tax burden on interstate commerce than on intrastate commerce.

1095. Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994).

Montana’s tax on the possession of illegal drugs, to be ‘‘collected

only after any state or federal fines or forfeitures have been satisfied,’’

constitutes punishment, and violates the prohibition, derived from the

Double Jeopardy Clause, against successive punishments for the same

offense.

Justices concurring: Stevens, Blackmun, Kennedy, Souter, and Ginsburg.

Justices dissenting: Chief Justice Rehnquist, and O’Connor, Scalia, and Thomas.

1096. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994).

A Massachusetts milk pricing order, imposing an assessment on

all milk sold by dealers to Massachusetts retailers, is an unconstitutional discrimination against interstate commerce because the entire

assessment is then distributed to Massachusetts dairy farmers in

spite of the fact that about two-thirds of the assessed milk is produced out of state. The discrimination imposed by the pricing order

is not justified by a valid factor unrelated to economic protectionism.

Justices concurring: Stevens, O’Connor, Kennedy, Souter, and Ginsburg.

Justices concurring specially: Scalia and Thomas.

Justices dissenting: Chief Justice Rehnquist and Blackmun.

1097. Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).

A provision of the Oregon Constitution, prohibiting judicial review of the amount of punitive damages awarded by a jury unless the

court can affirmatively say there is no evidence to support the verdict,

is invalid under the Due Process Clause of the Fourteenth Amendment. Judicial review of the amount awarded was one of the few procedural safeguards available at common law, yet Oregon has removed

that safeguard without providing any substitute procedure, and with

no indication that the danger of arbitrary awards has subsided.

Justices concurring: Stevens, Blackmun, O’Connor, Scalia, Kennedy, Souter,

and Thomas.

Justices dissenting: Ginsburg and Chief Justice Rehnquist.

1098. Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994).

A New York State law creating a special school district for an incorporated village composed exclusively of members of one small religious sect violates the Establishment Clause.

Justices concurring: Souter, Blackmun, Stevens, O’Connor, and Ginsburg.

Justice concurring specially: Kennedy.

Justices dissenting: Scalia, Thomas, and Chief Justice Rehnquist.

1099. American Airlines v. Wolens, 513 U.S. 219 (1995).

The Illinois Consumer Fraud Act, to the extent that it authorizes

actions in state court challenging as ‘‘unfair or deceptive’’ marketing

STATE ACTS HELD UNCONSTITUTIONAL 161

practices an airline company’s changes in its frequent flyer program,

is preempted by the Airline Deregulation Act, which prohibits states

from ‘‘enact[ing] or enforc[ing] any law . . . relating to [air carrier]

rates, routes, or services.’’

Justices concurring: Ginsburg, Kennedy, Souter, Breyer, and Chief Justice

Rehnquist.

Justices concurring specially: O’Connor, Thomas.

Justice dissenting: Stevens.

1100. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995).

Ohio’s prohibition on the distribution of anonymous campaign literature abridges the freedom of speech. The law, aimed at speech designed to influence voters in an election, is a limitation on political

expression subject to exacting scrutiny. Neither of the interests asserted by Ohio justifies the limitation.

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg, and

Breyer.

Justice concurring specially: Thomas.

Justices dissenting: Scalia, and Chief Justice Rehnquist.

1101. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

An amendment to the Arkansas Constitution denying ballot access to congressional candidates who have already served three terms

in the House of Representatives or two terms in the Senate is invalid

as conflicting with the qualifications for office set forth in Article I of

the U.S. Constitution, (specifying age, duration of U.S. citizenship,

and state inhabitancy requirements). Article I sets the exclusive

qualifications for a United States Representative or Senator.

Justices concurring: Stevens Kennedy, Souter, Ginsburg, and Breyer.

Justices dissenting: Thomas, O’Connor, Scalia, and Chief Justice Rehnquist.

1102. Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995).

Oklahoma may not impose its motor fuels excise tax upon fuel

sold by Chickasaw Nation retail stores on tribal trust land. The legal

incidence of the motor fuels tax fall—on the retailer, located within

Indian country, and the petitioner did not properly raise the issue of

whether Congress had authorized such taxation in the HaydenCartwright Act.

1103. Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995).

Application of Massachusetts’ public accommodations law to require the private organizers of a St. Patrick’s Day parade to allow

participation in the parade by a gay and lesbian group wishing to proclaim its members’ gay and lesbian identity violates the First Amendment because it compels parade organizers to include in the parade

a message they wish to exclude.

162 STATE ACTS HELD UNCONSTITUTIONAL

1104. Miller v. Johnson, 515 U.S. 900 (1995).

Georgia’s congressional districting plan violates the Equal Protection Clause. The district court’s finding that race was the predominant factor in drawing the boundaries of the Eleventh District was

not clearly erroneous. The State did not meet its burden under strict

scrutiny review to demonstrate that its districting was narrowly tailored to achieve a compelling interest.

Justices concurring: Kennedy, O’Connor, Scalia, Thomas, and Chief Justice

Rehnquist.

Justices dissenting: Stevens Ginsburg, Breyer, and Souter.

1105. Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).

North Carolina’s intangibles tax on a fraction of the value of corporate stock owned by North Carolina residents inversely proportional to the corporation’s exposure to the State’s income tax, violates

the ‘‘dormant’’ Commerce Clause. The tax facially discriminates

against interstate commerce, and is not a ‘‘compensatory tax’’ designed to make interstate commerce bear a burden already borne by

intrastate commerce.

1106. Barnett Bank v. Nelson, 517 U.S. 25 (1996).

A federal law empowering national banks in small towns to sell

insurance (12 U.S.C. § 92) preempts a Florida law prohibiting banks

from dealing in insurance. The federal law contains no explicit statement of preemption, but preemption is implicit because the state law

stands as an obstacle to the accomplishment of one of the federal

law’s purposes.

1107. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

Rhode Island’s statutory prohibition against advertisements that

provide the public with accurate information about retail prices of alcoholic beverages abridges freedom of speech protected by the First

Amendment, and is not shielded from constitutional scrutiny by the

Twenty-first Amendment. There is not a ‘‘reasonable fit’’ between the

blanket prohibition and the State’s goal of reducing alcohol consumption.

Justices concurring: Stevens, Scalia (in part), Kennedy (in part), Souter (in

part), Thomas (in part), and Ginsburg (in part).

Justices concurring specially: Scalia, Thomas, O’Connor, Souter, Breyer, and

Chief Justice Rehnquist.

1108. Romer v. Evans, 517 U.S. 620 (1996).

Amendment 2 to the Colorado Constitution, which prohibits all

legislative, executive, or judicial action at any level of state or local

government if that action is designed to protect homosexuals, violates

the Equal Protection Clause of the Fourteenth Amendment. The

amendment, adopted by statewide referendum in 1992, does not bear

a rational relationship to a legitimate governmental purpose.

STATE ACTS HELD UNCONSTITUTIONAL 163

Justices concurring: Kennedy, Stevens, O’Connor, Souter, Ginsburg, and

Breyer.

Justices dissenting: Scalia, Thomas, and Chief Justice Rehnquist.

1109. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996).

A Montana law declaring an arbitration clause unenforceable unless notice that the contract is subject to arbitration appears in underlined capital letters on the first page of the contract is preempted

by the Federal Arbitration Act.

Concurring Justices: Ginsburg, Stevens, O’Connor, Scalia, Kennedy, Souter,

Breyer, and Chief Justice Rehnquist.

Justice dissenting: Thomas.

1110. Shaw v. Hunt, 517 U.S. 899 (1996).

North Carolina’s congressional districting law, containing the racially gerrymandered 12th Congressional District as well as another

majority-black district, violates the Equal Protection Clause because,

under strict scrutiny applicable to racial classifications, creation of

District 12 was not narrowly tailored to serve a compelling state interest. Creation of District 12 was not necessary to comply with either

section 2 or section 5 of the Voting Rights Act, and the lower court

found that the redistricting plan was not actually aimed at ameliorating past discrimination.

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

Justices dissenting: Stevens, Ginsburg, Souter, and Breyer.

1111. Bush v. Vera, 517 U.S. 952 (1996).

Three congressional districts created by Texas law constitute racial gerrymanders that are unconstitutional under the Equal Protection Clause. The district court correctly held that race predominated

over legitimate districting considerations, including incumbency, and

consequently strict scrutiny applies. None of the three districts is narrowly tailored to serve a compelling state interest.

Justices concurring: O’Connor, Kennedy, and Chief Justice Rehnquist.

Justices concurring specially: O’Connor, Kennedy, Thomas, and Scalia.

Justices dissenting: Stevens, Ginsburg, Breyer, and Souter.

1112. United States v. Virginia, 518 U.S. 515 (1996).

Virginia’s exclusion of women from the educational opportunities

provided by Virginia Military Institute denies to women the equal

protection of the laws. A state must demonstrate ‘‘exceedingly persuasive justification’’ for gender discrimination, and Virginia has failed to

do so in this case.

Justices concurring: Ginsburg, Stevens, O’Connor, Kennedy, Souter, and

Breyer.

Justice concurring specially: Chief Justice Rehnquist.

Justice dissenting: Scalia.

164 STATE ACTS HELD UNCONSTITUTIONAL

1113. M.L.B. v. S.L.J., 519 U.S. 102 (1996).

Mississippi statutes that condition appeals from trial court decrees terminating parental rights on the affected parent’s ability to

pay for preparation of a trial transcript violate the Equal Protection

and Due Process Clauses of the Fourteenth Amendment. Decrees terminating parental rights belong in the same category of cases, starting with Griffin v. Illinois, 351 U.S. 12 (1956), in which the Court has

ruled that the State’s adverse action against an individual is so devastating that access to appellate review may not be made contingent

upon ability to pay.

Justices concurring: Ginsburg, Stevens, O’Connor, Souter, and Breyer.

Justice concurring specially: Kennedy.

Justices dissenting: Chief Justice Rehnquist, and Thomas, and Scalia.

1114. Lynce v. Mathis, 519 U.S. 433 (1997).

A Florida statute canceling early release credits awarded to prisoners as a result of prison overcrowding violates the Ex Post Facto

Clause, Art. I, § 10, cl. 1, as applied to a prisoner who had already

been awarded the credits and released from custody. The cancellation

of early release credits met the two-part test for an ex post facto law:

it was ‘‘clearly retrospective’’ and it disadvantaged the petitioner by

lengthening his period of incarceration.

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg, Breyer,

and Chief Justice Rehnquist.

Justices concurring specially: Thomas, and Scalia.

1115. Chandler v. Miller, 520 U.S. 305 (1997).

A Georgia statute requiring that candidates for state office certify

that they have passed a drug test effects a ‘‘search’’ that is plainly

not tied to individualized suspicion, and does not fit within the ‘‘closely guarded category of constitutionally permissible suspicionless

searches,’’ and hence violates the Fourth Amendment. Georgia has

failed to establish existence of a ‘‘special need, beyond the normal

need for law enforcement,’’ that can justify such a search.

Justices concurring: Ginsburg, Stevens, O’Connor, Scalia, Kennedy, Souter,

Thomas, and Breyer.

Justice dissenting: Chief Justice Rehnquist.

1116. Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564

(1997).

Maine’s property tax law, which contains an exemption for charitable institutions but limits that exemption to institutions serving

principally Maine residents, violates the ‘‘dormant’’ Commerce Clause

as applied to deny exemption status to a nonprofit corporation that

operates a summer camp for children, most of whom are not Maine

residents. The nonprofit character of the enterprise does not exclude

it from protection. Protectionism, whether targeted at for-profit or

not-for-profit entities, is prohibited.

STATE ACTS HELD UNCONSTITUTIONAL 165

Justices concurring: Stevens, O’Connor, Kennedy, Souter, and Breyer.

Justices dissenting: Scalia, Thomas, Ginsburg, and Chief Justice Rehnquist.

1117. Foster v. Love, 522 U.S. 67 (1997).

A Louisiana statute that provides for an ‘‘open primary’’ in October for election of Members of Congress and that provides that any

candidate receiving a majority of the vote in that primary ‘‘is elected,’’

conflicts with the federal law, 2 U.S.C. § § 1 and 7, that provides for

a uniform federal election day in November, and is void to the extent

of conflict. ‘‘[A] contested selection of candidates for a congressional

office that is concluded as a matter of law before the federal election

day . . . clearly violates § 7.’’

1118. Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998).

A New York law that effectively denies only nonresident taxpayers an income tax deduction for alimony paid violates the Privileges or Immunities Clause of Art. IV, § 2. New York did not adequately justify its failure to treat resident and nonresident taxpayers

with substantial equality.

Justices concurring: O’Connor, Stevens, Scalia, Souter, Thomas, and Breyer.

Justices dissenting: Ginsburg, Kennedy, and Chief Justice Rehnquist.

1119. Knowles v. Iowa, 525 U.S. 113 (1998).

An Iowa statute authorizing law enforcement officers to conduct

a full-blown search of an automobile when issuing a traffic citation

violates the Fourth Amendment. The rationales that justify a search

incident to arrest do not justify a similar search incident to a traffic

citation.

1120. Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999).

Three conditions that Colorado placed on the petition process for

ballot initiatives—that petition circulators be registered voters, that

they wear identification badges, and that initiative sponsors report

the names and addresses of circulators and the amounts paid to

each—impermissibly restrict political speech in violation of the First

and Fourteenth Amendments.

Justices concurring: Ginsburg, Stevens, Scalia, Kennedy, and Souter.

Justice concurring specially: Thomas.

Justices concurring in part and dissenting in part: O’Connor, Souter, and

Chief Justice Rehnquist.

1121. South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999).

Alabama’s franchise tax law discriminates against foreign corporations in violation of the Commerce Clause. The law establishes a

domestic corporation’s tax base as the par value of its capital stock,

a value that the corporation may set at whatever level it chooses. The

tax base of a foreign corporation, on the other hand, contains balance

sheet items that the corporation cannot so manipulate.

166 STATE ACTS HELD UNCONSTITUTIONAL

1122. Saenz v. Roe, 526 U.S. 489 (1999).

A provision of California’s Welfare and Institutions Code limiting

new residents, for the first year they live in California, to the level

of welfare benefits that they would have received in the state of their

prior residence abridges the right to travel in violation of the Fourteenth Amendment.

Justices concurring: Stevens, O’Connor, Scalia, Kennedy, Souter, Ginsburg,

and Breyer.

Justices dissenting: Chief Justice Rehnquist, and Thomas.

1123. Rice v. Cayetano, 120 S. Ct. 1044 (2000).

A provision of the Hawaii Constitution restricting the right to

vote for trustees of the Office of Hawaiian Affairs to persons who are

descendants of people inhabiting the Hawaiian Islands in 1778 is a

race-based voting qualification that violates the Fifteenth Amendment. Ancestry can be—and in this case is—a proxy for race.

Justices concurring: Kennedy, O’Connor, Scalia, Thomas, and Chief Justice

Rehnquist.

Justices concurring specially: Breyer and Souter.

Justices dissenting: Stevens and Ginsburg.

1124. United States v. Locke, 120 S. Ct. 1135 (2000).

Four Washington State regulations governing oil tanker operations and manning are preempted. Primarily through Title II of the

Ports and Waterways Safety Act of 1972, Congress has occupied the

field of regulation of general seaworthiness of tankers and their

crews, and there is no room for these state regulations imposing

training and English language proficiency requirements on crews and

imposing staffing requirements for navigation watch. State reporting

requirements applicable to certain marine incidents are also preempted.

1125. Carmell v. Texas, 120 S. Ct. 1620 (2000).

A Texas law that eliminated a requirement that the testimony of

a sexual assault victim age 14 or older must be corroborated by two

other witnesses violates the Ex Post Facto Clause of Art. I, § 10 as

applied to a crime committed while the earlier law was in effect. So

applied, the law falls into the category of an ex post facto law that

requires less evidence in order to convict. Under the old law, the petitioner could have been convicted only if the victim’s testimony had

been corroborated by two witnesses, while under the amended law the

petitioner was convicted on the victim’s testimony alone.

Justices concurring: Stevens, Scalia, Souter, Thomas, and Breyer.

Justices dissenting: Ginsburg, O’Connor, Kennedy, and Chief Justice

Rehnquist.

1126. Troxel v. Granville, 120 S. Ct. 2054 (2000).

A Washington State law allowing ‘‘any person’’ to petition a court

‘‘at any time’’ to obtain visitation rights whenever visitation ‘‘may

STATE ACTS HELD UNCONSTITUTIONAL 167

serve the best interests’’ of a child is unconstitutional as applied to

an order requiring a parent to allow her child’s grandparents more

extensive visitation than the parent wished. Because no deference

was accorded to the parent’s wishes, the parent’s due process liberty

interest in making decisions concerning her child’s care, custody, and

control was violated.

Justices concurring: O’Connor, Ginsburg, Breyer, and Chief Justice Rehnquist.

Justices concurring specially: Souter and Thomas.

Justices dissenting: Stevens, Scalia, and Kennedy.

1127. Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

A New Jersey ‘‘hate crime’’ statute that allows a judge to extend

a sentence upon finding by a preponderance of the evidence that the

defendant, in committing a crime for which he has been found guilty,

acted with a purpose to intimidate because of race, violates the Fourteenth Amendment’s Due Process Clause and the Sixth Amendment’s

requirements of speedy and public trial by an impartial jury. Any fact

that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and established beyond a reasonable doubt.

Justices concurring: Stevens, Scalia, Souter, Thomas, and Ginsburg.

Justice concurring specially: Thomas.

Justices dissenting: O’Connor, Kennedy, Breyer, and Chief Justice Rehnquist.

1128. California Democratic Party v. Jones, 120 S. Ct. 2402 (2000).

California’s ‘‘blanket primary’’ law violates the First Amendment

associational rights of political parties. The law lists all candidates on

one ballot and allows primary voters to choose freely among candidates without regard to party affiliation. The law ‘‘adulterate[s]’’ a

party’s candidate-selection process by forcing the party to open up

that process to persons wholly unaffiliated with the party, and is not

narrowly tailored to serve a compelling state interest.

Justices concurring: Scalia, O’Connor, Kennedy, Souter, Thomas, Breyer, and

Chief Justice Rehnquist.

Justices dissenting: Stevens and Ginsburg.

1129. Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000).

Application of New Jersey’s public accommodations law to require

the Boy Scouts of America to admit an avowed homosexual as a member and assistant scout master violates the organization’s First

Amendment associational rights. The general mission of the Scouts,

to instill values in young people, is expressive activity entitled to

First Amendment protection, and requiring the Scouts to admit a gay

scout leader would contravene the Scouts’ asserted policy disfavoring

homosexual conduct.

Justices concurring: Chief Justice Rehnquist, and O’Connor, Scalia, Kennedy,

and Thomas.

168 STATE ACTS HELD UNCONSTITUTIONAL

Justices dissenting: Stevens, Souter, Ginsburg, and Breyer.

1130. Stenberg v. Carhart, 120 S. Ct. 2597 (2000).

Nebraska’s statute criminalizing the performance of ‘‘partial birth

abortions’’ is unconstitutional under principles set forth in Roe v.

Wade and Planned Parenthood v. Casey. The statute lacks an exception for instances in which the banned procedure is necessary to preserve the health of the mother, and, because it applies to the commonplace dilation and evacuation procedure as well as to the dilation

and extraction method, imposes an ‘‘undue burden’’ on a woman’s

right to an abortion.

Justices concurring: Breyer, Stevens, O’Connor, Souter, and Ginsburg.

Justices dissenting: Chief Justice Rehnquist, and Scalia, Kennedy, and Thomas.

169

ORDINANCES HELD UNCONSTITUTIONAL

125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993).

Cincinnati’s refusal, pursuant to an ordinance prohibiting distribution of commercial handbills on public property, to allow the distribution of commercial publications through freestanding newsracks

located on public property, while at the same time allowing similar

distribution of newspapers and other noncommercial publications, violates the First Amendment.

Justices concurring: Stevens, Blackmun, O’Connor, Scalia, Kennedy, and

Souter.

Justices dissenting: Chief Justice Rehnquist, and White and Thomas.

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

Hialeah, Florida ordinances banning the killing of animals in a

ritual sacrifice are unconstitutional as infringing the free exercise of

religion by members of the Santeria religion.

Justices concurring: Kennedy, White, Stevens, Scalia, Souter, Thomas, and

Chief Justice Rehnquist.

Justices concurring specially: Blackmun and O’Connor.

127. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).

Clarkstown, New York ‘‘flow control’’ ordinance, which requires

all solid waste within the town to be processed at a designated transfer station before leaving the municipality, discriminates against

interstate commerce and is invalid under the Commerce Clause.

Justices concurring: Kennedy, Stevens, Scalia, Thomas, and Ginsburg.

Justice concurring specially: O’Connor.

Justices dissenting: Souter, Blackmun, and Chief Justice Rehnquist.

128. City of Ladue v. Gilleo, 512 U.S. 43 (1994).

An ordinance of the City of Ladue, Missouri, which prohibits all

signs but makes exceptions for several narrow categories, violates the

First Amendment by prohibiting a resident from placing in the window of her home a sign containing a political message. By prohibiting

residential signs that carry political, religious, or personal messages,

the ordinance forecloses ‘‘a venerable means of communication that is

both unique and important.’’

129. City of Chicago v. Morales, 527 U.S. 41 (1999).

Chicago’s Gang Congregation Ordinance, which prohibits ‘‘criminal street gang members’’ from ‘‘loitering’’ with one another or with

other persons in any public place after being ordered by a police officer to disperse, violates the Due Process Clause of the Fourteenth

Amendment. The ordinance violates the requirement that a legislature establish minimal guidelines for law enforcement.

Justices concurring: Stevens, O’Connor, Kennedy, Souter, Ginsburg, and

Breyer.

Justices dissenting: Scalia, Thomas, and Chief Justice Rehnquist.

171

SUPREME COURT DECISIONS OVERRULED BY

SUBSEQUENT DECISION

Overruling Case Overruled Case(s)

* 205. United States v. Dixon, 509 U.S.

688 (1993).

Grady v. Corbin, 495 U.S. 508 (1990).

* 206. Nichols v. United States, 511 U.S.

738 (1994).

Baldasar v. Illinois, 446 U.S. 222 (1980).

* 207. Hubbard v. United States, 514

U.S. 695 (1995).

United States v. Bramblett, 348 U.S.

503 (1955).

* 208. Adarand Constructors, Inc. v.

Pena, 515 U.S. 200 (1995).

Metro Broadcasting, Inc. v. FCC, 497

U.S. 547 (1990);

Fullilove v. Klutznick, 448 U.S. 448

(1990) (in part).

* 209. United States v. Gaudin, 515 U.S.

506 (1995).

Sinclair v. United States, 279 U.S. 263

(1929).

* 210. Fulton Corp. v. Faulkner, 516 U.S.

325 (1996).

Darnell v. Indiana, 226 U.S. 390 (1912).

* 211. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).Pennsylvania v. Union Gas Co., 491

U.S. 1 (1989).

* 212. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).California v. LaRue, 409 U.S. 109

(1972) (in part);

New York State Liquor Auth. v.

Bellanca, 452 U.S. 714 (1981) (in part);

City of Newport v. Iacobucci, 479 U.S.

92 (1986) (in part).

* 213. Agostini v. Felton, 521 U.S. 203

(1997).

Aguilar v. Felton, 473 U.S. 402 (1985);

Grand Rapids School Dist. v. Ball, 473

U.S. 373 (1985) (in part).

* 214. State Oil Co. v. Khan, 522 U.S. 3

(1997).

Albrecht v. Herald Co., 390 U.S. 145

(1968).

* 215. Hudson v. United States, 522 U.S.

93 (1997).

United States v. Halper, 490 U.S. 435

(1989).

* 216. Hohn v. United States, 524 U.S.

236 (1998).

House v. Mayo, 324 U.S. 42 (1945).

* 217. Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172

(1999).

Ward v. Race Horse, 163 U.S. 504

(1896) (in part).

* 218. College Savings Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999).

Parden v. Terminal Ry., 377 U.S. 184

(1964) (in part).

* 219. Mitchell v. Helms, 120 S. Ct. 2530

(2000).

Meek v. Pittenger, 421 U.S. 349 (1975);

Wolman v. Walter, 433 U.S. 229 (1977).

173

TABLE OF CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ....................... 71, 73, 149, 162, 171

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) .............................................................. 37

Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) ................................................................... 143

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ....................................... 39, 137, 171

Agostini v. Felton, 521 U.S. 203 (1997) .......................................................... 39, 49, 54, 55, 171

Aguilar v. Felton, 473 U.S. 402 (1985) ........................................................................ 53–56, 171

Albrecht v. Herald Co., 390 U.S. 145 (1968) ........................................................................... 171

Albright v. Oliver, 510 U.S. 266 (1994) ................................................................................... 133

Alden v. Maine, 527 U.S. 706 (1999) .............................................................. 121, 122, 124, 156

Alexander v. United States, 509 U.S. 544 (1993) ............................................................... 63, 76

Allen v. Wright, 468 U.S. 737 (1984) ......................................................................................... 33

Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) ............................................... 8, 16

Almendarez-Torres v. United States, 523 U.S. 224 (1998) .............................................. 96, 135

American Airlines v. Wolens, 513 U.S. 219 (1995) .......................................................... 13, 160

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) ...................................... 131, 136

Andresen v. Maryland, 427 U.S. 463 (1976) ............................................................................. 98

Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) ............................................................ 135, 167

Arave v. Creech, 507 U.S. 463 (1993) ...................................................................................... 116

Arizona Dep’t of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999) ....................................... 48

Arizona v. Evans, 514 U.S. 1 (1995) .......................................................................................... 92

Arizonans For Official English v. Arizona, 520 U.S. 43 (1997) ............................................... 37

Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998) ...................................... 79

Associated Industries v. Lohman, 511 U.S. 641 (1994) ......................................................... 159

Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) ....................................................... 124

Austin v. United States, 509 U.S. 602 (1993) ......................................................................... 115

Babbitt v. Youpee, 519 U.S. 234 (1997) .......................................................................... 105, 153

Baldasar v. Illinois, 446 U.S. 222 (1980) ................................................................................. 171

Baltimore Dep’t of Social Servs. v. Bouknight, 493 U.S. 549 (1990) ...................................... 98

Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298 (1994) ................................ 13

Barnett Bank v. Nelson, 517 U.S. 25 (1996) .............................................................. 15, 16, 162

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ................................................................. 72

Bennett v. Spear, 520 U.S. 154 (1997) ................................................................................ 34, 36

Bennis v. Michigan, 516 U.S. 442 (1996) ................................................................................ 128

Blodgett v. Holden, 275 U.S. 142 (1927) ................................................................................. 102

BMW v. Gore, 517 U.S. 559 (1996) .......................................................................................... 131

Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) .............................................. 65, 66

Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994) .............. 49, 50, 60, 160

Board of Regents of the Univ. of Wisconsin System v. Southworth, 120 S. Ct. 1346

(2000) ........................................................................................................................................ 64

Boddie v. Connecticut, 401 U.S. 371 (1971) ............................................................................ 142

Boggs v. Boggs, 520 U.S. 833 (1997) ................................................................................... 14–16

Bond v. United States, 120 S. Ct. 1462 (2000) ................................................................... 87, 89

Bousley v. Brooks, 523 U.S. 614 (1998) .............................................................................. 37, 42

Bowen v. Kendrick, 487 U.S. 589 (1988) ................................................................................... 54

Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000) ................................................... 64, 167

Bradfield v. Roberts, 175 U.S. 291 (1899) ................................................................................. 54

Braunfeld v. Brown, 366 U.S. 599 (1961) .................................................................................. 50

Breard v. Greene, 523 U.S. 371 (1998) .................................................................................... 121

Brecht v. Abrahamson, 507 U.S. 619 (1993) ..................................................................... 98, 117

Buchanan v. Angelone, 522 U.S. 269 (1998) ........................................................................... 116

Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999) ................... 67, 82, 165

174 TABLE OF CASES

Bush v. Vera, 517 U.S. 952 (1996) .................................................................................. 140, 163

Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) .................................................... 41

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) ............................. 9, 12, 169

Calderon v. Coleman, 525 U.S. 141 (1998) ............................................................................. 117

California Democratic Party v. Jones, 120 S. Ct. 2402 (2000) .............................................. 167

California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995) ............................................. 20

California Div. of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519 U.S. 316

(1997) .................................................................................................................................. 14, 15

California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) .................................................. 121

California v. LaRue, 409 U.S. 109 (1972) ....................................................................... 149, 171

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ........................................................ 18

Campbell v. Louisiana, 523 U.S. 392 (1998) ..................................................................... 34, 137

Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997) ..... 9, 11, 20, 164

Cantwell v. Connecticut, 310 U.S. 296 (1940) .......................................................................... 50

Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984) ....................................................... 149

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ................ 50, 59, 79

Cardinal Chemical Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993) ............................................ 37

Carmell v. Texas, 120 S. Ct. 1620 (2000) .......................................................................... 20, 166

Carter v. Carter Coal Co., 298 U.S. 238 (1936) .......................................................................... 6

CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973) ............................................................... 63

Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948) .............................................. 10

Central Hudson Gas & Elec. Co. v. Public Serv. Comm’n, 447 U.S. 557 (1980) .............. 70–73

Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 (1999) ............... 137

Chandler v. Miller, 520 U.S. 305 (1997) ........................................................................... 92, 164

Chapman v. California, 386 U.S. 18 (1967) ...................................................................... 98, 117

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ..... 50, 60, 61, 169

City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) ................................................... 82

City of Boerne v. Flores, 521 U.S. 507 (1997) .................................................... 61, 62, 144, 153

City of Chicago v. International Coll. of Surgeons, 522 U.S. 156 (1998) ................................ 39

City of Chicago v. Morales, 527 U.S. 41 (1999) .............................................................. 133, 169

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ............................... 70, 169

City of Ladue v. Gilleo, 512 U.S. 43 (1994) ...................................................................... 83, 169

City of Los Angeles v. Preferred Communications, 476 U.S. 488 (1986) ................................ 74

City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999) ................... 105

City of Newport v. Iacobucci, 479 U.S. 92 (1986) ................................................................... 171

City of West Covina v. Perkins, 525 U.S. 234 (1999) ............................................................. 132

Civil Rights Cases, 109 U.S. 3 (1883) ...................................................................................... 143

Clements v. Fashing, 457 U.S. 957 (1982) ................................................................................ 34

Clinton v. City of New York, 524 U.S. 417 (1998) ................................................... 2, 5, 35, 155

Clinton v. Jones, 520 U.S. 681 (1997) ....................................................................................... 26

Coleman v. Miller, 307 U.S. 433 (1939) .................................................................................... 35

College Savings Bank v. Florida Prepaid Postsec. Educ. Expense Bd., 527 U.S. 666

(1999) ............................................................................................................. 123, 145, 156, 171

Collins v. Hardyman, 341 U.S. 651 (1951) .............................................................................. 143

Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996) ..................... 39, 66, 151

Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) ........................................ 52, 53, 57

Concrete Pipe & Products v. Construction Laborers Pension Trust, 508 U.S. 602

(1993) ...................................................................................................................................... 103

Conn v. Gabbert, 526 U.S. 286 (2000) ..................................................................................... 128

Cooper v. Oklahoma, 517 U.S. 348 (1996) .............................................................................. 136

County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) ......................... 49, 50

County of Sacramento v. Lewis, 523 U.S. 833 (1998) ............................................................ 127

Crosby v. National Foreign Trade Council, 120 S. Ct. 2288 (2000) ........................................ 17

TABLE OF CASES 175

CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) ................................................ 14

Dalton v. Specter, 511 U.S. 462 (1994) ............................................................................... 24, 26

Darnell v. Indiana, 226 U.S. 390 (1912) .................................................................................. 171

Davis v. United States, 512 U.S. 452 (1994) ........................................................................... 101

De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806 (1997) ...................... 14

Delaware v. Prouse, 440 U.S. 648 (1979) .................................................................................. 90

Dellmuth v. Muth, 491 U.S. 223 (1989) .......................................................................... 123, 124

Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996) ........................... 75, 76, 153

Department of Agriculture v. Moreno, 413 U.S. 528 (1973) .................................................. 142

Department of Commerce v. United States House of Representatives, 525 U.S. 316

(1999) ........................................................................................................................................ 32

Department of Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61

(1994) ........................................................................................................................................ 17

Department of Treasury v. Fabe, 508 U.S. 491 (1993) .................................................... 13, 159

Dickerson v. United States, 120 S. Ct. 2326 (2000) ......................................................... 99, 158

District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 (1992) ................... 13

Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) ............................................. 16, 163

Doe v. United States, 487 U.S. 201 (1988) ................................................................................ 98

Dolan v. City of Tigard, 512 U.S. 374 (1994) .................................................................. 104, 105

Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972) .......................................................... 143

Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996) ................................................................... 44

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) .......................................... 20, 103, 105, 155

Edenfield v. Fane, 507 U.S. 761 (1993) ....................................................................... 69, 70, 159

Edmond v. United States, 520 U.S. 651 (1997) ........................................................................ 25

Employees of the Dep’t of Pub. Health and Welfare v. Department of Pub. Health and

Welfare, 411 U.S. 279 (1973) ................................................................................................ 124

Employment Div. v. Smith, 494 U.S. 872 (1990) ................................................. 51, 61, 62, 144

Erie v. Pap’s A.M., 120 S. Ct. 1382 (2000) ................................................................................ 78

Estelle v. Smith, 451 U.S. 454 (1981) ........................................................................................ 97

Evans v. Romer, 854 P.2d 1270 (Colo. 1993) .......................................................................... 141

Ex parte Virginia, 100 U.S. 339 (1880) ..................................................................................... 63

Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................ 118

FCC v. Beach Communications, 508 U.S. 307 (1993) .................................................... 102, 137

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) .............................................................. 75, 77

FDIC v. Meyer, 510 U.S. 471 (1994) .......................................................................................... 40

FEC v. Akins, 524 U.S. 11 (1998) .................................................................................. 32, 34, 36

Felker v. Turpin, 518 U.S. 651 (1996) .......................................................................... 31, 41, 43

Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998) ...................................... 113, 155

Fisher v. United States, 425 U.S. 391 (1976) ........................................................................... 98

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ...................................................................... 123, 144

Flippo v. West Virginia, 120 S. Ct. 7 (1999) ............................................................................. 90

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ....................................................... 68, 73

Florida Prepaid Postsec. Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627

(1999) ...................................................................................................................... 123, 144, 156

Florida v. J.L., 120 S. Ct. 1375 (2000) ....................................................................................... 89

Florida v. White, 526 U.S. 559 (1999) ....................................................................................... 91

Foster v. Love, 522 U.S. 67 (1997) ........................................................................................... 165

Foucha v. Louisiana, 504 U.S. 71 (1992) ................................................................................. 130

Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) ................................................................... 15

Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693 (2000) .............................. 33, 37

Frisby v. Schultz, 487 U.S. 474 (1988) ...................................................................................... 80

Fullilove v. Klutznick, 448 U.S. 448 (1990) .................................................................... 138, 171

Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) .................................................. 10, 11, 162, 171

176 TABLE OF CASES

Furman v. Georgia, 408 U.S. 238 (1972) ..................................................................................... 1

Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967) ................................................................ 37

Garner v. Jones, 120 S. Ct. 1362 (2000) .................................................................................... 20

Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) ...................................... 41, 113

Geier v. American Honda Motor Co., 120 S. Ct. 1913 (2000) .................................................. 15

General Motors Corp. v. Tracy, 519 U.S. 278 (1997) ............................................................... 11

Gilbert v. Homar, 520 U.S. 924 (1997) .................................................................................... 132

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997) ............................................ 63

Goldberg v. Sweet, 488 U.S. 252 (1989) .................................................................................... 10

Gooding v. United States, 416 U.S. 430 (1974) ........................................................................ 88

Grady v. Corbin, 495 U.S. 508 (1990) ............................................................................... 97, 171

Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) ...................................... 50, 52–55, 171

Gray v. Maryland, 523 U.S. 185 (1998) ................................................................................... 110

Gray v. Netherland, 518 U.S. 152 (1996) ............................................................................ 37, 42

Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) .................... 143

Greater New Orleans Broadcasting Ass’n v. United States,

527 U.S. 173 (1999) ................................................................................................... 71, 73, 155

Green v. French, 143 F.3d 865 (4th Cir. 1998) ......................................................................... 44

Gregory v. Ashcroft, 501 U.S. 452 (1991) ................................................................................ 145

Griffin v. Breckenridge, 403 U.S. 88 (1971) ............................................................................ 143

Griffin v. Illinois, 351 U.S. 12 (1956) ...................................................................................... 164

Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) .......................................... 40

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ...................................................................... 41

Guinn v. United States, 238 U.S. 347 (1915) .......................................................................... 147

Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) ........................................................ 27

Hagen v. Utah, 510 U.S. 399 (1994) .......................................................................................... 17

Hall v. Washington, 106 F.3d 742 (7th Cir. 1997) ................................................................... 44

Hanlon v. Berger, 526 U.S. 808 (1999) ...................................................................................... 89

Hans v. Louisiana, 134 U.S. 1 (1890) ...................................................................................... 122

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) ....................................................... 38

Harris v. Alabama, 513 U.S. 504 (1995) ................................................................................. 116

Heiner v. Donnan, 285 U.S. 312 (1932) ................................................................................... 102

Helling v. McKinney, 509 U.S. 25 (1993) ................................................................................ 118

Herrera v. Collins, 506 U.S. 390 (1993) ............................................................................ 42, 117

Hetzel v. Prince William County, 523 U.S. 208 (1998) .......................................................... 113

Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) .......................................................................... 85

Hill v. Colorado, 120 S. Ct. 2480 (2000) .................................................................................... 81

Hill v. Lockhart, 474 U.S. 52 (1985) ........................................................................................ 111

Hodel v. Irving, 481 U.S. 704 (1987) ............................................................................... 105, 153

Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981) ..................... 107

Hoffman v. Connecticut Dep’t of Income Maintenance, 492 U.S. 96 (1989) ......................... 123

Hohn v. United States, 524 U.S. 236 (1998) ............................................................... 39, 43, 171

Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ............................................................ 131, 160

Hopkins v. Reeves, 524 U.S. 88 (1998) .................................................................................... 116

House v. Mayo, 324 U.S. 42 (1945) .......................................................................................... 171

Hubbard v. United States, 514 U.S. 695 (1995) ..................................................................... 171

Hudson v. United States, 522 U.S. 93 (1997) ......................................................................... 171

Hunt v. Cromartie, 526 U.S. 541 (1999) ................................................................................. 139

Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S. Ct. 1022 (2000) ............................... 10

Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995) ................................ 64, 74, 81, 161

Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) ..................................................... 69

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) ........................................................ 124, 125

Illinois v. Wardlow, 120 S. Ct. 673 (2000) ................................................................................ 89

TABLE OF CASES 177

In re Winship, 397 U.S. 358 (1970) ......................................................................................... 109

In re Young, 141 F.3d 854 (8th Cir. 1998) ................................................................................ 62

INS v. Chadha, 462 U.S. 919 (1983) ............................................................................................ 5

International Union, UMW v. Bagwell, 512 U.S. 821 (1994) .................................... 30, 31, 109

Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60 (1993) ...................................... 9, 12, 21

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) .............................................................. 138

Jefferson County v. Acker, 527 U.S. 423 (1999) ....................................................................... 48

John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86

(1993) ........................................................................................................................................... 13

Johnson v. Texas, 509 U.S. 350 (1993) .................................................................................... 116

Jones v. United States, 120 S. Ct. 1904 (2000) ...................................................................... 6, 8

Jones v. United States, 357 U.S. 493 (1958) ............................................................................. 88

Kansas v. Hendricks, 521 U.S. 346 (1997) ........................................................................ 95, 129

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) .............................. 107

Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) ................................. 123, 124, 145, 157

Knowles v.Iowa, 525 U.S. 113 (1998) .......................................................................... 90, 91, 165

Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ....................................................... 39

Kolender v. Lawson, 461 U.S. 352 (1983) ............................................................................... 133

Kotteakos v. United States, 328 U.S. 750 (1946) ............................................................. 98, 117

Lamb’s Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993) ................................. 59, 79

Lambrix v. Singletary, 520 U.S. 518 (1997) ....................................................................... 37, 42

Leathers v. Medlock, 499 U.S. 439 (1991) ................................................................................. 74

Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995) .............................................. 63

Lee v. Weisman, 505 U.S. 577 (1992) .................................................................................. 49, 50

Lemon v. Kurtzman, 403 U.S. 602 (1971) .............................................................. 52–56, 58, 59

Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................. 32, 136

Lewis v. United States, 518 U.S. 322 (1996) .......................................................................... 109

Lilly v. Virginia, 527 U.S. 116 (1999) ...................................................................................... 110

Linda R. S. v. Richard D., 410 U.S. 614 (1973) ........................................................................ 33

Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) ......................................................................... 44

Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977) ..................................... 72

Livadas v. Bradshaw, 512 U.S. 107 (1994) ............................................................................... 17

Lockhart v. Fretwell, 506 U.S. 364 (1993) .............................................................................. 111

Lopez v. Monterey County, 525 U.S. 266 (1999) .................................................................... 147

Loving v. United States, 517 U.S. 748 (1996) ................................................................ 1, 18, 23

Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) ............................................................ 37

Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998) ................................ 45, 165

Lynce v. Mathis, 519 U.S. 433 (1997) ............................................................................... 20, 164

Lynch v. Donnelly, 465 U.S. 668 (1984) .................................................................................... 50

M.L.B. v. S.L.J., 519 U.S. 102 (1996) .............................................................................. 142, 164

MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986) ............................... 106

Madsen v. Women’s Health Center, 512 U.S. 753 (1994) ........................................................ 79

Mapp v. Ohio, 367 U.S. 643 (1961) .......................................................................................... 100

Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996) ...................................... 18, 113

Martinez v. Court of App. of Cal., Fourth App. Dist., 120 S. Ct. 684 (2000) ....................... 111

Maryland v. Dyson, 527 U.S. 465 (1999) ................................................................................... 90

Maryland v. Wilson, 519 U.S. 408 (1997) .................................................................................. 89

Mayer v. Chicago, 404 U.S. 189 (1971) ................................................................................... 142

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .............................................. 82, 161

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ....................................................................... 135

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ............................................................................ 14

Meek v. Pittenger, 421 U.S. 349 (1975) ...................................................................... 53–56, 171

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) .................................................. 138, 171

178 TABLE OF CASES

Michigan v. Tucker, 417 U.S. 433 (1974) .......................................................................... 99, 100

Miller v. Albright, 523 U.S. 420 (1998) ................................................................................... 138

Miller v. French, 120 S. Ct. 2246 (2000) ............................................................................. 29, 31

Miller v. Johnson, 515 U.S. 900 (1995) ........................................................................... 139, 162

Minnesota v. Carter, 525 U.S. 83 (1998) ................................................................................... 87

Minnesota v. Dickerson, 508 U.S. 366 (1993) ........................................................................... 89

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) .................... 46, 171

Miranda v. Arizona, 384 U.S. 436 (1966) .................................................................. 98–100, 158

Mississippi v. Louisiana, 506 U.S. 73 (1992) ............................................................................ 40

Mitchell v. Helms, 120 S. Ct. 2530 (2000) ................................................ 49, 50, 52, 54, 56, 171

Mitchell v. United States, 526 U.S. 314 (1999) ........................................................................ 97

Monge v. California, 524 U.S. 721 (1998) ........................................................................... 96, 97

Montana Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) ................................... 95, 160

Montana v. Egelhoff, 518 U.S. 37 (1996) ................................................................................ 133

Mueller v. Allen, 463 U.S. 388 (1983) ....................................................................................... 52

Murray v. Carrier, 477 U.S. 478 (1986) .................................................................................... 43

National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479

(1998) ........................................................................................................................................... 36

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) .......................................... 68

Neder v. United States, 527 U.S. 1 (1999) .............................................................................. 109

Nelson v. Adams, 120 S. Ct. 1579 (2000) ................................................................................ 132

New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S.

645 (1995) ................................................................................................................................. 13

New York State Liquor Auth. v. Bellanca, 452 U.S.714 (1981) ............................................ 171

New York v. Quarles, 467 U.S. 549 (1984) ............................................................................... 99

New York v. United States, 505 U.S. 144 (1992) ............................................................. 47, 154

Newsweek, Inc. v. Florida Dep’t of Revenue, 522 U.S. 442 (1998) ....................................... 128

Nichols v. Coolidge, 274 U.S. 531 (1927) ................................................................................. 102

Nichols v. United States, 511 U.S. 738 (1994) ............................................................... 110, 171

Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000) ....................................... 67

Nixon v. United States, 506 U.S. 224 (1993) ...................................................................... 27, 38

Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) .......................................... 104, 105

Norfolk So. Ry. v. Shanklin, 120 S. Ct. 1467 (2000) ................................................................ 14

Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656

(1993) ............................................................................................................................ 33, 34, 37

O’Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998) ......................................................................... 44

O’Dell v. Netherland, 521 U.S. 151 (1997) .......................................................................... 37, 42

O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) ....................................... 65

O’Melveny & Myers v. FDIC, 512 U.S. 79 (1994) ..................................................................... 41

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) ........................................... 132, 136

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ........................................................ 36

Ohio v. Robinette, 519 U.S. 33 (1996) ....................................................................................... 91

Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) ................................................. 69, 72, 73

Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995) ............................... 17, 161

Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995) ......................... 9, 10, 39

Oklahoma Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993) ............................... 17, 159

One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972) ..................................... 95

Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93 (1994) ........ 11, 12, 159

Ornelas v. United States, 517 U.S. 690 (1996) ......................................................................... 87

Parden v. Terminal Ry., 377 U.S. 184 (1964) ......................................................................... 171

Parke v. Raley, 506 U.S. 20 (1992) .................................................................................. 135, 136

Paul v. Virginia, 8 U.S. (Wall) 168 (1868) .............................................................................. 140

Peacock v. Thomas, 516 U.S. 349 (1996) ................................................................................... 39

TABLE OF CASES 179

Pennell v. City of San Jose, 485 U.S. 1 (1988) ............................................................... 104, 106

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ........................................ 122

Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998) .............................. 93

Pennsylvania v. Labron, 518 U.S. 938 (1996) ........................................................................... 90

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ................................................ 122, 152, 171

Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) ............................................ 106

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ............................................................... 130

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ................................................ 29, 30, 152

Portuondo v. Agard, 120 S. Ct. 1119 (2000) ............................................................................ 110

Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328

(1986)..................................................................................................................................... 71, 72

Powers v. Ohio, 499 U.S. 400 (1991) ......................................................................................... 34

Printz v. United States, 521 U.S. 898 (1997) ......................................... 5, 47, 85, 119, 120, 154

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) ........................................................... 42

Raines v. Byrd, 521 U.S. 811 (1997) .................................................................................... 34, 35

Rakas v. Illinois, 439 U.S. 128 (1978) ....................................................................................... 87

Ramdass v. Angelone, 120 S. Ct. 2113 (2000) ........................................................................ 117

Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) .......................................... 34

Regents of the Univ. of California v. Doe, 519 U.S. 425 (1997) ............................................ 122

Reich v. Collins, 513 U.S. 106 (1994) ...................................................................................... 128

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ........................................ 77, 154

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) ............................ 18

Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993) .................................................... 34, 37

Reno v. Condon, 120 S. Ct. 666 (2000) .......................................................................... 6, 48, 120

Reno v. Flores, 507 U.S. 292 (1993) ........................................................................................... 18

Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878) ........................................................... 50

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) ........................................................... 38

Rice v. Cayetano, 120 S. Ct. 1044 (2000) ........................................................................ 147, 166

Richards v. Jefferson County, 517 U.S. 793 (1996) ................................................................ 132

Richards v. Wisconsin, 520 U.S. 385 (1997) .............................................................................. 88

Richmond v. Lewis, 506 U.S. 40 (1992) ................................................................................... 116

Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000) .......................................................................... 111

Roe v. Wade, 410 U.S. 113 (1973) ............................................................................................ 129

Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) ................................................ 54

Romano v. Oklahoma, 512 U.S. 1 (1994) ................................................................................ 116

Romer v. Evans, 517 U.S. 620 (1996) .............................................................................. 141, 162

Rosenberger v. University of Virginia, 515 U.S. 819 (1995) ....................................... 49, 59, 79

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ................................................ 69–71, 73, 151

Rutledge v. United States, 517 U.S. 292 (1996) ....................................................................... 96

Ryder v. United States, 515 U.S. 177 (1995) ...................................................................... 25, 38

Saenz v. Roe, 526 U.S. 489 (1999) ................................................................... 127, 140, 141, 166

Sale v. Haitian Centers Council, 509 U.S. 155 (1993) ............................................................. 17

Sandin v. Conner, 515 U.S. 472 (1995) ................................................................................... 132

Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000) .......................................... 49, 50, 58

Santosky v. Kramer, 455 U.S. 745 (1982) ............................................................................... 142

Sawyer v. Whitney, 505 U.S. 333 (1995) ................................................................................... 43

Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) ........................ 80

Schiro v. Farley, 510 U.S. 222 (1994) ........................................................................................ 95

Schlup v. Delo, 513 U.S. 298 (1995) .......................................................................................... 43

Scott v. Illinois, 440 U.S. 367 (1979) ....................................................................................... 110

Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) .......................................................................... 143

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ............... 39, 121, 122, 144, 152, 171

Shaw v. Hunt, 517 U.S. 899 (1996) ................................................................................. 139, 163

180 TABLE OF CASES

Shaw v. Reno, 509 U.S. 630 (1993) .......................................................................................... 139

Shelley v. Kraemer, 334 U.S. 1 (1948) .................................................................................... 143

Sherbert v. Verner, 374 U.S. 398 (1963) ............................................................................. 50, 61

Simmons v. South Carolina, 512 U.S. 154 (1994) .................................................................. 117

Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976) ................................... 33

Sinclair v. United States, 279 U.S. 263 (1929) ....................................................................... 171

Sloan v. Lemon, 413 U.S. 825 (1973) ......................................................................................... 53

Smiley v. Citibank, 517 U.S. 735 (1996) ................................................................................... 13

Smith v. Robbins, 528 U.S. 259 (2000) .................................................................................... 142

Soldal v. Cook County, 506 U.S. 56 (1992) ............................................................................... 87

South Carolina v. Baker, 484 U.S. 505 (2000) ........................................................................ 120

South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) ........................................ 10, 165

South Dakota v. Bourland, 508 U.S. 679 (1993) ....................................................................... 17

Spencer v. Kemna, 523 U.S. 1 (1998) ........................................................................................ 37

Stansbury v. California, 511 U.S. 318 (1994) ......................................................................... 101

State Oil Co. v. Khan, 522 U.S. 3 (1997) .......................................................................... 39, 171

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) ....................................... 33

Stenberg v. Carhart, 120 S. Ct. 2597 (2000) ................................................................... 128, 168

Stone v. Powell, 428 U.S. 465 (1976) ............................................................................... 100, 101

Strickland v. Washington, 466 U.S. 668 (1984) .............................................................. 111, 134

Strickler v. Greene, 527 U.S. 263 (1999) ................................................................................. 134

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) ....................................... 106

Sullivan v. Louisiana, 508 U.S. 275 (1993) ..................................................................... 109, 134

Texas v. United States, 523 U.S. 296 (1998) ............................................................................ 36

Tilton v. Richardson, 403 U.S. 672 (1971) ................................................................................ 54

Timmons v. Twin City Area New Party, 520 U.S. 351 (1997) ................................................. 66

Toilet Goods Ass’n v. Gardner, 387 U.S. 158 (1967) ................................................................ 37

Troxel v. Granville, 120 S. Ct. 2054 (2000) ..................................................................... 129, 166

Tuggle v. Netherland, 516 U.S. 10 (1995) ............................................................................... 117

Tuilaepa v. California, 512 U.S. 967 (1994) ............................................................................ 116

Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) ..................................................... 74

Turner Broadcasting System v. FCC, 520 U.S. 180 (1997) ..................................................... 75

Turner v. Fouche, 396 U.S. 346 (1970) ...................................................................................... 34

TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993) ................................................ 131

U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) ...................... 37

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ............................................. 2, 3, 161

United States v. Bagley, 473 U.S. 667 (1985) ......................................................................... 134

United States v. Bajakajian, 524 U.S. 321 (1998) .................................................................. 115

United States v. Balsys, 524 U.S. 666 (1998) ........................................................................... 99

United States v. Bramblett, 348 U.S. 503 (1955) ................................................................... 171

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............................................................ 90

United States v. Cabrales, 524 U.S. 1 (1998) ......................................................................... 110

United States v. Carlton, 512 U.S. 26 (1994) ......................................................................... 102

United States v. Di Re, 332 U.S. 581 (1948) ............................................................................. 91

United States v. Dixon, 509 U.S. 688 (1993) .................................................................... 97, 171

United States v. Doe, 465 U.S. 605 (1984) ................................................................................ 98

United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) .................................... 69–71, 73

United States v. Gaudin, 515 U.S. 506 (1995) ................................................................ 109, 171

United States v. Gomez, 92 F.3d 770 (9th Cir. 1996) .............................................................. 85

United States v. Halper, 490 U.S. 435 (1989) ........................................................................ 171

United States v. Harris, 106 U.S. 629 (1883) ......................................................................... 143

United States v. Hemme, 476 U.S. 558 (1986) ....................................................................... 102

United States v. Hubbell, 120 S. Ct. 2037 (2000) .............................................................. 98, 99

TABLE OF CASES 181

United States v. IBM, 517 U.S. 843 (1996) .......................................................... 18, 19, 39, 151

United States v. Jacobsen, 466 U.S. 109 (1984) ....................................................................... 87

United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) ............................. 131

United States v. Lanier, 520 U.S. 259 (1997) ......................................................................... 133

United States v. Lee, 455 U.S. 252 (1982) ................................................................................ 51

United States v. Locke, 120 S. Ct. 1135 (2000) ................................................................ 16, 166

United States v. Lopez, 514 U.S. 549 (1995) .......................................................... 6–8, 119, 152

United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) .................................................... 134

United States v. Martinez-Salazar, 120 S. Ct. 774 (2000) ..................................................... 110

United States v. Morrison, 120 S. Ct. 1740 (2000) ........................................ 7, 8, 119, 143, 157

United States v. National Treasury Employees Union, 513 U.S. 454 (1995) .......... 26, 65, 152

United States v. O’Brien, 391 U.S. 367 (1968) ................................................................... 74, 78

United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984) ................................. 95

United States v. Padilla, 508 U.S. 77 (1993) ............................................................................ 93

United States v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000) ........ 75–78, 157

United States v. Ramirez, 523 U.S. 65, 71 (1998) .................................................................... 88

United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) ........................................ 107

United States v. United States Shoe Corp., 523 U.S. 360 (1998) ................................... 19, 154

United States v. Ursery, 518 U.S. 267 (1996) ........................................................................... 95

United States v. Virginia, 518 U.S. 515 (1996) .............................................................. 139, 163

United States v. Watts, 519 U.S. 148 (1997) ............................................................................ 96

United States v. Winstar Corp., 518 U.S. 839 (1996) ............................................................ 103

United States v. Wright, 117 F.3d 1265 (11th Cir. 1997) ........................................................ 85

Untermyer v. Anderson, 276 U.S. 440 (1928) ......................................................................... 102

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ....................................................... 102

Vacco v. Quill, 521 U.S. 793 (1997) ................................................................................. 130, 137

Various Items of Personal Property v. United States, 282 U.S. 577 (1931) ........................... 95

Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 120 S. Ct. 1858

(2000) ........................................................................................................................................... 33

Vernonia School Dist. v. Acton, 515 U.S. 646 (1995) ......................................................... 91, 92

Victor v. Nebraska, 511 U.S. 1 (1994) ..................................................................................... 135

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748

(1976) ........................................................................................................................................ 72

Voinovich v. Quilter, 507 U.S. 146 (1993) ............................................................................... 139

Wallace v. Jaffrey, 472 U.S. 38 (1985) ...................................................................................... 50

Walton v. Arizona, 497 U.S. 639 (1990) .................................................................................. 135

Ward v. Race Horse, 163 U.S. 504 (1896) ............................................................................... 171

Warth v. Seldin, 422 U.S. 490 (1975) ........................................................................................ 33

Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................... 130

Waters v. Churchill, 511 U.S. 661 (1994) .................................................................................. 66

Weeks v. Angelone, 120 S. Ct. 727 (2000) ............................................................................... 117

Weiss v. United States, 510 U.S. 163 (1994) ............................................................................ 25

West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994) ........................................... 9, 11, 160

Whren v. United States, 517 U.S. 806 (1996) ........................................................................... 90

Williamson County Regional Planning Comm’n v. Hamilton Bank,

473 U.S. 172 (1985) ............................................................................................................... 106

Wilson v. Arkansas, 514 U.S. 927 (1995) .................................................................................. 88

Wilson v. Layne, 526 U.S. 603 (1999) ........................................................................................ 89

Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ........................................................................ 36

Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381 (1998) ........................................... 125

Wisconsin v. City of New York, 517 U.S. 1 (1996) ..................................................................... 4

Wisconsin v. Mitchell, 508 U.S. 476 (1993) ........................................................................ 64, 76

Wisconsin v. Yoder, 406 U.S. 205 (1972) ............................................................................ 50, 61

182 TABLE OF CASES

Withrow v. Williams, 507 U.S. 680 (1993) ...................................................................... 100, 101

Witte v. United States, 515 U.S. 389 (1995) ....................................................................... 96, 97

Witters v. Washington Dep’t of Social Servs., 474 U.S. 481 (1986) .................................. 52, 55

Wolman v. Walter, 433 U.S. 229 (1977) ............................................................... 52, 54, 56, 171

Wood v. Bartholomew, 516 U.S. 1 (1995) ................................................................................ 134

Wyoming v. Houghton, 526 U.S. 295 (1999) ............................................................................. 91

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) ............................................................ 40

Ybarra v. Illinois, 444 U.S. 85 (1979) ........................................................................................ 91

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) ............................................ 72

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) ................................... 49, 53, 55, 57

183

INDEX

Abortion

Colorado statute restricting proselytizing outside clinics ................................................. 81

Nebraska ban on ‘‘partial-birth’’ abortions, undue burden on right .............................. 128

protests, injunctions, First Amendment protections ......................................................... 79

Admiralty

maritime torts ...................................................................................................................... 40

Advertising

ban on ads for casino gambling, invalidity ........................................................................ 71

compelled disclosure of information ................................................................................... 72

Affirmative action

federal legislation subject to strict scrutiny ..................................................................... 137

Age Discrimination in Employment Act

not exercise of 14th Amdmt. enforcement power ............................................................ 145

Ancestry

proxy for race for 15th Amdmt. analysis ......................................................................... 147

Antiterrorism and Effective Death Penalty Act of 1996

limitations on successive habeas petitions ......................................................................... 43

Appointments Clause

definition of ‘‘inferior officer’’ .............................................................................................. 25

military judges ..................................................................................................................... 25

Association, right of

Boy Scouts’ exclusion of homosexual from adult membership ......................................... 64

contribution limitations, campaign finance ....................................................................... 67

parade organizers, control of parade message ................................................................... 64

Boy Scouts

right to exclude avowed homosexuals ................................................................................ 64

Brady Handgun Violence Prevention Act

state enforcement, constitutionality ................................................................................... 47

Cable television

First Amendment protections ............................................................................................. 74

indecent programming ......................................................................................................... 76

Campaign finance

independent party expenditures, First Amendment ......................................................... 67

state limits on contributions to state political candidates ................................................ 67

Census

decision not to make statistical adjustment ........................................................................ 4

Children

juvenile court order to produce a child ............................................................................... 98

Civil commitment

not punishment for double jeopardy purposes ................................................................... 95

sexual predators with mental abnormality or personality disorder .............................. 129

Commerce clause

discriminatory local solid waste ‘‘flow control’’ law ........................................................... 12

discriminatory state taxation ........................................................................................ 10, 11

state taxation, apportionment, multinational corporation ............................................... 13

Commerce power

anti-commandeering restriction .................................................................................. 47, 119

invalidity of Gun-Free School Zones Act .............................................................................. 6

invalidity of Violence Against Women Act ........................................................................... 8

*COM008*Congress

Members, standing to sue ................................................................................................... 35

184 INDEX

*COM008*Congress—Continued

qualifications of Members, term limits ............................................................................ 2, 3

Congressional districting

racial gerrymandering, bizarrely shaped districts .......................................................... 139

Congressional powers

abrogation of states’ 11th Amdmt. immunity via 14th Amdmt. .................................... 144

no power to abrogate states’ 11th Amdmt. immunity via Art. I .................................... 122

Contempt

distinction between civil and criminal contempt ............................................................... 30

Counsel, assistance of

ineffective counsel, grounds for new trial ........................................................................ 111

self-representation, no right on direct appeal from conviction ....................................... 111

Death penalty

Antiterrorism and Effective Death Penalty Act of 1996 ................................................... 43

military justice, standards promulgated by President ........................................................ 1

permissible jury instructions ............................................................................................ 116

Delegation

Line Item Veto Act ................................................................................................................. 5

military justice, President’s authority as Commander-in-Chief .................................. 1, 23

Diversity of Citizenship

federal court cases, choice of law ........................................................................................ 40

Driver’s Privacy Protection Act

not invalid commandeering of state government ............................................................ 120

Drug testing

candidates for state office .................................................................................................... 92

public high school athletes .................................................................................................. 91

Due process

anti-loitering ordinance, enforcement, lack of standards ............................................... 133

retroactive legislation ................................................................................................ 102, 103

retroactive taxation ............................................................................................................ 102

solitary confinement of prisoners ...................................................................................... 132

Durational residency requirements

privileges or immunities analysis ............................................................................. 127, 140

Enforcement of Fourteenth Amendment

congressional power, requisites for legislation ................................................................ 143

congruence and proportionality requirements ................................................................. 144

Ex Post Facto Clause

decreasing frequency for parole-suitability hearings ........................................................ 20

retroactive reduction of evidence needed to convict .......................................................... 20

Excessive fines

civil forfeiture ..................................................................................................................... 115

reporting violation, currency export ................................................................................. 115

Export Clause

Harbor Maintenance Tax .................................................................................................... 18

False Claims Act

qui tam actions, standing to sue ......................................................................................... 33

False statements

federal statute, materiality as issue for jury ................................................................... 109

Federalism

anti-commandeering rule .................................................................................................... 47

Gun-Free School Zones Act, invalidity ............................................................................. 119

principles reflected in commerce power analysis ................................................................ 7

state sovereign immunity, suits in federal court ............................................................. 122

INDEX 185

Federalism—Continued

Violence Against Women Act, invalidity .......................................................................... 119

First Amendment

expressive behavior, state authority to regulate, 21st Amdmt. ..................................... 149

Forfeiture

innocent joint owner, car used in prostitution ................................................................. 128

Government contractors

free speech rights ................................................................................................................. 65

Grandparents

right to visitation with grandchildren .............................................................................. 129

Grants

decency standard, funding for the arts .............................................................................. 68

Gun-Free School Zones Act

invalid exercise of commerce power ............................................................................. 6, 119

Guns

Brady Act, background checks, state enforcement .................................................... 47, 119

regulation, Second Amendment implications .................................................................... 85

Habeas corpus

Antiterrorism and Effective Death Penalty Act ................................................................ 43

claim of innocence, capital cases ....................................................................................... 117

statutory limitations ...................................................................................................... 41, 42

Harbor Maintenance Tax

constitutionality ................................................................................................................... 18

Hate crimes

sentence enhancement, need for proof beyond reasonable doubt .................................. 135

Homosexuals

Colorado constitutional amendment limiting local laws protecting ............................... 141

exclusion of avowed homosexual from Boy Scouts ............................................................ 64

Honoraria ban

government employees, free speech rights ......................................................................... 65

Immigration

deportation of illegal alien, selective enforcement no defense ......................................... 18

Immunity from suit

President, conduct prior to assuming office ....................................................................... 26

States, actions in state courts ........................................................................................... 124

States, congressional power to abrogate pursuant to 14th Amdmt. .............................. 144

States, federal court actions, Eleventh Amendment ....................................................... 121

Impeachment

judicial review of Senate trial, ‘‘political question’’ ........................................................... 27

Import-export clause

federal excise tax on insurance for exported goods ........................................................... 19

Indian Gaming Regulatory Act

invalidity, abrogation of state immunity in federal court .............................................. 122

Indigents

trial transcript necessary for appeal in parental rights case ......................................... 142

Injunctions

public demonstrations, First Amendment limitations ...................................................... 79

Judicial review

preclusion of review, military base closures ...................................................................... 24

Westfall Act, Federal Tort Claims Act ............................................................................... 27

Jury trial

civil, when required ........................................................................................................... 113

criminal, mixed questions of law and fact ....................................................................... 109

186 INDEX

Jury trial—Continued

when required, multiple petty offenses ............................................................................ 109

Limitations period

retroactive change, final judgments, unconstitutionality ................................................. 29

Line Item Veto Act

as delegation of power ........................................................................................................... 2

constitutionality, presentment clause .................................................................................. 4

standing of Members of Congress to challenge ................................................................. 35

Loitering

Chicago ordinance, lack of standards governing police discretion ................................. 133

Military justice

appointment of military judges ........................................................................................... 25

death penalty, President’s promulgation of standards ....................................................... 1

Miranda warning

constitutional underpinning ................................................................................................ 99

waiver of rights .................................................................................................................. 101

Mootness

appropriateness of vacatur as remedy ............................................................................... 37

Newsracks

use on public property, ban limited to commercial materials .......................................... 70

Nude dancing

First Amendment coverage ................................................................................................. 78

Parades

organizers, right to control parade message ...................................................................... 81

Parents

right to control care and custody of children ................................................................... 129

Political question

impeachment proceedings, judicial review .................................................................. 27, 38

Preemption

Burma sanctions, Mass. law’s conflict with federal objectives ......................................... 17

ERISA, express preemption language, conflict analysis ................................................... 16

Medical Device Amendments .............................................................................................. 14

National Traffic and Motor Vehicle Safety Act, state tort law ........................................ 15

Presentment Clause

Line Item Veto Act, violation of clause ................................................................................ 5

President

immunity from suit, conduct prior to assuming office ...................................................... 26

Press, freedom of

cable television ..................................................................................................................... 74

Prison Litigation Reform Act

automatic stay provisions, constitutionality ...................................................................... 31

restrictions on litigation ...................................................................................................... 31

Privileges and immunities of state citizenship

disparate state taxation of residents and nonresidents .................................................... 45

Privileges or immunities of national citizenship

durational residency requirements, welfare eligibility ................................................... 127

Prosecutorial misconduct

failure to disclose evidence, materiality ........................................................................... 134

Public television

candidate debates, access, First Amendment .................................................................... 79

Punitive damages

amount, due process constraints ....................................................................................... 131

Racial discrimination

affirmative action, federal legislation, strict scrutiny ..................................................... 137

INDEX 187

Racial discrimination—Continued

voting, 15th Amdmt., ancestry as proxy for race ............................................................ 147

Racial gerrymandering

‘‘bizarre’’ shape of congressional districts ........................................................................ 139

Religion: Establishment Clause

equal access of religious groups to school property ........................................................... 58

Lemon tests .......................................................................................................................... 49

prayer at public high school football games ...................................................................... 58

public funding for instructional materials for church schools .......................................... 56

public funding for sign-language interpreter in public schools ........................................ 55

religious displays on public property .................................................................................. 59

special school district for religious sect .............................................................................. 60

test for validity ..................................................................................................................... 50

Religion: Free Exercise

animal sacrifice .................................................................................................................... 61

Religious Freedom Restoration Act

constitutionality ........................................................................................................... 61, 144

Retroactivity

ex post facto laws ................................................................................................................. 20

extension of limitations period, effect on final judgments ................................................ 29

liability for past conduct, taking and due process implications ..................................... 103

Supreme Court ruling, cases still on direct review ........................................................... 38

tax legislation, due process ............................................................................................... 102

tax statutes, need for rational legislative purpose .......................................................... 102

Right to die

physician-assisted suicide, no due process right ............................................................. 130

Ripeness

challenges to administrative action .................................................................................... 36

regulatory taking claim, as-applied challenge ................................................................. 106

Search and seizure

‘‘knock and announce’’ rule ................................................................................................. 88

anonymous tip, uncorroborated .......................................................................................... 89

automobile stop, ordering passengers from car ................................................................. 89

definition of ‘‘seizure’’ .......................................................................................................... 87

drug testing of candidates for state office .......................................................................... 92

drug testing of public high school athletes ........................................................................ 91

frisk, ‘‘plain touch,’’ seizure of contraband ......................................................................... 89

reasonable suspicion, flight upon sight of police ............................................................... 89

traffic violation, pretextual stop ......................................................................................... 90

Self-Incrimination

consent directive, foreign bank accounts ........................................................................... 98

production of tax records ..................................................................................................... 98

Self-representation

no right on direct appeal from conviction ........................................................................ 111

Sentence enhancement

not additional punishment for double jeopardy purposes ................................................. 96

Sentencing

sentencing factors distinguished from elements of crime ............................................... 135

Separation of powers

automatic stays, Prison Litigation Reform Act ................................................................. 31

changed position of Justice Department ............................................................................ 23

delegation to President in role as Commander-in-Chief ..................................................... 2

legislative alteration of final judgments of courts ............................................................. 29

188 INDEX

Separation of powers—Continued

presidential immunity from suit ......................................................................................... 26

Sex discrimination

jury selection ...................................................................................................................... 138

military college ................................................................................................................... 138

Sexual predators

civil commitment ................................................................................................................ 129

Speech, commercial

beer labels, display of alcohol content ................................................................................ 69

cable television ..................................................................................................................... 74

compelled disclosure in advertising .................................................................................... 72

liquor ads, price information ............................................................................................... 71

reasonable fit between ends and means of regulation ...................................................... 70

Speech, freedom of

advertising restrictions ........................................................................................................ 71

anonymous advocacy ............................................................................................................ 82

ban on public nudity, ‘‘exotic’’ dancing ............................................................................... 78

federal support for arts, decency standard ........................................................................ 68

hate crimes, enhancement of criminal penalty .................................................................. 76

imposition of mandatory activity fee by public university ............................................... 63

in-person solicitation ............................................................................................................ 69

independent government contractors ........................................................................... 65, 66

parade organizers, right to control parade message ......................................................... 81

public demonstrations, injunctions ..................................................................................... 79

required disclosures by ballot-initiative petition circulators ............................................ 67

residential signs ................................................................................................................... 82

signs, use of utility poles ..................................................................................................... 82

Standing to sue

False Claims Act, qui tam actions ...................................................................................... 33

Members of Congress ........................................................................................................... 34

public contracts, challenge to affirmative action ............................................................... 33

redressability ........................................................................................................................ 33

statutory conferral, generalized grievance ......................................................................... 32

suit by organization on behalf of members ........................................................................ 34

Stare decisis

conflicting views of Justices ................................................................................................ 39

rejection of request to overrule Miranda .......................................................................... 100

State action

First Amendment limitation ............................................................................................... 62

predicate for exercise of 14th Amendment enforcement power ..................................... 143

States

immunity from suit in state courts .................................................................................. 124

immunity in federal courts, congressional power to abrogate ........................................ 121

residual sovereignty in constitutional structure ............................................................... 47

statehood, effect on Indian treaty rights to hunt and fish ............................................... 46

Submerged lands

Coeur d’Alene Tribe suit barred by Eleventh Amendment ............................................ 125

Suicide

no due process right to physician assistance ................................................................... 130

Taking of property

as-applied challenges, ripeness requirement ................................................................... 106

exaction conditions, development permits ....................................................................... 104

Taxation, Federal

excise tax, import-export clause .......................................................................................... 19

INDEX 189

Taxation, Federal—Continued

Harbor Maintenance Tax, Export Clause .......................................................................... 18

Taxation, State

apportionment, multinational corporation, franchise tax ................................................. 13

discrimination against interstate commerce ............................................................... 10, 11

privileges and immunities, nonresident taxation .............................................................. 45

salaries of federal judges, application of local occupation tax .......................................... 48

Term limits

Members of Congress, state-imposed limits ........................................................................ 2

Travel, right to

doctrinal shift to privileges or immunities analysis ........................................................ 127

three separate rights ......................................................................................................... 140

Twenty-first Amendment

authority of states, regulation of expressive behavior .................................................... 149

prohibition against liquor price advertising not shielded by .......................................... 149

Vacatur

remedy for mootness, limitations ........................................................................................ 37

Violence Against Women Act

invalid as exercise of 14th Amendment enforcement power .......................................... 143

invalid exercise of commerce power ..................................................................................... 8

Visitation rights

grandparents ...................................................................................................................... 129

Voting

Hawaii restriction based on ancestry, 15th Amendment ................................................ 147

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