[Senate Document 110-6]
[From the U.S. Government Publishing Office]





This publication supplements Senate Document 108-17, The Constitution of 
 the United States of America: Analysis and Interpretation--it should be 
 inserted into the pocket on the inside back cover of that volume


110th Congress                                                Document
 1st Session                  SENATE                          No. 110-6

------------------------------------------------------------------------
 
                          THE CONSTITUTION

                              OF THE

                     UNITED STATES OF AMERICA

                    ANALYSIS AND INTERPRETATION

                              -----

                          2006 SUPPLEMENT

                ANALYSIS OF CASES DECIDED BY THE SUPREME
              COURT OF THE UNITED STATES TO JUNE 29, 2006
                                                                        



           


                         Prepared by the

                    Congressional Research Service

                         Library of Congress


                         Kenneth R. Thomas

                          Editor-in-Chief

                            Henry Cohen

                           Managing Editor

                         Johnny H. Killian

                           Editor Emeritus

  

                   U.S. GOVERNMENT PRINTING OFFICE

35-687                    WASHINGTON : 2007
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                                ARTICLE I

Section 2. House of Representatives
Clause 1. Congressional Districting

                              CONGRESSIONAL DISTRICTING

[P. 112, add to n.299:]
            Vieth v. Jubelirer, 541 U.S. 267 (2004) (same); League of 
            United Latin American Citizens v. Perry, 126 S. Ct. 2594 
            (2006). Additional discussion of this issue appears under 
            Amendment 14, The New Equal Protection, Apportionment and 
            Districting.
Section 7. Bills and Resolutions
Clause 3. Presentation of Resolutions

                              THE LEGISLATIVE PROCESS'

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

                    The purpose of clause 3, the Orders, Resolutions, 
            and Votes Clause (ORV Clause), is not readily apparent. For 
            years it was assumed that the Framers inserted the clause to 
            prevent Congress from evading the veto clause by designating 
            as something other than a bill measures intended to take 
            effect as laws.\1\ Why a separate clause was needed for this 
            purpose has not been explained. Recent scholarship presents 
            a different possible explanation for the ORV Clause -- that 
            it was designed to authorize delegation of lawmaking power 
            to a single House, subject to presentment, veto, and 
            possible two-House veto override.\2\ If construed literally, 
            the clause could have bogged down the intermediate stages of 
            the legislative process, and Congress made practical 
            adjustments. At the request of the Senate, the Judiciary 
            Committee in 1897 published a comprehensive report detailing 
            how the clause had been interpreted over the years. Briefly, 
            it was shown that the word ``necessary'' in the clause had 
            come to refer to the necessity for law-making; that is, any 
            ``order, resolution, or vote'' must be submitted if it is to 
            have the force of law. But ``votes'' taken in either House 
            preliminary to the final passage of legislation need not be 
            submitted to the other House or to the President, nor must 
            concurrent resolutions merely expressing the views or 
            ``sense'' of the Congress.\3\
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                    \1\ See 2 M. Farrand, The Records of The Federal 
            Convention of 1787 (rev. ed. 1937), 301-302, 304-305; 2 
            Joseph Story, Commentaries on The Constitution of The United 
            States Sec.  889, at 335 (1833).
                    \2\ Seth Barrett Tillman, A Textualist Defense of 
            Art. I, Section 7, Clause 3: Why Hollingsworth v. Virginia 
            was Rightly Decided, and Why INS v. Chadha was Wrongly 
            Reasoned, 83 Tex. L. Rev. 1265 (2005).
                    \3\ S. Rep. No. 1335, 54th Congress, 2d Sess.; 4 
            Hinds' Precedents of The House of Representatives Sec.  3483 
            (1907).
---------------------------------------------------------------------------

                    Although the ORV Clause excepts only adjournment 
            resolutions and makes no explicit reference to resolutions 
            proposing constitutional amendments, the practice and 
            understanding, beginning with the Bill of Rights, have been 
            that resolutions proposing constitutional amendments need 
            not be presented to the President for veto or approval. 
            Hollingsworth v. Virginia,\4\ in which the Court rejected a 
            challenge to the validity of the Eleventh Amendment based on 
            the assertion that it had not been presented to the 
            President, is usually cited for the proposition that 
            presentation of constitutional amendment resolutions is not 
            required.\5\
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                    \4\ 3 U.S. (3 Dall.) 378 (1798).
                    \5\ Although Hollingsworth did not necessarily so 
            hold (see Tillman, supra), the Court has reaffirmed this 
            interpretation. See Hawke v. Smith, 253 U.S. 221, 229 (1920) 
            (in Hollingsworth ``this court settled that the submission 
            of a constitutional amendment did not require the action of 
            the President''); INS v. Chadha, 462 U.S. 919, 955 n.21 
            (1983) (in Hollingsworth the Court ``held Presidential 
            approval was unnecessary for a proposed constitutional 
            amendment'').
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Section 8. Powers of Congress
Clause 1. Power to Tax and Spend

                          SPENDING FOR THE GENERAL WELFARE

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

                    As with its other powers, Congress may enact 
            legislation ``necessary and proper'' to effectuate its 
            purposes in taxing and spending. In upholding a law making 
            it a crime to bribe state and local officials who administer 
            programs that receive federal funds, the Court declared that 
            Congress has authority ``to see to it that taxpayer dollars 
            . . . are in fact spent for the general welfare, and not 
            frittered away in graft or on projects undermined when funds 
            are siphoned off or corrupt public officers are derelict 
            about demanding value for dollars.'' \6\ Congress' failure 
            to require proof of a direct connection between the bribery 
            and the federal funds was permissible, the Court concluded, 
            because ``corruption does not have to be that limited to 
            affect the federal interest. Money is fungible, bribed 
            officials are untrustworthy stewards of federal funds, and 
            corrupt contractors do not deliver dollar-for-dollar 
            value.'' \7\
---------------------------------------------------------------------------

                    \6\ Sabri v. United States, 541 U.S. 600, 605 
            (2004).
                    \7\ 541 U.S. at 606.
---------------------------------------------------------------------------
--Conditional Grants-in-Aid
[P. 165, add to n.603:]
            This is not to say that Congress may police the 
            effectiveness of its spending only by means of attaching 
            conditions to grants; Congress may also rely on criminal 
            sanctions to penalize graft and corruption that may impede 
            its purposes in spending programs. Sabri v. United States, 
            541 U.S. 600 (2004).
[P. 166, add to n.608:]
            Arlington Central School Dist. Bd. of Educ. v. Murphy, 126 
            S. Ct. 2455 (2006) (because Individuals with Disabilities 
            Education Act, which was enacted pursuant to the Spending 
            Clause, does not furnish clear notice to states that 
            prevailing parents may recover fees for services rendered by 
            experts in IDEA actions, it does not authorize recovery of 
            such fees).
Clause 3. Commerce Power

                             POWER TO REGULATE COMMERCE

Definition of Terms
--Necessary and Proper Clause
[P. 175, add to n.665:]
            Gonzales v. Raich, 125 S. Ct. 2195 (2005).
[P. 175, add to text after n.665:]


            In other cases, the clause may not have been directly cited, 
            but the dictates of Chief Justice Marshall have been used to 
            justify more expansive applications of the commerce 
            power.\8\
---------------------------------------------------------------------------


                    \8\ See, e.g., United States v. Darby, 312 U.S. 100, 
            115-16 (1941).
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              THE COMMERCE CLAUSE AS A SOURCE OF NATIONAL POLICE POWER

Is There an Intrastate Barrier to Congress' Commerce Power.
[P. 212, substitute for second paragraph of section:]

                    Congress' commerce power has been characterized as 
            having three, or sometimes four, very interrelated 
            principles of decision, some old, some of recent vintage. 
            The Court in 1995 described ``three broad categories of 
            activity that Congress may regulate under its commerce 
            power. First, Congress may regulate the use of the channels 
            of interstate commerce. Second, Congress is empowered to 
            regulate and protect the instrumentalities of interstate 
            commerce, or persons or things in interstate commerce, even 
            though the threat may come only from intrastate activities. 
            Finally, Congress' commerce authority includes the power to 
            regulate those activities having a substantial relation to 
            interstate commerce, i.e., those activities that 
            substantially affect interstate commerce.'' \9\
---------------------------------------------------------------------------

                    \9\ United States v. Lopez, 514 U.S. 549, 558-59 
            (1995) (citations omitted). Illustrative of the power to 
            legislate to protect the channels and instrumentalities of 
            interstate commerce is Pierce County v. Guillen, 537 U.S. 
            129, 147 (2003), in which the Court upheld a prohibition on 
            the use in state or federal court proceedings of highway 
            data required to be collected by states on the basis that 
            ``Congress could reasonably believe that adopting a measure 
            eliminating an unforeseen side effect of the information-
            gathering requirement . . . would result in more diligent 
            efforts [by states] to collect the relevant information.''
---------------------------------------------------------------------------
[P. 218, add to text at end of section:]

                    Yet, the ultimate impact of these cases on the 
            Congress' power over commerce may be limited. In Gonzales v. 
            Raich,\10\ the Court reaffirmed an expansive application of 
            Wickard v. Filburn, and signaled that its jurisprudence is 
            unlikely to threaten the enforcement of broad regulatory 
            schemes based on the Commerce Clause. In Raich, the Court 
            considered whether the cultivation, distribution, or 
            possession of marijuana for personal medical purposes 
            pursuant to the California Compassionate Use Act of 1996 
            could be prosecuted under the federal Controlled Substances 
            Act (CSA).\11\ The respondents argued that this class of 
            activities should be considered as separate and distinct 
            from the drug-trafficking that was the focus of the CSA, and 
            that regulation of this limited non-commercial use of 
            marijuana should be evaluated separately.
---------------------------------------------------------------------------

                    \10\ 125 S. Ct. 2195 (2005).
                    \11\ 84 Stat. 1242, 21 U.S.C. Sec. Sec.  801 et seq.
---------------------------------------------------------------------------

                    In Raich, the Court declined the invitation to apply 
            the dictates of Lopez and Morrison to select applications of 
            a statute, holding that the Court would defer to Congress if 
            there was a rational basis to believe that regulation of 
            home-consumed marijuana would affect the market for 
            marijuana generally. The Court found that there was a 
            rational basis to believe that diversion of medicinal 
            marijuana into the illegal market would depress the price on 
            the latter market.\12\ The Court also had little trouble 
            finding that, even in application to medicinal marijuana, 
            the CSA was an economic regulation. Noting that the 
            definition of ``economics'' includes ``the production, 
            distribution, and consumption of commodities,'' \13\ the 
            Court found that prohibiting the intrastate possession or 
            manufacture of an article of commerce is a rational and 
            commonly used means of regulating commerce in that product.
---------------------------------------------------------------------------

                    \12\ 125 S. Ct. at 2206-09.
                    \13\ 125 S. Ct. at 2211, quoting Webster's Third New 
            International Dictionary 720 (1966).
---------------------------------------------------------------------------

                    The Court's decision also contained an intertwined 
            but potentially separate argument that the Congress had 
            ample authority under the Necessary and Proper Clause to 
            regulate the intrastate manufacture and possession of 
            controlled substances, because failure to regulate these 
            activities would undercut the ability of the government to 
            enforce the CSA generally.\14\ The Court quotes language 
            from Lopez that appears to authorize the regulation of such 
            activities on the basis that they are an essential part of a 
            regulatory scheme.\15\ Justice Scalia, in concurrence, 
            suggests that this latter category of activities could be 
            regulated under the Necessary and Proper Clause regardless 
            of whether the activity in question was economic or whether 
            it substantially affected interstate commerce.\16\
---------------------------------------------------------------------------

                    \14\ 125 S. Ct. at 2206, 2210, 2211
                    \15\ 125 S. Ct. at 2206-09.
                    \16\ 125 S. Ct. at 2216 (Scalia, J., concurring).
---------------------------------------------------------------------------
[P. 217, add to n.883:]
            Lopez did not ``purport to announce a new rule governing 
            Congress' Commerce Clause power over concededly economic 
            activity.'' Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 
            (2003).

                 THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS

Doctrinal Background
--Congressional Authorization of Impermissible State Action
[Pp. 228-229, substitute for second paragraph of section:]

                    The Court applied the ``original package'' doctrine 
            to interstate commerce in intoxicants, which the Court 
            denominated ``legitimate articles of commerce.'' \17\ 
            Although holding that a state was entitled to prohibit the 
            manufacture and sale of intoxicants within its boundaries, 
            \18\ it contemporaneously laid down the rule, in Bowman v. 
            Chicago & Northwestern Ry. Co., \19\ that, so long as 
            Congress remained silent in the matter, a state lacked the 
            power, even as part and parcel of a program of statewide 
            prohibition of the traffic in intoxicants, to prevent the 
            importation of liquor from a sister state. This holding was 
            soon followed by another to the effect that, so long as 
            Congress remained silent, a state had no power to prevent 
            the sale in the original package of liquors introduced from 
            another state.\20\ Congress soon attempted to overcome the 
            effect of the latter decision by enacting the Wilson 
            Act,\21\ which empowered states to regulate imported liquor 
            on the same terms as domestically produced liquor, but the 
            Court interpreted the law narrowly as subjecting imported 
            liquor to local authority only after its resale.\22\ 
            Congress did not fully nullify the Bowman case until 1913, 
            when it enacted of the Webb-Kenyon Act \23\ which clearly 
            authorized states to regulate direct shipments for personal 
            use.
---------------------------------------------------------------------------

                    \17\ The Court had developed the ``original 
            package'' doctrine to restrict application of a state tax on 
            imports from a foreign country in Brown v. Maryland, 25 U.S. 
            (12 Wheat.) 419, 449 (1827). Although Chief Justice Marshall 
            had indicated in dictum in Brown that the same rule would 
            apply to imports from sister states, the Court had refused 
            to follow that dictum in Woodruff v. Parham, 75 U.S. (8 
            Wall.) 123 (1869).
                    \18\ Mugler v. Kansas, 123 U.S. 623 (1887). Relying 
            on the distinction between manufacture and commerce, the 
            Court soon applied this ruling to authorize states to 
            prohibit manufacture of liquor for an out-of-state market. 
            Kidd v. Pearson, 128 U.S. 1 (1888).
                    \19\ 125 U.S. 465 (1888)
                    \20\ Leisy v. Hardin, 135 U.S. 100 (1890).
                    \21\ Ch. 728, 26 Stat. 313 (1890), upheld in In re 
            Rahrer, 140 U.S. 545 (1891).
                    \22\ Rhodes v. Iowa, 170 U.S. 412 (1898).
                    \23\ Ch. 90, 37 Stat. 699 (1913), sustained in Clark 
            Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917). See 
            also Department of Revenue v. Beam Distillers, 377 U.S. 341 
            (1964).
---------------------------------------------------------------------------

                    National Prohibition, imposed by the Eighteenth 
            Amendment, temporarily mooted these conflicts, but they 
            reemerged with repeal of Prohibition by the Twenty-first 
            Amendment. Section 2 of the Twenty-first Amendment prohibits 
            ``the importation into any State . . . for delivery or use 
            therein of intoxicating liquors, in violation of the laws 
            thereof.'' Initially the Court interpreted this language to 
            authorize states to discriminate against imported liquor in 
            favor of that produced in-state, but the modern Court has 
            rejected this interpretation, holding instead that ``state 
            regulation of alcohol is limited by the nondiscrimination 
            principle of the Commerce Clause.'' \24\
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                    \24\ Granholm v. Heald, 544 U.S. 460, 487 (2005). 
            See also Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984); 
            Brown-Forman Distillers Corp. v. New York State Liquor 
            Auth., 476 U.S. 573 (1986); Healy v. The Beer Institute, 491 
            U.S. 324 (1989), and the analysis of section 2 under 
            Discrimination Between Domestic and Imported Products.
---------------------------------------------------------------------------
[P. 231, add to n.954 after initial citation:]
            See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003) 
            (authorization of state laws regulating milk solids does not 
            authorize milk pricing and pooling laws).
State Taxation and Regulation: The Modern Law
--Taxation
[P. 246, add to n.1038:]
            But see American Trucking Ass'ns v. Michigan Pub. Serv. 
            Comm'n, 125 S. Ct. 2419 (2005), upholding imposition of a 
            flat annual fee on all trucks engaged in intrastate hauling 
            (including trucks engaged in interstate hauling that ``top 
            off'' loads with intrastate pickups and deliveries) and 
            concluding that levying the fee on a per-truck rather than 
            per-mile basis was permissible in view of the objectives of 
            defraying costs of administering various size, weight, 
            safety, and insurance requirements.
--Regulation
[P. 249, add to n.1051:]
            But cf. Pharmaceutical Research and Mfrs. of America v. 
            Walsh, 538 U.S. 644 (2003) (state prescription drug program 
            providing rebates to participating companies does not 
            regulate prices of out-of-state transactions and does not 
            favor in-state over out-of-state companies).
Foreign Commerce and State Powers
[P. 256, substitute for last two sentences of first full 
    paragraph:]


            The tax, it was found, did not impair federal uniformity or 
            prevent the Federal Government from speaking with one voice 
            in international trade, in view of the fact that Congress 
            had rejected proposals that would have preempted 
            California's practice.\25\ The result of the case, perhaps 
            intended, is that foreign corporations have less protection 
            under the negative commerce clause.\26\
---------------------------------------------------------------------------


                    \25\ Reliance could not be placed on Executive 
            statements, the Court explained, since ``the Constitution 
            expressly grants Congress, not the President, the power to 
            `regulate Commerce with foreign Nations.'' 512 U.S. at 329. 
            ``Executive Branch communications that express federal 
            policy but lack the force of law cannot render 
            unconstitutional California's otherwise valid, 
            congressionally condoned, use of worldwide combined 
            reporting.'' Id. at 330. Dissenting Justice Scalia noted 
            that, although the Court's ruling correctly restored 
            preemptive power to Congress, ``it permits the authority to 
            be exercised by silence.'' Id. at 332.
                    \26\ The Supreme Court, Leading Cases, 1993 Term, 
            108 Harv. L. Rev. 139, 139-49 (1993).
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                      CONCURRENT FEDERAL AND STATE JURISDICTION

The General Issue: Preemption
--The Standards Applied
[P. 262, add to n.1109:]
            Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit 
            brought against HMO under state health care liability act 
            for failure to exercise ordinary care when denying benefits 
            is preempted).
[P. 265, add to n.1118:]
            But cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) 
            (interpreting preemption language and saving clause in 
            Federal Boat Safety Act as not precluding a state common law 
            tort action).
[P. 266, add footnote at end of second line of text on the 
    page:]
            For a more recent decision applying express preemption 
            language to a variety of state common law claims, see Bates 
            v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (interpreting 
            FIFRA, the federal law governing pesticides).

                             COMMERCE WITH INDIAN TRIBES

[P. 278, add to n.1189:]
            United States v. Lara, 541 U.S. 193, 200 (2004).
[P. 281, add to n.1206:]
            Congress may also remove restrictions on tribal sovereignty. 
            The Court has held that, absent authority from federal 
            statute or treaty, tribes possess no criminal authority over 
            non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 
            191 (1978). The Court also held, in Duro v. Reina, 495 U.S. 
            676 (1990), that a tribe has no criminal jurisdiction over 
            non-tribal Indians who commit crimes on the reservation; 
            jurisdiction over members rests on consent of the self-
            governed, and absence of consent defeats jurisdiction. 
            Congress, however, quickly enacted a statute recognizing 
            inherent authority of tribal governments to exercise 
            criminal jurisdiction over non-member Indians, and the Court 
            upheld congressional authority to do so in United States v. 
            Lara, 541 U.S. 193 (2004).
Clause 8. Copyrights and Patents
Scope of the Power
[P. 312, substitute for sentence ending with n.1421:]


            These English statutes curtailed the royal prerogative in 
            the creation and bestowal of monopolistic privileges, and 
            the Copyright and Patent Clause similarly curtails 
            congressional power with regard both to subject matter and 
            to the purpose and duration of the rights granted.\27\
---------------------------------------------------------------------------


                    \27\ Graham v. John Deere Co., 383 U.S. 1, 5, 9 
            (1966).
---------------------------------------------------------------------------
[P. 313, convert final sentence of paragraph to a separate 
    paragraph and place it after the following new paragraph 
    to be added at end of section:]

                    The constitutional limits, however, do not prevent 
            the Court from being highly deferential to congressional 
            exercise of its power. ``It is Congress that has been 
            assigned the task of defining the scope of the limited 
            monopoly that should be granted to authors,'' the Court has 
            said.\28\ ``Satisfied'' in Eldred v. Ashcroft that the 
            Copyright Term Extension Act did not violate the ``limited 
            times'' prescription, the Court saw the only remaining 
            question as whether the enactment was ``a rational exercise 
            of the legislative authority conferred by the Copyright 
            Clause.'' \29\ The Act, the Court concluded, ``reflects 
            judgments of a kind Congress typically makes, judgments we 
            cannot dismiss as outside the Legislature's domain.'' 
            Moreover, the limitation on the duration of copyrights and 
            patents is largely unenforceable. The protection period may 
            extend well beyond the life of the author or inventor.\30\ 
            Congress may extend the duration of existing copyrights and 
            patents, and in so doing may protect the rights of 
            purchasers and assignees.\31\
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                    \28\ Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) 
            (quoting Sony Corp. of America v. Universal City Studios, 
            464 U.S. 417, 429 (1984)).
                    \29\ 537 U.S. at 204.
                    \30\ The Court in Eldred upheld extension of the 
            term of existing copyrights from life of the author plus 50 
            years to life of the author plus 70 years. Although the more 
            general issue was not raised, the Court opined that this 
            length of time, extendable by Congress, was ``clearly'' not 
            a regime of ``perpetual'' copyrights. The only two 
            dissenting Justices, Stevens and Breyer, challenged this 
            assertion.
                    \31\ Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); 
            Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 548 (1852); 
            Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864); 
            Eunson v. Dodge, 85 U.S. (18 Wall.) 414, 416 (1873).
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Nature and Scope of the Right Secured
[P. 316, substitute for first paragraph of section:]

                    The leading case on the nature of the rights that 
            Congress is authorized to ``secure'' under the Copyright and 
            Patent Clause is Wheaton v. Peters.\32\ Wheaton was the 
            official reporter for the Supreme Court from 1816 to 1827, 
            and Peters was his successor in that role. Wheaton charged 
            Peters with having infringed his copyright in the twelve 
            volumes of ``Wheaton's Reports'' by reprinting material from 
            Wheaton's first volume in ``a volume called `Condensed 
            Reports of Cases in the Supreme Court of the United 
            States'''; \33\ Wheaton based his claim on both common law 
            and a 1790 act of Congress. On the statutory claim, the 
            Court remanded to the trial court for a determination of 
            whether Wheaton had complied with all the requirements of 
            the act.\34\ On the common law claim, the Court held for 
            Peters, finding that, under common law, publication divests 
            an author of copyright protection. Wheaton argued that the 
            Constitution should be held to protect his common law 
            copyright, because ``the word secure . . . clearly indicates 
            an intention, not to originate a right, but to protect one 
            already in existence.'' \35\ The Court found, however, that 
            ``the word secure, as used in the constitution, could not 
            mean the protection of an acknowledged legal right,'' but 
            was used ``in reference to a future right.'' \36\ Thus, the 
            exclusive right that the Constitution authorizes Congress to 
            ``secure'' to authors and inventors owes its existence 
            solely to acts of Congress that secure it, from which it 
            follows that the rights granted by a patent or copyright are 
            subject to such qualifications and limitations as Congress 
            sees fit to impose.\37\
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                    \32\ 33 U.S. (8 Pet.) 591 (1834).
                    \33\ 33 U.S. (8 Pet.) at 595.
                    \34\ 33 U.S. (8 Pet.) at 667.
                    \35\ 33 U.S. (8 Pet.) at 661; Holmes v. Hurst, 174 
            U.S. 82 (1899). The doctrine of common-law copyright was 
            long statutorily preserved for unpublished works, but the 
            1976 revision of the federal copyright law abrogated the 
            distinction between published and unpublished works, 
            substituting a single federal system for that existing since 
            the first copyright law in 1790. 17 U.S.C. Sec.  301.
                    \36\ 33 U.S. (8 Pet.) at 661.
                    \37\ 33 U.S. (8 Pet.) at 662; Evans v. Jordan, 13 
            U.S. (9 Cr.) 199 (1815). A major limitation of copyright law 
            is that ``fair use'' of a copyrighted work is not an 
            infringement. Fair use can involve such things as quotation 
            for the use of criticism and reproduction for classroom 
            purposes, but it may not supersede the use of the original 
            work. See Harper & Row, Publishers v. Nation Enterprises, 
            471 U.S. 539 (1985) (an unauthorized 300- to 400-word 
            excerpt, published as a news ``scoop'' of the authorized 
            prepublication excerpt of former President Ford's memoirs 
            and substantially affecting the potential market for the 
            authorized version, was not a fair use within the meaning of 
            Sec.  107 of the Copyright Act. 17 U.S.C. Sec.  107). For 
            fair use in the context of a song parody, see Campbell v. 
            Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
---------------------------------------------------------------------------
[P. 317, add to n.1448:]
            Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 
            U.S. 913 (2005) (active encouragement of infringement by 
            distribution of software for sharing of copyrighted music 
            and video files can constitute infringement).
Clauses 11, 12, 13, and 14. War; Military Establishment

                          CONSTITUTIONAL RIGHTS IN WARTIME

The Constitution at Home in Wartime
--Enemy Aliens
[P. 347, add to text at end of section:]


            Because this use of military tribunals was sanctioned by 
            Congress, the Court found it unnecessary to decide whether 
            ``the President may constitutionally convene military 
            commissions `without the sanction of Congress' in cases of 
            `controlling necessity.''' \38\
---------------------------------------------------------------------------


                    \38\ Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 
            (2006). But see, id. at 2773 (``Exigency alone, of course, 
            will not justify the establishment and use of penal 
            tribunals not contemplated by Article I, Sec.  8 and Article 
            III, Sec.  1 of the Constitution unless some other part of 
            that document authorizes a response to the felt need.'').
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Clause 18. Necessary and Proper Clause
Scope of Incidental Powers
[P. 357, substitute for first sentence of section:]

                    The Necessary and Proper Clause, sometimes called 
            the ``coefficient'' or ``elastic'' clause, is an 
            enlargement, not a constriction, of the powers expressly 
            granted to Congress. Chief Justice Marshall's classic 
            opinion in McCulloch v. Maryland \39\ set the standard in 
            words that reverberate to this day.
---------------------------------------------------------------------------

                    \39\ 17 U.S. (4 Wheat.) 316 (1819).
---------------------------------------------------------------------------
Operation of Clause
[P. 358, add to n.1734:]
            Congress may also legislate to protect its spending power. 
            Sabri v. United States, 541 U.S. 600 (2004) (upholding 
            imposition of criminal penalties for bribery of state and 
            local officials administering programs receiving federal 
            funds).
Courts and Judicial Proceedings
[P. 361, add clause in text after n.1759:]


            may require the tolling of a state statute of limitations 
            while a state cause of action that is supplemental to a 
            federal claim is pending in federal court,\40\
---------------------------------------------------------------------------


                    \40\ Jinks v. Richland County, 538 U.S. 456 (2003).
---------------------------------------------------------------------------
Section 10 -- Powers Denied to States
Clause 1. Making Treaties, Coining Money, Ex Post Facto 
    Laws, Impairing Contracts
Ex Post Facto Laws
--Scope of the Provision
[P. 382, add to text after n.1912:]

                    Distinguishing between civil and penal laws was at 
            the heart of the Court's decision in Smith v. Doe \41\ 
            upholding application of Alaska's ``Megan's Law'' to sex 
            offenders who were convicted before the law's enactment. The 
            Alaska law requires released sex offenders to register with 
            local police and also provides for public notification via 
            the Internet. The Court accords ``considerable deference'' 
            to legislative intent; if the legislature's purpose was to 
            enact a civil regulatory scheme, then the law can be ex post 
            facto only if there is ``the clearest proof'' of punitive 
            effect.\42\ Here, the Court determined, the legislative 
            intent was civil and non-punitive -- to promote public 
            safety by ``protecting the public from sex offenders.'' The 
            Court then identified several ``useful guideposts'' to aid 
            analysis of whether a law intended to be non-punitive 
            nonetheless has punitive effect. Registration and public 
            notification of sex offenders are of recent origin, and are 
            not viewed as a ``traditional means of punishment.'' \43\ 
            The Act does not subject the registrants to an ``affirmative 
            disability or restraint''; there is no physical restraint or 
            occupational disbarment, and there is no restraint or 
            supervision of living conditions, as there can be under 
            conditions of probation. The fact that the law might deter 
            future crimes does not make it punitive. All that is 
            required, the Court explained, is a rational connection to a 
            non-punitive purpose, and the statute need not be narrowly 
            tailored to that end.\44\ Nor is the act ``excessive'' in 
            relation to its regulatory purpose.\45\ Rather, ``the means 
            chosen are `reasonable' in light of the [state's] non-
            punitive objective'' of promoting public safety by giving 
            its citizens information about former sex offenders, who, as 
            a group, have an alarmingly high rate of recidivism.\46\
---------------------------------------------------------------------------

                    \41\ 538 U.S. 84 (2003).
                    \42\ 538 U.S. at 92.
                    \43\ The law's requirements do not closely resemble 
            punishments of public disgrace imposed in colonial times; 
            the stigma of Megan's Law results not from public shaming 
            but from the dissemination of information about a criminal 
            record, most of which is already public. 538 U.S. at 98.
                    \44\ 538 U.S. at 102.
                    \45\ Excessiveness was alleged to stem both from the 
            law's duration (15 years of notification by those convicted 
            of less serious offenses; lifetime registration by serious 
            offenders) and in terms of the widespread (Internet) 
            distribution of the information.
                    \46\ 538 U.S. at 105. Unlike involuntary civil 
            commitment, where the ``magnitude of restraint [makes] 
            individual assessment appropriate,'' the state may make 
            ``reasonable categorical judgments,'' and need not provide 
            individualized determinations of dangerousness. Id. at 103.
---------------------------------------------------------------------------
--Changes in Punishment
[P. 383, substitute for first sentence of section:]

                    Justice Chase in Calder v. Bull gave an alternative 
            description of the four categories of ex post facto laws, 
            two of which related to punishment. One such category was 
            laws that inflict punishment ``where the party was not, by 
            law, liable to any punishment''; the other was laws that 
            inflict greater punishment than was authorized when the 
            crime was committed.\47\
---------------------------------------------------------------------------

                    \47\ 3 U.S. (3 Dall.) 386, 389 (1798).
---------------------------------------------------------------------------

                    Illustrative of the first of these punishment 
            categories is ``a law enacted after expiration of a 
            previously applicable statute of limitations period [as] 
            applied to revive a previously time-barred prosecution.'' 
            Such a law, the Court ruled in Stogner v. California,\48\ is 
            prohibited as ex post facto. Courts that had upheld 
            extension of unexpired statutes of limitation had been 
            careful to distinguish situations in which the limitations 
            periods have expired. The Court viewed revival of criminal 
            liability after the law had granted a person ``effective 
            amnesty'' as being ``unfair'' in the sense addressed by the 
            Ex Post Facto Clause.
---------------------------------------------------------------------------

                    \48\ 539 U.S. 607, 632-33 (2003) (invalidating 
            application of California's law to revive child abuse 
            charges 22 years after the limitations period had run for 
            the alleged crimes).
---------------------------------------------------------------------------

                    Illustrative of the second punishment category are 
            statutes that changed an indeterminate sentence law to 
            require a judge to impose the maximum sentence,\49\ that 
            required solitary confinement for prisoners previously 
            sentenced to death,\50\ and that allowed a warden to fix, 
            within limits of one week, and keep secret the time of 
            execution.\51\
---------------------------------------------------------------------------

                    \49\ Lindsey v. Washington, 301 U.S. 397 (1937). But 
            note the limitation of Lindsey in Dobbert v. Florida, 432 
            U.S. 282, 298-301 (1977).
                    \50\ Holden v. Minnesota, 137 U.S. 483, 491 (1890).
                    \51\ Medley, Petitioner, 134 U.S. 160, 171 (1890).











                               ARTICLE II

Section 1. The President
Clause 1. Powers and Term of the President.

                       NATURE AND SCOPE OF PRESIDENTIAL POWER

--The Youngstown Case
[P. 442, add to n.40:]
            And, in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 n.23 
            (2006), the Court cited Youngstown with approval, as did 
            Justice Kennedy, in a concurring opinion joined by three 
            other Justices, id. at 2800.
Section 2. Powers and Duties of the President
Clause 1. Commander-in-Chiefship; Presidential Advisers; 
    Pardons

                                 COMMANDER-IN-CHIEF

Martial Law and Constitutional Limitations
[P. 483, add new section after ``Articles of War: World War 
    II Crimes'':]
--Articles of War: Response to the Attacks of September 11, 
    2001

                    In response to the September 11, 2001 terrorist 
            attacks on New York City's World Trade Center and the 
            Pentagon in Washington, D.C., Congress passed the 
            Authorization for Use of Military Force,\1\ which provided 
            that the President may use ``all necessary and appropriate 
            force against those nations, organizations, or persons he 
            determines planned, authorized, committed or aided the 
            terrorist attacks [or] harbored such organizations or 
            persons.'' During a military action in Afghanistan pursuant 
            to this authorization, a United States citizen, Yaser Hamdi, 
            was taken prisoner. The Executive Branch argued that it had 
            plenary authority under Article II to hold such an ``enemy 
            combatant'' for the duration of hostilities, and to deny him 
            meaningful recourse to the federal courts. In Hamdi v. 
            Rumsfeld, the Court agreed that the President was authorized 
            to detain a United States citizen seized in Afghanistan, 
            although a majority of the Court appeared to reject the 
            notion that such power was inherent in the Presidency, 
            relying instead on statutory grounds.\2\ However, the Court 
            did find that the government may not detain the petitioner 
            indefinitely for purposes of interrogation, without giving 
            him the opportunity to offer evidence that he is not an 
            enemy combatant.\3\
---------------------------------------------------------------------------

                    \1\ Pub. L. 107-40, 115 Stat. 224 (2001).
                    \2\ Hamdi v. Rumsfeld, 542 U.S. 507 (2004). There 
            was no opinion of the Court. Justice O'Connor, joined by 
            Chief Justice Rehnquist, Justice Kennedy and Justice Breyer, 
            avoided ruling on the Executive Branch argument that such 
            detentions could be authorized by its Article II powers 
            alone, and relied instead on the ``Authorization for Use of 
            Military Force'' passed by Congress. Justice Thomas also 
            found that the Executive Branch had the power to detain the 
            petitioner, although his dissenting opinion found that such 
            detentions were authorized by Article II. Justice Souter, 
            joined by Justice Ginsberg, rejected the argument that the 
            Congress had authorized such detentions, while Justice 
            Scalia, joined with Justice Stevens, denied that such 
            congressional authorization was possible without a 
            suspension of the writ of habeas corpus.
                    \3\ At a minimum, the petitioner must be given 
            notice of the asserted factual basis for holding him, must 
            be given a fair chance to rebut that evidence before a 
            neutral decision maker, and must be allowed to consult an 
            attorney. 542 U.S. at 533, 539.
---------------------------------------------------------------------------

                    In Rasul v. Bush,\4\ the Court rejected an Executive 
            Branch argument that foreign prisoners being held at 
            Guantanamo Bay, Cuba were outside of federal court 
            jurisdiction. The Court distinguished earlier case law 
            arising during World War II that denied habeas corpus 
            petitions from German citizens who had been captured and 
            tried overseas by United States military tribunals.\5\ In 
            Rasul, the Court noted that the Guantanamo petitioners were 
            not citizens of a country at war with the United States,\6\ 
            had not been afforded any form of tribunal, and were being 
            held in a territory over which the United States exercised 
            exclusive jurisdiction and control.\7\ In addition, the 
            Court found that statutory grounds existed for the extension 
            of habeas corpus to these prisoners.\8\
---------------------------------------------------------------------------

                    \4\ 542 U.S. 466 (2004).
                    \5\ Johnson v. Eisentrager, 339 U.S. 763, 789 
            (1950).
                    \6\ The petitioners were Australians and Kuwaitis.
                    \7\ Rasul v. Bush, 542 U.S. at 467.
                    \8\ The Court found that 28 U.S.C. Sec.  2241, which 
            had previously been construed to require the presence of a 
            petitioner in a district court's jurisdiction, was now 
            satisfied by the presence of a jailor-custodian. See Braden 
            v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973). 
            Another ``enemy combatant'' case, this one involving an 
            American citizen arrested on American soil, was remanded 
            after the Court found that a federal court's habeas 
            jurisdiction under 28 U.S.C. Sec.  2241 was limited to 
            jurisdiction over the immediate custodian of a petitioner. 
            Rumsfeld v. Padilla, 542 U.S. 426 (2004) (federal court's 
            jurisdiction over Secretary of Defense Rumsfeld was not 
            sufficient to satisfy the presence requirement under 28 
            U.S.C. Sec.  2241).
---------------------------------------------------------------------------
Clause 2. Treaties and Appointment of Officers

                               THE TREATY-MAKING POWER

Treaties as Law of the Land
[P. 494, add to text after n.271:]


            The meaning of treaties, as of statutes, is determined by 
            the courts. ``If treaties are to be given effect as federal 
            law under our legal system, determining their meaning as a 
            matter of federal law `is emphatically the province and duty 
            of the judicial department,' headed by the `one supreme 
            Court' established by the Constitution.'' \9\ In addition, 
            ``[w]hile courts interpret treaties for themselves, the 
            meaning given them by the departments of government 
            particularly charged with their negotiation and enforcement 
            is given great weight.''' \10\ Decisions of the 
            International Court of Justice (ICJ) interpreting treaties, 
            however, have ``no binding force except between the parties 
            and in respect of that particular case.'' \11\ ICJ decisions 
            ``are therefore entitled only to the `respectful 
            consideration' due an interpretation of an international 
            agreement by an international court.'' \12\
---------------------------------------------------------------------------


                    \9\ Sanchez-Llamas v. Oregon,126 S. Ct. 2669, 2684 
            (2006), quoting Marbury v. Madison, 5 U.S. (1 Cr.) 137, 177 
            (1803). In Sanchez-Llamas, two foreign nationals were 
            arrested in the United States, and, in violation of Article 
            36 of the Vienna Convention on Consular Relations, their 
            nations' consuls were not notified that they had been 
            detained by authorities in a foreign country (the U.S.). The 
            foreign nationals were convicted in Oregon and Virginia 
            state courts, respectively, and cited the violations of 
            Article 36 in challenging their convictions. The Court did 
            not decide whether Article 36 grants rights that may be 
            invoked by individuals in a judicial proceeding (four 
            justices would have held that it did grant such rights). The 
            reason that the Court did not decide whether Article 36 
            grants rights to defendants was that it held, by a 6-to-3 
            vote, that, even if Article 36 does grant rights, the 
            defendants in the two cases before it were not entitled to 
            relief on their claims. It found, specifically, that 
            ``suppression of evidence is [not] a proper remedy for a 
            violation of Article 36,'' and that ``an Article 36 claim 
            may be deemed forfeited under state procedural rules because 
            a defendant failed to raise the claim at trial.'' Id. at 
            2677.
                    \10\ Sanchez-Llamas v. Oregon, 126 S. Ct. at 2685, 
            quoting Kolovrat v. Oregon, 366 U.S. 187, 194 (1961).
                    \11\ Sanchez-Llamas v. Oregon, 126 S. Ct. at 2684, 
            quoting Statute of the International Court of Justice, Art. 
            59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by 
            the Court).
                    \12\ Sanchez-Llamas v. Oregon, 126 S. Ct. at 2685, 
            quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per 
            curiam).
---------------------------------------------------------------------------

                  INTERNATIONAL AGREEMENTS WITHOUT SENATE APPROVAL

The Domestic Obligation of Executive Agreements
[P. 527, substitute for first sentence of first full 
    paragraph on page:]

                    Initially, it was the view of most judges and 
            scholars that executive agreements based solely on 
            presidential power did not become the ``law of the land'' 
            pursuant to the Supremacy Clause because such agreements are 
            not ``treaties'' ratified by the Senate.\13\ The Supreme 
            Court, however, found another basis for holding state laws 
            to be preempted by executive agreements, ultimately relying 
            on the Constitution's vesting of foreign relations power in 
            the national government.
---------------------------------------------------------------------------

                    \13\ E.g., United States v. One Bag of Paradise 
            Feathers, 256 F. 301, 306 (2d Cir. 1919); 1 W. Willoughby, 
            supra, at 589. The State Department held the same view. 5 G. 
            Hackworth, Digest of International Law 426 (1944).
---------------------------------------------------------------------------
[P. 529, substitute for last paragraph of section:]

                    Belmont and Pink were reinforced in American 
            Insurance Association v. Garamendi.\14\ In holding that 
            California's Holocaust Victim Insurance Relief Act was 
            preempted as interfering with the Federal Government's 
            conduct of foreign relations, as expressed in executive 
            agreements, the Court reiterated that ``valid executive 
            agreements are fit to preempt state law, just as treaties 
            are.'' \15\ The preemptive reach of executive agreements 
            stems from ``the Constitution's allocation of the foreign 
            relations power to the National Government.'' \16\ Because 
            there was a ``clear conflict'' between the California law 
            and policies adopted through the valid exercise of federal 
            executive authority (settlement of Holocaust-era insurance 
            claims being ``well within the Executive's responsibility 
            for foreign affairs''), the state law was preempted.\17\
---------------------------------------------------------------------------

                    \14\ 539 U.S. 396 (2003). The Court's opinion in 
            Dames & Moore v. Regan, 453 U.S. 654 (1981), was rich in 
            learning on many topics involving executive agreements, but 
            the preemptive force of agreements resting solely on 
            presidential power was not at issue, the Court concluding 
            that Congress had either authorized various presidential 
            actions or had long acquiesced in others.
                    \15\ 539 U.S. at 416.
                    \16\ 539 U.S. at 413.
                    \17\ 539 U.S. at 420.
---------------------------------------------------------------------------
[P. 529, add new section after ``The Domestic Obligation of 
    Executive Agreements'':]
State Laws Affecting Foreign Relations -- Dormant Federal 
    Power and Preemption

                    If the foreign relations power is truly an exclusive 
            federal power, with no role for the states, a logical 
            consequence, the Supreme Court has held, is that some state 
            laws impinging on foreign relations are invalid even in the 
            absence of a relevant federal policy. There is, in effect, a 
            ``dormant'' foreign relations power. The scope of this power 
            remains undefined, however, and its constitutional basis is 
            debated by scholars.

                    The exclusive nature of the federal foreign 
            relations power has long been asserted by the Supreme Court. 
            In 1840, for example, the Court declared that ``it was one 
            of the main objects of the constitution to make us, so far 
            as regarded our foreign relations, one people, and one 
            nation; and to cut off all communications between foreign 
            governments, and the several state authorities.'' \18\ A 
            hundred years later the Court remained emphatic about 
            federal exclusivity. ``No State can rewrite our foreign 
            policy to conform to its own domestic policies. Power over 
            external affairs is not shared by the States; it is vested 
            in the national government exclusively. It need not be so 
            exercised as to conform to State laws or State policies, 
            whether they be expressed in constitutions, statutes, or 
            judicial decrees. And the policies of the States become 
            wholly irrelevant to judicial inquiry when the United 
            States, acting within its constitutional sphere, seeks 
            enforcement of its foreign policy in the courts.'' \19\
---------------------------------------------------------------------------

                    \18\ Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575-
            76 (1840). See also United States v. Belmont, 301 U.S. 324, 
            331 (1937) (``The external powers of the United States are 
            to be exercised without regard to state laws or policies. . 
            . . [I]n respect of our foreign relations generally, state 
            lines disappear''); The Chinese Exclusion Case, 130 U.S. 
            581, 606 (1889) (``For local interests the several States of 
            the Union exist; but for national purposes, embracing our 
            relations with foreign nations, we are but one people, one 
            nation, one power''); Hines v. Davidowitz, 312 U.S. 52, 63 
            (1941) (``Our system of government . . . requires that 
            federal power in the field affecting foreign relations be 
            left entirely free from local interference'').
                    \19\ United States v. Pink, 315 U.S. 203, 233-34 
            (1942). Chief Justice Stone and Justice Roberts dissented.
---------------------------------------------------------------------------

                    It was not until 1968, however, that the Court 
            applied the general principle to invalidate a state law for 
            impinging on the nation's foreign policy interests in the 
            absence of an established federal policy. In Zschernig v. 
            Miller,\20\ the Court invalidated an Oregon escheat law that 
            operated to prevent inheritance by citizens of Communist 
            countries. The law conditioned inheritance by nonresident 
            aliens on a showing that U.S. citizens would be allowed to 
            inherit estates in the alien's country, and that the alien 
            heir would be allowed to receive payments from the Oregon 
            estate ``without confiscation.'' \21\ Although a Justice 
            Department amicus brief asserted that application of the 
            Oregon law in this one case would not cause any ``undu[e] 
            interfer[ence] with the United States' conduct of foreign 
            relations,'' the Court saw a ``persistent and subtle'' 
            effect on international relations stemming from the 
            ``notorious'' practice of state probate courts in denying 
            payments to persons from Communist countries.\22\ Regulation 
            of descent and distribution of estates is an area 
            traditionally regulated by states, but such ``state 
            regulations must give way if they impair the effective 
            exercise of the Nation's foreign policy.'' If there are to 
            be travel, probate, or other restraints on citizens of 
            Communist countries, the Court concluded, such restraints 
            ``must be provided by the Federal Government.'' \23\
---------------------------------------------------------------------------

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

                    Zschernig lay dormant for some time, and, although 
            it has been addressed recently by the Court, it remains the 
            only holding in which the Court has applied a dormant 
            foreign relations power to strike down state law. There was 
            renewed academic interest in Zschernig in the 1990s, as some 
            state and local governments sought ways to express 
            dissatisfaction with human rights policies of foreign 
            governments or to curtail trade with out-of-favor 
            countries.\24\ In 1999, the Court struck down Massachusetts' 
            Burma sanctions law on the basis of statutory preemption, 
            and declined to address the appeals court's alternative 
            holding applying Zschernig.\25\ Similarly, in 2003 the Court 
            held that California's Holocaust Victim Insurance Relief Act 
            was preempted as interfering with federal foreign policy 
            reflected in executive agreements, and, although the Court 
            discussed Zschernig at some length, it saw no need to 
            resolve issues relating to its scope.\26\
---------------------------------------------------------------------------

                    \24\ See, e.g., Michael D. Ramsey, The Power of the 
            States in Foreign Affairs: The Original Understanding of 
            Foreign Policy Federalism, 75 Notre Dame L. Rev. 341 (1999); 
            Carlos Manuel Vazquez, Whither Zschernig? 46 Vill. L. Rev. 
            1259 (2001); Jack L. Goldsmith, Federal Courts, Foreign 
            Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997); Peter 
            J. Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 
            1223 (1999). See also Louis Henkin, Foreign Affairs And The 
            Constitution 149-69 (2d ed. 1996).
                    \25\ Crosby v. National Foreign Trade Council, 530 
            U.S. 363, 374 n.8 (1999). For the appeals court's 
            application of Zschernig, see National Foreign Trade Council 
            v. Natsios, 181 F.3d 38, 49-61 (1st Cir. 1999).
                    \26\ American Insurance Association v. Garamendi, 
            539 U.S. at 419 & n.11 (2003).
---------------------------------------------------------------------------

                    Dictum in Garamendi recognizes some of the questions 
            that can be raised about Zschernig. The Zschernig Court did 
            not identify what language in the Constitution mandates 
            preemption, and commentators have observed that a 
            respectable argument can be made that the Constitution does 
            not require a general foreign affairs preemption not tied to 
            the Supremacy Clause, and broader than and independent of 
            the Constitution's specific prohibitions \27\ and grants of 
            power.\28\ The Garamendi Court raised ``a fair question 
            whether respect for the executive foreign relations power 
            requires a categorical choice between the contrasting 
            theories of field and conflict preemption evident in the 
            Zschernig opinions.'' Instead, Justice Souter suggested for 
            the Court in Garamendi, field preemption may be appropriate 
            if a state legislates ``simply to take a position on a 
            matter of foreign policy with no serious claim to be 
            addressing a traditional state responsibility,'' and 
            conflict preemption may be appropriate if a state legislates 
            within an area of traditional responsibility, ``but in a way 
            that affects foreign relations.'' \29\ We must await further 
            litigation to see whether the Court employs this 
            distinction.\30\
---------------------------------------------------------------------------

                    \27\ It is contended, for example, that Article I, 
            Sec.  10's specific prohibitions against states' engaging in 
            war, making treaties, keeping troops in peacetime, and 
            issuing letters of marque and reprisal would have been 
            unnecessary if a more general, dormant foreign relations 
            power had been intended. Similarly, there would have been no 
            need to declare treaties to be the supreme law of the land 
            if a more generalized foreign affairs preemptive power 
            existed outside of the Supremacy Clause. See Ramsey, supra, 
            75 Notre Dame L. Rev. 341.
                    \28\ Arguably, part of the ``executive power'' 
            vested in the President by Art. II, Sec.  1 is a power to 
            conduct foreign relations.
                    \29\ 539 U.S. at 419 n.11.
                    \30\ Justice Ginsburg's dissent in Garamendi, joined 
            by the other three dissenters, suggested limiting Zschernig 
            in a manner generally consistent with Justice Souter's 
            distinction. Zschernig preemption, Justice Ginsburg 
            asserted, ``resonates most audibly when a state action 
            `reflects a state policy critical of foreign governments and 
            involve[s] sitting in judgment on them.''' 539 U.S. at 439 
            (quoting Henkin, supra n.24, at 164). But Justice Ginsburg 
            also voiced more general misgivings about judges' becoming 
            ``the expositors of the Nation's foreign policy.'' Id. at 
            442. In this context, see Goldsmith, supra n.24, at 1631, 
            describing Zschernig preemption as ``a form of the federal 
            common law of foreign relations.''
---------------------------------------------------------------------------

                             THE EXECUTIVE ESTABLISHMENT

Appointments and Congressional Regulation of Offices
--Congressional Regulation of Conduct in Office
[P. 540, substitute for final paragraph of section:]

                    Until 1993, Sec.  9(a) of the Hatch Act \31\ 
            prohibited any person in the executive branch, or any 
            executive branch department or agency, except the President 
            and the Vice President and certain ``policy determining'' 
            officers, to ``take an active part in political management 
            or political campaigns,'' although employees had been 
            permitted to ``express their opinions on all political 
            subjects and candidates.'' In United Public Workers v. 
            Mitchell,\32\ these provisions were upheld as ``reasonable'' 
            against objections based on the First, Fifth, Ninth, and 
            Tenth Amendments. The Hatch Act Reform Amendments of 1993, 
            however, substantially liberalized the rules for political 
            activities during off-duty hours for most executive branch 
            employees, subject to certain limitations on off-duty hours 
            activities and express prohibitions against on-the-job 
            partisan political activities.\33\
---------------------------------------------------------------------------

                    \31\ 53 Stat. 1147, 1148 (1939), then 5 U.S.C. Sec.  
            7324(a). The 1940 law, Sec.  12(a), 54 Stat. 767-768, 
            applied the same broad ban to employees of federally funded 
            state and local agencies, but this provision was amended in 
            1974 to restrict state and local government employees in 
            only one respect: running for public office in partisan 
            elections. Act of Oct. 15, 1974, P. L. 93-443, Sec.  401(a), 
            88 Stat. 1290, 5 U.S.C. Sec.  1502.
                    \32\ 330 U.S. 75 (1947). See also Civil Serv. Corp. 
            v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973), 
            in which the constitutional attack was renewed, in large 
            part based on the Court's expanding free speech 
            jurisprudence, but the act was again sustained. A ``little 
            Hatch Act'' of a state, applying to its employees, was 
            sustained in Broadrick v. Oklahoma, 413 U.S. 601 (1973).
                    \33\ P. L. 103-94, Sec.  2(a), 107 Stat. 1001 
            (1993), 5 U.S.C. Sec. Sec.  7321-7326. Executive branch 
            employees (except those appointed by the President, by and 
            with the advice and consent of the Senate) who are listed in 
            Sec.  7323(b)(2), which generally include those employed by 
            agencies involved in law enforcement or national security, 
            remain under restrictions similar to the those in the old 
            Hatch Act on taking an active part in political management 
            or political campaigns.
---------------------------------------------------------------------------
The Presidential Aegis: Demands for Papers
--Private Access to Government Information
[P. 556, add to text at end of section:]


            Reynolds dealt with an evidentiary privilege. There are 
            other circumstances, however, in which cases must be 
            ``dismissed on the pleadings without ever reaching the 
            question of evidence.'' \34\ In holding that federal courts 
            should refuse to entertain a breach of contract action 
            seeking enforcement of an agreement to compensate someone 
            who performed espionage services during the Civil War, the 
            Court in Totten v. United States declared that ``public 
            policy forbids the maintenance of any suit in a court of 
            justice, the trial of which would inevitably lead to the 
            disclosure of matters which the law itself regards as 
            confidential.'' \35\
---------------------------------------------------------------------------


                    \34\ Reynolds, 345 U.S. at 11, n.26.
                    \35\ 92 U.S. 105, 107 (1875). See also Tenet v. Doe, 
            544 U.S. 1, 9 (2005) (reiterating and applying Totten's 
            ``broader holding that lawsuits premised on alleged 
            espionage agreements are altogether forbidden''). The Court 
            in Tenet distinguished Webster v. Doe on the basis of ``an 
            obvious difference . . . between a suit brought by an 
            acknowledged (though covert) employee of the CIA and one 
            filed by an alleged former spy.'' Id. at 10.
---------------------------------------------------------------------------
--Prosecutorial and Grand Jury Access to Presidential 
    Documents
[P. 559, add to text at end of section:]

                    Public disclosure was at issue in 2004 when the 
            Court weighed a claim of executive privilege asserted as a 
            bar to discovery orders for information disclosing the 
            identities of individuals who served on an energy task force 
            chaired by the Vice President.\36\ Although the case was 
            remanded on narrow technical grounds, the Court 
            distinguished United States v. Nixon,\37\ and, in 
            instructing the appeals court on how to proceed, emphasized 
            the importance of confidentiality for advice tendered the 
            President.\38\
---------------------------------------------------------------------------

                    \36\ Cheney v. United States District Court, 542 
            U.S. 367 (2004).
                    \37\ Although the information sought in Nixon was 
            important to ``the constitutional need for production of 
            relevant evidence in a criminal proceeding,'' the suit 
            against the Vice President was civil, and withholding the 
            information ``does not hamper another branch's ability to 
            perform its `essential functions.''' 542 U.S. at 383, 384.
                    \38\ The Court recognized ``the paramount necessity 
            of protecting the Executive Branch from vexatious litigation 
            that might distract it from the energetic performance of its 
            constitutional duties.'' 542 U.S. at 382. But cf. Clinton v. 
            Jones, 520 U.S. 681, 702 (1997).
---------------------------------------------------------------------------

              PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL 
                                    SEIZURE CASE

Power Denied by Congress
[P. 599, add to n.718:]
            In Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2800 (2006), Justice 
            Kennedy, in a concurring opinion joined by three other 
            Justices, endorsed ``the three-part scheme used by Justice 
            Jackson'' as ``[t]he proper framework for assessing whether 
            Executive actions are authorized.'' The Court in this case 
            found ``that the military commission convened [by the 
            President, in Guantanamo Bay, Cuba] to try Hamdan lacks 
            power to proceed because its structure and procedures 
            violate [the Uniform Code of Military Justice].'' Id. at 
            2759. Thus, as Justice Kennedy noted, ``the President has 
            acted in a field with a history of congressional 
            participation and regulation.'' Id. at 2800.






                               ARTICLE III

Section 1. Judicial Power, Courts, Judges

                         ANCILLARY POWERS OF FEDERAL COURTS

Power to Issue Writs: The Act of 1789
--Habeas Corpus: Congressional and Judicial Control
[P. 669, substitute for first sentence of section:]

                    The writ of habeas corpus [text n.241] has a special 
            status because its suspension is forbidden, except in narrow 
            circumstances, by Article I, Sec.  9, cl. 2. The writ also 
            has a venerable common law tradition, long antedating its 
            recognition in the Judiciary Act of 1789,\1\ as a means ``to 
            relieve detention by executive authorities without judicial 
            trial.'' \2\ Nowhere in the Constitution, however, is the 
            power to issue the writ vested in the federal courts.
---------------------------------------------------------------------------

                    \1\ Act of Sept. 24, 1789, ch. 20, Sec.  14, 1 Stat. 
            82.
                    \2\ INS v. St. Cyr, 533 U.S. 289, 301 (2001), as 
            quoted in Rasul v. Bush, 542 U.S. 466, 474 (2004).
---------------------------------------------------------------------------
--Habeas Corpus: The Process of the Writ
[P. 671, add to text after n.254:]


            The writ acts upon the custodian, not the prisoner, so the 
            issue under the jurisdictional statute is whether the 
            custodian is within the district court's jurisdiction.\3\
---------------------------------------------------------------------------


                    \3\ Braden v. 30th Judicial Circuit Court, 410 U.S. 
            484, 494-95 (1973) (issue is whether ``the custodian can be 
            reached by service of process''). See also Rasul v. Bush, 
            542 U.S. 466 (2004) (federal district court for District of 
            Columbia had jurisdiction of habeas petitions from prisoners 
            held at U.S. Naval base at Guantanamo Bay, Cuba); Rumsfeld 
            v. Padilla, 542 U.S. 426 (2004) (federal district court in 
            New York lacks jurisdiction over prisoner being held in a 
            naval brig in Charleston, South Carolina; the commander of 
            the brig, not the Secretary of Defense, is the immediate 
            custodian and proper respondent).
---------------------------------------------------------------------------
Section 2. Judicial Power and Jurisdiction
Clause 1. Cases and Controversies; Grants of Jurisdiction

              JUDICIAL POWER AND JURISDICTION--CASES AND CONTROVERSIES

Substantial Interest: Standing
--Taxpayer Suits
[P. 690, add to text after n.352:]


            Most recently, the Court refused to create an exception for 
            Commerce Clause violations to the general prohibition on 
            taxpayer standing.\4\
---------------------------------------------------------------------------


                    \4\ DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 
            1864-65 (2006) (standing denied to taxpayer claim that state 
            tax credit given to vehicle manufacturer violated the 
            Commerce Clause).
---------------------------------------------------------------------------
[P. 690, add to n.353:]
            In DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1865 
            (2006), the Court held that a plaintiff's status as a 
            municipal taxpayer does not give him standing to challenge a 
            state tax credit.
[P. 690, substitute for final sentence of section:]


            The taxpayer's action in Doremus, the Court wrote, ``is not 
            a direct dollars-and-cents injury but is a religious 
            difference.'' \5\ This rationale was similar to the spending 
            program-regulatory program distinction of Flast. But, even a 
            dollar-and-cents injury resulting from a state spending 
            program will apparently not constitute a direct dollars-and-
            cents injury. The Court in Doremus wrote that a taxpayer 
            challenging either a federal or a state statute ``must be 
            able to show not only that the statute is invalid but that 
            he has sustained some direct injury as a result of its 
            enforcement, and not merely that he suffers in some 
            indefinite way in common with people generally.'' \6\
---------------------------------------------------------------------------


                    \5\ 342 U.S. at 434.
                    \6\ 342 U.S. at 434, quoting Massachusetts v. 
            Mellon, 262 U.S. 447, 488 (1923); quoted with approval in 
            DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1863 (2006).
---------------------------------------------------------------------------
--Standing to Assert the Constitutional Rights of Others
[P. 698, add to n.396:]
            Caplin & Drysdale was distinguished in Kowalski v. Tesmer, 
            543 U.S. 123, 131 (2004), the Court's finding that attorneys 
            seeking to represent hypothetical indigent clients in 
            challenging procedures for appointing appellate counsel had 
            ``no relationship at all'' with such potential clients, let 
            alone a ``close'' relationship.
The Requirement of a Real Interest
--Retroactivity Versus Prospectivity
[P. 722, add to n.534:]
            For recent application of the principles, see Schriro v. 
            Summerlin, 542 U.S. 348 (2004) (requirement that aggravating 
            factors justifying death penalty be found by the jury was a 
            new procedural rule that does not apply retroactively).
Political Questions
--The Doctrine Reappears
[P. 734, add to n.605:]
            But see Vieth v. Jubelirer, 541 U.S. 267 (2004) (no workable 
            standard has been found for measuring burdens on 
            representational rights imposed by political 
            gerrymandering).
Clause 2. Original and Appellate Jurisdiction

                            FEDERAL-STATE COURT RELATIONS

Conflicts of Jurisdiction: Rules of Accommodation
--Res Judicata
[P. 842, add to text at end of section:]


            Closely related is the Rooker-Feldman doctrine, holding that 
            federal subject-matter jurisdiction of federal district 
            courts does not extend to review of state court 
            judgments.\7\ The Supreme Court, not federal district 
            courts, has such appellate jurisdiction. The doctrine thus 
            prevents losers in state court from obtaining district court 
            review, but ``does not otherwise override or supplant 
            preclusion doctrine or augment the circumscribed doctrines 
            that allow federal courts to stay or dismiss proceedings in 
            deference to state-court actions.'' \8\
---------------------------------------------------------------------------


                    \7\ The doctrine derives its name from Rooker v. 
            Fidelity Trust Co., 263 U.S. 413 (1923), and District of 
            Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
                    \8\ Exxon Mobil Corp. v. Saudi Basic Industries 
            Corp., 544 U.S. 280, 284 (2005) (Rooker-Feldman has no 
            application when federal court proceedings have been 
            initiated prior to state court proceedings; preclusion law 
            governs in that situation.)
---------------------------------------------------------------------------
Conflicts of Jurisdiction: Federal Court Interference with 
    State Courts
--Habeas Corpus: Scope of the Writ
[P. 858, add to n.1312:]
            In House v. Bell, 126 S. Ct. 2064, 2086-2087 (2006), the 
            Court declined to resolve the issue that in Herrera it had 
            assumed without deciding: that ``a truly persuasive 
            demonstration of `actual innocence' made after trial would 
            render the execution of a defendant unconstitutional.'' See 
            Amendment 8, Limitations on Habeas Corpus Review of Capital 
            Sentences.
                               ARTICLE IV

Section 1. Full Faith and Credit

             RECOGNITION OF RIGHTS BASED UPON CONSTITUTIONS, STATUTES, 
                                     COMMON LAW

Development of the Modern Rule
[P. 896, substitute for entire section:]

                    Although the language of section one suggests that 
            the same respect should be accorded to ``public acts'' that 
            is accorded to ``judicial proceedings'' (``full faith and 
            credit shall be given in each State to the public acts, 
            records, and judicial proceedings of every other State''), 
            and the Court has occasionally relied on this parity of 
            treatment,\1\ the Court has usually differentiated ``the 
            credit owed to laws (legislative measures and common law) 
            and to judgments.'' \2\ The current understanding is that 
            the Full Faith and Credit Clause is ``exacting'' with 
            respect to final judgments of courts, but ``is less 
            demanding with respect to choice of laws.'' \3\
---------------------------------------------------------------------------

                    \1\ See Chicago & Alton R.R. v. Wiggins Ferry Co., 
            119 U.S. 615, 622 (1887) (statutes); and Smithsonian 
            Institution v. St. John, 214 U.S. 19 (1909) (state 
            constitutional provision).
                    \2\ Baker v. General Motors Corp., 522 U.S. 222, 232 
            (1998), quoted in Franchise Tax Bd. of Cal. v. Hyatt, 538 
            U.S. 488, 494 (2003). Justice Nelson in the Dred Scott case 
            drew an analogy to international law, concluding that 
            states, as well as nations, judge for themselves the rules 
            governing property and persons within their territories. 
            Scott v. Sandford, 60 U.S. (19 How.) 393, 460 (1857). ``One 
            State cannot exempt property from taxation in another,'' the 
            Court concluded in Bonaparte v. Tax Court, 104 U.S. 592 
            (1882), holding that no provision of the Constitution, 
            including the Full Faith and Credit Clause, enabled a law 
            exempting from taxation certain debts of the enacting state 
            to prevent another state (the state in which the creditor 
            resided) from taxing the debts. See also Bank of Augusta v. 
            Earle, 38 U.S. (13 Pet.) 519, 589-96 (1839); Kryger v. 
            Wilson, 242 U.S. 171 (1916); and Bond v. Hume, 243 U.S. 15 
            (1917).
                    \3\ Baker v. General Motors Corp., 522 U.S. at 232.
---------------------------------------------------------------------------

                    The Court has explained that where a statute or 
            policy of the forum state is set up as a defense to a suit 
            brought under the statute of another state or territory, or 
            where a foreign statute is set up as a defense to a suit or 
            proceedings under a local statute, the conflict is to be 
            resolved, not by giving automatic effect to the Full Faith 
            and Credit Clause and thus compelling courts of each state 
            to subordinate their own statutes to those of others, but by 
            weighing the governmental interests of each jurisdiction.\4\ 
            That is, the Full Faith and Credit Clause, in its design to 
            transform the states from independent sovereigns into a 
            single unified Nation, directs that a state, when acting as 
            the forum for litigation having multistate aspects or 
            implications, respect the legitimate interests of other 
            states and avoid infringement upon their sovereignty. But 
            because the forum state is also a sovereign in its own 
            right, in appropriate cases it may attach paramount 
            importance to its own legitimate interests.\5\ In order for 
            a state's substantive law to be selected in a 
            constitutionally permissible manner, that state must have a 
            significant contact or significant aggregation of contacts, 
            creating state interests, such that choice of its law is 
            neither arbitrary nor fundamentally unfair.\6\ Once that 
            threshold is met, the Court will not weigh the competing 
            interests. ``[T]he question of which sovereign interest 
            should be deemed more weighty is not one that can be easily 
            answered,'' the Court explained, ``declin[ing] to embark on 
            the constitutional course of balancing coordinate States' 
            competing interests to resolve conflicts of laws under the 
            Full Faith and Credit Clause.'' \7\
---------------------------------------------------------------------------

                    \4\ Alaska Packers Ass'n. v. Industrial Accident 
            Comm'n, 294 U.S. 532 (1935); Bradford Elec. Co. v. Clapper, 
            286 U.S. 145 (1932). When, in a state court, the validity of 
            an act of the legislature of another state is not in 
            question, and the controversy turns merely upon its 
            interpretation or construction, no question arises under the 
            Full Faith and Credit Clause. See also Western Life 
            Indemnity Co. v. Rupp, 235 U.S. 261 (1914), citing Glenn v. 
            Garth, 147 U.S. 360 (1893), Lloyd v. Matthews, 155 U.S. 222, 
            227 (1894); Banholzer v. New York Life Ins. Co., 178 U.S. 
            402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 
            (1905); Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911); 
            National Mut. B. & L. Ass'n v. Brahan, 193 U.S. 635 (1904); 
            Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); 
            Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 
            93 (1917).
                    \5\ E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 
            (1981); Nevada v. Hall, 440 U.S. 410 (1979); Carroll v. 
            Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. v. 
            Industrial Accident Comm'n, 306 U.S. 493 (1939); Alaska 
            Packers Ass'n v. Industrial Accident Comm'n, 294 U.S. 532 
            (1935).
                    \6\ Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 
            818 (1985) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 
            302, 312-13 (1981) (plurality opinion)).
                    \7\ Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 
            488, 498, 499 (2003).
---------------------------------------------------------------------------
Section 2. Interstate Comity
Clause 1. State Citizenship: Privileges and Immunities

                    STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

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


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


                    \8\ ``[A]bsence of an express statement . . . 
            identifying out-of-state citizenship as a basis for 
            disparate treatment is not a sufficient basis for rejecting 
            [a] claim.'' Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 
            (2003).
                                ARTICLE V

                            AMENDMENT OF THE CONSTITUTION

Proposing a Constitutional Amendment
--Proposals by Congress
[P. 941, substitute for n.20:]
            In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), 
            the Court rejected a challenge to the Eleventh Amendment 
            based on the argument that it had not been submitted to the 
            President for approval or veto. The Court's brief opinion 
            merely determined that the Eleventh Amendment was 
            ``constitutionally adopted.'' Id. at 382. Apparently during 
            oral argument, Justice Chase opined that ``[t]he negative of 
            the President applies only to the ordinary cases of 
            legislation: He has nothing to do with the proposition, or 
            adoption, of amendments to the Constitution.'' Id. at 381. 
            See Seth Barrett Tillman, A Textualist Defense of Art. I, 
            Section 7, Clause 3: Why Hollingsworth v. Virginia was 
            Rightly Decided, and Why INS v. Chadha was Wrongly Reasoned, 
            83 Tex. L. Rev. 1265 (2005), for extensive analysis of what 
            Hollingsworth's delphic pronouncement could mean. Whatever 
            the Court decided in Hollingsworth, it has since treated the 
            issue as settled. See Hawke v. Smith, 253 U.S. 221, 229 
            (1920) (in Hollingsworth, ``this court settled that the 
            submission of a constitutional amendment did not require the 
            action of the President''); INS v. Chadha, 462 U.S. 919, 955 
            n.21 (1983) (in Hollingsworth, the Court ``held Presidential 
            approval was unnecessary for a proposed constitutional 
            amendment'').
                             FIRST AMENDMENT

                                RELIGION

Establishment of Religion
--Governmental Encouragement of Religion in Public Schools: 
    Prayers and Bible Readings
[P. 1047, add to n.163:]
            An opportunity to flesh out this distinction was lost when 
            the Court dismissed for lack of standing an Establishment 
            Clause challenge to public school recitation of the Pledge 
            of Allegiance with the words ``under God.'' Elk Grove 
            Unified School District v. Newdow, 542 U.S. 1 (2004).
--Religious Displays on Government Property
[P. 1058, add to text at end of section:]

                    Displays of the Ten Commandments on government 
            property occasioned two decisions in 2005. As in Allegheny 
            County, a closely divided Court determined that one display 
            violated the Establishment Clause and one did not. And 
            again, context and imputed purpose made the difference. The 
            Court struck down display of the Ten Commandments in 
            courthouses in two Kentucky counties,\1\ but held that a 
            display on the grounds of the Texas State Capitol was 
            permissible.\2\ The displays in the Kentucky courthouses 
            originally ``stood alone, not part of an arguably secular 
            display.'' \3\ Moreover, the history of the displays 
            revealed ``a predominantly religious purpose'' that had not 
            been eliminated by steps taken to give the appearance of 
            secular objectives.\4\
---------------------------------------------------------------------------

                    \1\ McCreary County v. ACLU of Kentucky, 125 S. Ct. 
            2722 (2005).
                    \2\ Van Orden v. Perry, 125 S. Ct. 2854 (2005).
                    \3\ 125 S. Ct. at 2738. The Court in its previous 
            Ten Commandments case, Stone v. Graham, 449 U.S. 39, 41 
            (1980) (invalidating display in public school classrooms) 
            had concluded that the Ten Commandments are ``undeniably a 
            sacred text,'' and the 2005 Court accepted that 
            characterization. McCreary, 125 S. Ct. at 2732.
                    \4\ 125 S. Ct. at 2745. An ``indisputable'' 
            religious purpose was evident in the resolutions authorizing 
            a second display, and the Court characterized statements of 
            purpose accompanying authorization of the third displays as 
            ``only . . . a litigating position.'' 125 S. Ct. at 2739, 
            2740.
---------------------------------------------------------------------------

                    There was no opinion of the Court in Van Orden. 
            Justice Breyer, the swing vote in the two cases,\5\ 
            distinguished the Texas Capitol grounds display from the 
            Kentucky courthouse displays. In some contexts, the Ten 
            Commandments can convey a moral and historical message as 
            well as a religious one, the Justice explained. Although it 
            was ``a borderline case'' turning on ``a practical matter of 
            degree,'' the capitol display served ``a primarily 
            nonreligious purpose.'' \6\ The monument displaying the Ten 
            Commandments was one of 17 monuments and 21 historical 
            markers on the Capitol grounds; it was paid for by a 
            private, civic, and primarily secular organization; and it 
            had been in place, unchallenged, for 40 years. Under the 
            circumstances, Justice Breyer thought it unlikely that the 
            monument will be understood to represent an attempt by 
            government to favor religion.\7\
---------------------------------------------------------------------------

                    \5\ Only Justice Breyer voted to invalidate the 
            courthouse displays and uphold the capitol grounds display. 
            The other eight Justices were split evenly, four (Chief 
            Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) 
            voting to uphold both displays, and four (Justices Stevens, 
            O'Connor, Souter, and Ginsburg) voting to invalidate both.
                    \6\ 125 S. Ct. at 2869, 2871.
                    \7\ 125 S. Ct. at 2871.
---------------------------------------------------------------------------
Free Exercise of Religion
[P. 1060, add to text after n.234:]


            ``There is room for play in the joints productive of a 
            benevolent neutrality which will permit religious exercise 
            to exist without [governmental] sponsorship and without 
            interference.'' \8\
---------------------------------------------------------------------------


                    \8\ Walz v. Tax Comm'n, 397 U.S. at 669. See also 
            Locke v. Davy, 540 U.S. 712, 718 (2004); Cutter v. 
            Wilkinson, 544 U.S. 709, 713 (2005).
---------------------------------------------------------------------------
[P. 1061, add to n.236:]
            Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a 
            provision of the Religious Land Use and Institutionalized 
            Persons Act of 2000 that prohibits governments from imposing 
            a ``substantial burden on the religious exercise'' of an 
            institutionalized person unless the burden furthers a 
            ``compelling governmental interest'').
[P. 1061, add to text at end of section:]


            Government need not, however, offer the same accommodations 
            to secular entities that it extends to religious 
            practitioners in order to facilitate their religious 
            exercise; ``[r]eligious accommodations . . . need not `come 
            packaged with benefits to secular entities.''' \9\
---------------------------------------------------------------------------


                    \9\ Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) 
            (quoting Corporation of the Presiding Bishop v. Amos, 483 
            U.S. 327, 338 (1987).
---------------------------------------------------------------------------

                    ``Play in the joints'' can work both ways, the Court 
            ruled in upholding a state's exclusion of theology students 
            from a college scholarship program.\10\ Although the state 
            could have included theology students in its scholarship 
            program without offending the Establishment Clause, its 
            choice not to fund religious training did not offend the 
            Free Exercise Clause even though that choice singled out 
            theology students for exclusion.\11\ Refusal to fund 
            religious training, the Court observed, was ``far milder'' 
            than restrictions on religious practices that have been held 
            to offend the Free Exercise Clause.\12\
---------------------------------------------------------------------------

                    \10\ Locke v. Davy, 540 U.S. 712 (2004).
                    \11\ 540 U.S. at 720-21. Excluding theology students 
            but not students training for other professions was 
            permissible, the Court explained, because ``[t]raining 
            someone to lead a congregation is an essentially religious 
            endeavor,'' and the Constitution's special treatment of 
            religion finds ``no counterpart with respect to other 
            callings or professions.'' Id. at 721.
                    \12\ 540 U.S. at 720-21 (distinguishing Church of 
            the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
            (1993) (law aimed at restricting ritual of a single 
            religious group); McDaniel v. Paty, 435 U.S. 618 (1978) (law 
            denying ministers the right to serve as delegates to a 
            constitutional convention); and Sherbert v. Verner, 374 U.S. 
            398 (1963) (among the cases prohibiting denial of benefits 
            to Sabbatarians)).
---------------------------------------------------------------------------
--Free Exercise Exemption from General Governmental 
    Requirements
[P. 1066, add to n.264:]
            In 2004, the Court rejected for lack of standing an 
            Establishment Clause challenge to recitation of the Pledge 
            of Allegiance in public schools. Elk Grove Unified School 
            District v. Newdow, 542 U.S. 1 (2004).
[P. 1075, substitute for final paragraph of section:]

                    Boerne did not close the books on Smith, however, or 
            even on RFRA. Although Boerne held that RFRA was not a valid 
            exercise of Fourteenth Amendment enforcement power as 
            applied to restrict states, it remained an open issue 
            whether RFRA may be applied to the federal government, and 
            whether its requirements could be imposed pursuant to other 
            powers. Several lower courts answered these questions 
            affirmatively.\13\
---------------------------------------------------------------------------

                    \13\ See, e.g., In re Young, 141 F.3d 854 (8th 
            Cir.), cert. denied, 525 U.S. 811 (1998) (RFRA is a valid 
            exercise of Congress' bankruptcy powers as applied to 
            insulate a debtor's church tithes from recovery by the 
            bankruptcy trustee); O'Bryan v. Bureau of Prisons, 349 F.3d 
            399 (7th Cir. 2003) (RFRA may be applied to require the 
            Bureau of Prisons to accommodate religious exercise by 
            prisoners); Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 
            2001) (RFRA applies to Bureau of Prisons).
---------------------------------------------------------------------------

                    Congress responded to Boerne by enacting a new law 
            purporting to rest on its commerce and spending powers. The 
            Religious Land Use and Institutionalized Persons Act 
            (RLUIPA) \14\ imposes the same strict scrutiny test struck 
            down in Boerne but limits its application to certain land 
            use regulations and to religious exercise by persons in 
            state institutions.\15\ In Cutter v. Wilkinson,\16\ the 
            Court upheld RLUIPA's prisoner provision against a facial 
            challenge under the Establishment Clause, but it did not 
            rule on congressional power to enact RLUIPA. The Court held 
            that RLUIPA ``does not, on its face, exceed the limits of 
            permissible government accommodation of religious 
            practices.'' \17\ Rather, the provision ``fits within the 
            corridor'' between the Free Exercise and Establishment 
            Clauses, and is ``compatible with the [latter] because it 
            alleviates exceptional government-created burdens on private 
            religious exercise.'' \18\
---------------------------------------------------------------------------

                    \14\ Pub. L. 106-274, 114 Stat. 804 (2000); 42 
            U.S.C. Sec. Sec.  2000cc et seq.
                    \15\ The Act requires that state and local zoning 
            and landmark laws and regulations which impose a substantial 
            burden on an individual's or institution's exercise of 
            religion be measured by a strict scrutiny test, and applies 
            the same strict scrutiny test for any substantial burdens 
            imposed on the exercise of religion by persons 
            institutionalized in state or locally run prisons, mental 
            hospitals, juvenile detention facilities, and nursing homes. 
            Both provisions apply if the burden is imposed in a program 
            that receives federal financial assistance, or if the burden 
            or its removal would affect commerce.
                    \16\ 544 U.S. 709 (2005).
                    \17\ 544 U.S. at 714.
                    \18\ 544 U.S. at 720.
---------------------------------------------------------------------------

                      FREEDOM OF EXPRESSION -- SPEECH AND PRESS

The Doctrine of Prior Restraint
--Obscenity and Prior Restraint
[P. 1090, add to n.394 after citation to Fort Wayne Books:]
            City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 
            784 (2004) (``Where (as here and as in FW/PBS) the 
            regulation simply conditions the operation of an adult 
            business on compliance with neutral and nondiscretionary 
            criteria . . . and does not seek to censor content, an adult 
            business is not entitled to an unusually speedy judicial 
            decision of the Freedman type'');
Subsequent Punishment: Clear and Present Danger and Other 
    Tests
--Of Other Tests and Standards: Vagueness, Overbreadth, 
    Least Restrictive Means, Narrow Tailoring, and 
    Effectiveness of Speech Restrictions
[P. 1108, add to text immediately before comma preceding 
    n.481:]


            and indecency


[P. 1108, add to n.481:]
            Reno v. ACLU, 521 U.S. 844, 870-874 (1997). In National 
            Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the 
            Court held that a ``decency'' criterion for the awarding of 
            grants, which ``in a criminal statute or regulatory scheme . 
            . . could raise substantial vagueness concerns,'' was not 
            unconstitutionally vague in the context of a condition on 
            public subsidy for speech.
[P. 1108, substitute for rest of section after n.484:]

                    But, even in a First Amendment situation, the Court 
            has written, ``there are substantial social costs created by 
            the overbreadth doctrine when it blocks application of a law 
            to constitutionally unprotected speech, or especially to 
            constitutionally unprotected conduct. To ensure that these 
            costs do now swallow the social benefits of declaring a law 
            `overbroad,' we have insisted that a law's application to 
            protected speech be `substantial,' not only in an absolute 
            sense, but also relative to the scope of the law's plainly 
            legitimate applications, before applying the `strong 
            medicine' of overbreadth invalidation. . . . Rarely, if 
            ever, will an overbreadth challenge succeed against a law or 
            regulation that is not specifically addressed to speech or 
            to conduct necessarily associated with speech (such as 
            picketing or demonstrating).'' \19\
---------------------------------------------------------------------------

                    \19\ Virginia v. Hicks, 539 U.S. 113, 119-20, 124 
            (2003) (italics in original; citations omitted) (upholding, 
            as not addressed to speech, an ordinance banning from 
            streets within a low-income housing development any person 
            who is not a resident or employee and who ``cannot 
            demonstrate a legitimate business or social purpose for 
            being on the premises''). Virginia v. Hicks cited Broadrick 
            v. Oklahoma, 413 U.S. 601 (1973), which, in the opinion of 
            the Court and in Justice Brennan's dissent, id. at 621, 
            contains extensive discussion of the overbreadth doctrine. 
            Other restrictive decisions are Arnett v. Kennedy, 416 U.S. 
            134, 158-64 (1974); Parker v. Levy, 417 U.S. 733, 757-61 
            (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982). 
            Nonetheless, the doctrine continues to be used across a wide 
            spectrum of First Amendment cases. Bigelow v. Virginia, 421 
            U.S. 809, 815-18 (1975); Erznoznik v. City of Jacksonville, 
            422 U.S. 205 (1975); Doran v. Salem Inn, 422 U.S. 922, 932-
            34 (1975); Village of Schaumburg v. Citizens for a Better 
            Environment, 444 U.S. 620, 633-39 (1980); Secretary of State 
            of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) 
            (charitable solicitation statute placing 25% cap on 
            fundraising expenditures); City of Houston v. Hill, 482 U.S. 
            451 (1987) (city ordinance making it unlawful to ``oppose, 
            molest, abuse, or interrupt'' police officer in performance 
            of duty); Board of Airport Comm'rs v. Jews for Jesus, 482 
            U.S. 569 (1987) (resolution banning all ``First Amendment 
            activities'' at airport); Reno v. ACLU, 521 U.S. 844, 874-
            879 (1997) (statute banning ``indecent'' material on the 
            Internet).
---------------------------------------------------------------------------

                    Closely related at least to the overbreadth 
            doctrine, the Court has insisted that when the government 
            seeks to carry out a permissible goal and it has available a 
            variety of effective means to do so, ``[i]f the First 
            Amendment means anything, it means that regulating speech 
            must be a last -- not first -- resort.'' \20\ Thus, when the 
            Court applies ``strict scrutiny'' to a content-based 
            regulation of fully protected speech, it requires that the 
            regulation be ``the least restrictive means to further the 
            articulated interest.'' \21\ Similarly, the Court requires 
            ``narrow tailoring'' even of restrictions to which it does 
            not apply strict scrutiny. Thus, in the case of restrictions 
            that are not content-based (time, place, or manner 
            restrictions; incidental restrictions); or in the case of 
            restrictions of speech to which the Court accords less than 
            full First Amendment protection (campaign contributions and 
            other freedoms of association; commercial speech), though 
            the Court does not require that the government use the least 
            restrictive means available to accomplish its end, it does 
            require that the regulation not restrict speech 
            unreasonably.\22\ The Court uses tests closely related to 
            one another in these instances in which it does not apply 
            strict scrutiny. It has indicated that the test for 
            determining the constitutionality of an incidental 
            restriction on speech ``in the last analysis is little, if 
            any, different from the standard applied to time, place, or 
            manner restrictions,'' \23\ and that ``the validity of time, 
            place, or manner restrictions is determined under standards 
            very similar to those applicable in the commercial speech 
            context.'' \24\
---------------------------------------------------------------------------

                    \20\ Thompson v. Western States Medical Center, 535 
            U.S. 357, 373 (2002).
                    \21\ Sable Communications of California v. FCC, 492 
            U.S. 115, 126 (1989).
                    \22\ E.g., Frisby v. Schultz, 487 U.S. 474, 481 
            (1988) (time, place, and manner restriction upheld as 
            ``narrowly tailored to serve a significant government 
            interest, and leav[ing] open ample alternative channels of 
            communication''); Ward v. Rock Against Racism, 491 U.S. 781, 
            798-799 (1989) (incidental restriction upheld as 
            ``promot[ing] a substantial governmental interest that would 
            be achieved less effectively absent the regulation''); 
            Buckley v. Valeo, 424 U.S. 1, 25 (1976) (campaign 
            contribution ceiling ``may be sustained if the State 
            demonstrates a sufficiently important interest and employs 
            means closely drawn to avoid unnecessary abridgment of 
            associational freedom''); Board of Trustees v. Fox, 492 U.S. 
            469, 480 (1989) (commercial speech restrictions need not be 
            ``absolutely the least severe that will achieve the desired 
            end,'' but must exhibit ``a `fit' between the legislature's 
            ends and the means chosen to accomplish those ends -- a fit 
            that is not necessarily perfect, but reasonable . . .'') 
            (internal quotation mark and citation ommited)). But see 
            Thompson v. Western States Medical Center, 535 U.S. 357, 371 
            (2002) (commercial speech restriction struck down as ``more 
            extensive than necessary to serve'' the government's 
            interests).
                    \23\ Clark v. Community for Creative Non-Violence, 
            468 U.S. 288, 298 (1984).
                    \24\ United States v. Edge Broadcasting Co., 509 
            U.S. 418, 430 (1993).
---------------------------------------------------------------------------

                    Also, except apparently when the government seeks to 
            deny minors access to sexually explicit material, the 
            Supreme Court, even when applying less than strict scrutiny, 
            requires that, ``[w]hen the Government defends a regulation 
            on speech as a means to redress past harms or prevent 
            anticipated harms, it must do more than simply `posit the 
            existence of the disease sought to be cured.' It must 
            demonstrate that the recited harms are real, not merely 
            conjectural, and that the regulation will in fact alleviate 
            these harms in a direct and material way.'' \25\
---------------------------------------------------------------------------

                    \25\ Turner Broadcasting System v. FCC, 512 U.S. 
            622, 664 (1994) (incidental restriction on speech). The 
            Court has applied the same principle with respect to 
            commercial speech restrictions (Edenfield v. Fane, 507 U.S. 
            761, 770-771 (1993)), and campaign contribution restrictions 
            (Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 
            (2000)). With respect to denying minors' access to sexually 
            explicit material, one court wrote: ``We recognize that the 
            Supreme Court's jurisprudence does not require empirical 
            evidence. Only some minimal amount of evidence is required 
            when sexually explicit programming and children are 
            involved.'' Playboy Entertainment Group, Inc. v. U.S., 30 F. 
            Supp. 2d 702, 716 (D. Del. 1998), aff'd, 529 U.S. 803 
            (2000). In a case upholding a statute that, to shield minors 
            from ``indecent'' material, limited the hours that such 
            material may be broadcast on radio and television, the court 
            of appeals wrote, ``Congress does not need the testimony of 
            psychiatrists and social scientists in order to take note of 
            the coarsening of impressionable minds that can result from 
            a persistent exposure to sexually explicit material. . . .'' 
            Action for Children's Television v. FCC, 58 F.3d 654, 662 
            (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 
            (1996). A dissenting opinion complained that ``[t]here is 
            not one iota of evidence in the record . . . to support the 
            claim that exposure to indecency is harmful -- indeed, the 
            nature of the alleged `harm' is never explained.'' Id. at 
            671 (Edwards, C.J., dissenting).
---------------------------------------------------------------------------
Freedom of Belief
--Flag Salute Cases
[P. 1111, change heading to ``Flag Salutes and Other 
    Compelled Speech'']
[P. 1111, add to n.501:]
            The First Amendment is not violated when the government 
            compels financial contributions to fund government speech, 
            even if the contributions are raised through a targeted 
            assessment rather than through general taxes. Johanns v. 
            Livestock Marketing Ass'n, 544 U.S. 550 (2005).
[P. 1112, add to text at end of section:]

                    Other governmental efforts to compel speech have 
            also been held by the Supreme Court to violate the First 
            Amendment; these include a North Carolina statute that 
            required professional fundraisers for charities to disclose 
            to potential donors the gross percentage of revenues 
            retained in prior charitable solicitations,\26\ a Florida 
            statute that required newspapers to grant political 
            candidates equal space to reply to the newspapers' criticism 
            and attacks on their records,\27\ an Ohio statute that 
            prohibited the distribution of anonymous campaign 
            literature,\28\ and a Massachusetts statute that required 
            private citizens who organized a parade to include among the 
            marchers a group imparting a message -- in this case support 
            for gay rights -- that the organizers did not wish to 
            convey.\29\
---------------------------------------------------------------------------

                    \26\ Riley v. National Fed'n of the Blind of North 
            Carolina, 487 U.S. 781 (1988). In Illinois ex rel. Madigan 
            v. Telemarketing Assocs., Inc., 538 U.S. 600, 605 (2003), 
            the Supreme Court held that a fundraiser who has retained 85 
            percent of gross receipts from donors, but falsely 
            represented that ``a significant amount of each dollar 
            donated would be paid over to'' a charitable organization, 
            could be sued for fraud.
                    \27\ Miami Herald Publishing Co. v. Tornillo, 418 
            U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public 
            Utilities Comm'n, 475 U.S. 1 (1986), a Court plurality held 
            that a state could not require a privately owned utility 
            company to include in its billing envelopes views of a 
            consumer group with which it disagrees.
                    \28\ McIntyre v. Ohio Elections Commission, 514 U.S. 
            334 (1995).
                    \29\ Hurley v. Irish-American Gay Group of Boston, 
            515 U.S. 557 (1995).
---------------------------------------------------------------------------

                    By contrast, the Supreme Court has found no First 
            Amendment violation when government compels disclosures in 
            commercial speech, or when it compels the labeling of 
            foreign political propaganda. Regarding compelled 
            disclosures in commercial speech, the Court held that an 
            advertiser's ``constitutionally protected interest in not 
            providing any particular factual information in his 
            advertising is minimal. . . . [A]n advertiser's rights are 
            reasonably protected as long as disclosure requirements are 
            reasonably related to the State's interest in preventing 
            deception of consumers. . . . The right of a commercial 
            speaker not to divulge accurate information regarding his 
            services is not . . . a fundamental right.'' \30\ Regarding 
            compelled labeling of foreign political propaganda, the 
            Court upheld a provision of the Foreign Agents Registration 
            Act of 1938 that required that, when an agent of a foreign 
            principal seeks to disseminate foreign ``political 
            propaganda,'' he must label such material with certain 
            information, including his identity, the principal's 
            identity, and the fact that he has registered with the 
            Department of Justice. The Court found that ``Congress did 
            not prohibit, edit, or restrain the distribution of advocacy 
            materials. . . . To the contrary, Congress simply required 
            the disseminators of such material to make additional 
            disclosures that would better enable the public to evaluate 
            the import of the propaganda.'' \31\
---------------------------------------------------------------------------

                    \30\ Zauderer v. Office of Disciplinary Counsel, 471 
            U.S. 626, 651, 652 n.14 (1985).
                    \31\ Meese v. Keene, 481 U.S. 465, 480 (1987).
---------------------------------------------------------------------------
Right of Association
[P. 1120, substitute for n.556:]
            530 U.S. at 653. In Rumsfeld v. Forum for Academic and 
            Institutional Rights, Inc., 126 S. Ct. 1297, 1312 (2006), 
            the Court held that the Solomon Amendment's forcing law 
            schools to allow military recruiters on campus does not 
            violate the schools' freedom of expressive association 
            because ``[r]ecruiters are, by definition, outsiders who 
            come onto campus for the limited purpose of trying to hire 
            students -- not to become members of the school's expressive 
            association. This distinction is critical. Unlike the public 
            accommodations law in Dale, the Solomon Amendment does not 
            force a law school `to accept members it does not desire.''' 
            Rumsfeld is discussed below under ``Government and the Power 
            of the Purse.''
[P. 1121, add to n.561:]
            California Democratic Party v. Jones, 530 U.S. 567, 577 
            (2000) (requirement of a ``blanket'' primary, in which all 
            registered voters, regardless of political affiliation, may 
            participate, unconstitutionally ``forces political parties 
            to associate with -- to have their nominees, and hence their 
            positions, determined by -- those who, at best, have refused 
            to affiliate with the party, and, at worst, have expressly 
            affiliated with a rival.'' Clingman v. Beaver, 544 U.S. 581 
            (2005) (Oklahoma statute that allowed only registered 
            members of a political party, and registered independents, 
            to vote in the party's primary does not violate freedom of 
            association; Oklahoma's ``semiclosed primary system'' 
            distinguished from Connecticut's closed primary that was 
            struck down in Tashjian.
Particular Government Regulations That Restrict Expression
--Government as Employer: Free Expression Generally
[P. 1148, add to text after n.699:]

                    In City of San Diego v. Roe,\32\ the Court held that 
            a police department could fire a police officer who sold a 
            video on the adults-only section of eBay that showed him 
            stripping off a police uniform and masturbating. The Court 
            found that the officer's ``expression does not qualify as a 
            matter of public concern . . . and Pickering balancing does 
            not come into play.'' \33\ The Court also noted that the 
            officer's speech, unlike federal employees' speech in United 
            States v. National Treasury Employees Union (NTEU),\34\ was 
            linked to his official status as a police officer, and 
            designed to exploit his employer's image,'' and therefore 
            ``was detrimental to the mission and functions of his 
            employer.'' \35\ Therefore, the Court had ``little 
            difficulty in concluding that the City was not barred from 
            terminating Roe under either line of cases [i.e., Pickering 
            or NTEU].'' \36\ This leaves uncertain whether, had the 
            officer's expression not been linked to his official status, 
            the Court would have overruled his firing under NTEU or 
            would have upheld it under Pickering on the ground that his 
            expression was not a matter of public concern.
---------------------------------------------------------------------------

                    \32\ 543 U.S. 77 (2004) (per curiam).
                    \33\ 543 U.S. at 84.
                    \34\ 513 U.S. 454 (1995) (discussed under 
            ``Government as Employer: Political and Other Outside 
            Activities,'' supra).
                    \35\ 543 U.S. at 84.
                    \36\ 543 U.S. at 80.
---------------------------------------------------------------------------

                    In Garcetti v. Ceballos, the Court cut back on First 
            Amendment protection for government employees by holding 
            that there is no protection -- Pickering balancing is not to 
            be applied -- ``when public employees make statements 
            pursuant to their official duties,'' even if those 
            statements are about matters of public concern.\37\ In this 
            case, a deputy district attorney had presented his 
            supervisor with a memo expressing his concern that an 
            affidavit that the office had used to obtain a search 
            warrant contained serious misrepresentations. The deputy 
            district attorney claimed that he was subjected to 
            retaliatory employment actions, and sued. The Supreme Court 
            held ``that when public employees make statements pursuant 
            to their official duties, the employees are not speaking as 
            citizens for First Amendment purposes, and the Constitution 
            does not insulate their communications from employer 
            discipline.'' \38\ The fact that the employee's speech 
            occurred inside his office, and the fact that the speech 
            concerned the subject matter of his employment, were not 
            sufficient to foreclose First Amendment protection.\39\ 
            Rather, the ``controlling factor'' was that his expressions 
            were made pursuant to his duties.'' \40\ Therefore, another 
            employee in the office, with different duties, might have 
            had a First Amendment right to utter the speech in question, 
            and the deputy district attorney himself might have had a 
            First Amendment right to communicate the information that he 
            had in a letter to the editor of a newspaper. In these two 
            instances, a court would apply Pickering balancing.
---------------------------------------------------------------------------

                    \37\ 126 S. Ct. 1951, 1960 (2006).
                    \38\ 126 S. Ct. at 1960.
                    \39\ The Court cited Givhan v. Western Line Consol. 
            Sch. Dist., 439 U.S. 410 (1979), for these points. In 
            Givhan, the Court had upheld the First Amendment right of a 
            public school teacher to complain to the school principal 
            about ``employment policies and practices at [the] school 
            which [she] conceived to be racially discriminatory in 
            purpose or effect.'' Id. at 413. The difference between 
            Givhan and Ceballos was apparently that Givhan's complaints 
            were not made pursuant to her job duties, whereas Ceballos' 
            were. Therefore, Givhan spoke as a citizen whereas Ceballos 
            spoke as a government employee. See Ceballos, 126 S. Ct. at 
            1959.
                    \40\ 126 S. Ct. at 1959-60.
---------------------------------------------------------------------------
--Government as Regulator of the Electoral Process: 
    Elections
[P. 1156, add to text after first full paragraph on page, 
    and change beginning of second paragraph as indicated:]

                    The Court in Buckley recognized that political 
            contributions ``serve[ ] to affiliate a person with a 
            candidate'' and ``enable[ ] like-minded persons to pool 
            their resources in furtherance of common political goals.'' 
            Contribution ceilings, therefore, ``limit one important 
            means of associating with a candidate or committee. . . .'' 
            \41\ Yet ``[e]ven a significant interference with protected 
            rights of political association may be sustained if the 
            State demonstrates a sufficiently important interest and 
            employs means closely drawn to avoid unnecessary abridgment 
            of associational freedoms.'' \42\
---------------------------------------------------------------------------

                    \41\ 424 U.S. at 22.
                    \42\ 424 U.S. at 25 (internal quotation mark 
            omitted).
---------------------------------------------------------------------------

                    Applying this standard, the Buckley Court sustained 
            the contribution limitation as imposing . . . .

[P. 1162, add to text at end of section:]

                    In FEC v. Beaumont,\43\ the Court held that the 
            federal law that bars corporations from contributing 
            directly to candidates for federal office may 
            constitutionally be applied to nonprofit advocacy 
            corporations. Corporations may make such contributions only 
            through PACs, and the Court in Beaumont wrote that, in 
            National Right to Work, it had ``specifically rejected the 
            argument . . . that deference to congressional judgments 
            about proper limits on corporate contributions turns on 
            details of corporate form or the affluence of particular 
            corporations.'' \44\ Though nonprofit advocacy corporations, 
            the Court held in Massachusetts Citizens for Life, have a 
            First Amendment right to make independent expenditures, the 
            same is not true for direct contributions to candidates.
---------------------------------------------------------------------------

                    \43\ 539 U.S. 146 (2003).
                    \44\ 539 U.S. at 157.
---------------------------------------------------------------------------

                    In McConnell v. Federal Election Commission,\45\ the 
            Court upheld against facial constitutional challenges key 
            provisions of the Bipartisan Campaign Reform Act of 2002 
            (BCRA). A majority opinion coauthored by Justices Stevens 
            and O'Connor upheld two major provisions of BCRA: (1) the 
            prohibition on ``national party committees and their agents 
            from soliciting, receiving, directing, or spending any soft 
            money,'' \46\ which is money donated for the purpose of 
            influencing state or local elections, or for ``mixed-purpose 
            activities -- including get-out-the-vote drives and generic 
            party advertising,'' \47\ and (2) the prohibition on 
            corporations and labor unions' using funds in their 
            treasuries to finance ``electioneering communications,'' 
            \48\ which BCRA defines as ``any broadcast, cable, or 
            satellite communication'' that ``refers to a clearly 
            identified candidate for Federal Office,'' made within 60 
            days before a general election or 30 days before a primary 
            election. Electioneering communications thus include both 
            ``express advocacy and so-called issue advocacy.'' \49\
---------------------------------------------------------------------------

                    \45\ 540 U.S. 93 (2003).
                    \46\ 540 U.S. at 133.
                    \47\ 540 U.S. at 123.
                    \48\ 540 U.S. at 204.
                    \49\ 540 U.S. at 190.
---------------------------------------------------------------------------

                    As for the soft-money prohibition on national party 
            committees, the Court applied ``the less rigorous scrutiny 
            applicable to contribution limits.'' \50\ and found it 
            ``closely drawn to match a sufficiently important 
            interest.'' \51\ The Court's decision to use less rigorous 
            scrutiny, it wrote, ``reflects more than the limited burdens 
            they [i.e., the contribution restrictions] impose on First 
            Amendment freedoms. It also reflects the importance of the 
            interests that underlie contribution limits -- interests in 
            preventing `both the actual corruption threatened by large 
            financial contributions and the eroding of public confidence 
            in the electoral process through the appearance of 
            corruption.''' \52\
---------------------------------------------------------------------------

                    \50\ 540 U.S. at 141.
                    \51\ 540 U.S. at 136 (internal quotation marks 
            omitted).
                    \52\ 540 U.S. at 136.
---------------------------------------------------------------------------

                    As for the prohibition on corporations and labor 
            unions' using their general treasury funds to finance 
            electioneering communications, the Court applied strict 
            scrutiny, but found a compelling governmental interest in 
            preventing ``the corrosive and distorting effects of immense 
            aggregations of wealth that are accumulated with the help of 
            the corporate form and that have little or no correlation to 
            the public's support for the corporation's political 
            ideals.'' \53\ These corrosive and distorting effects result 
            both from express advocacy and from so-called issue 
            advocacy. The Court also noted that, because corporations 
            and unions ``remain free to organize and administer 
            segregated funds, or PACs,'' for electioneering 
            communications, the provision was not a complete ban on 
            expression.\54\
---------------------------------------------------------------------------

                    \53\ 540 U.S. at 205.
                    \54\ 540 U.S. at 204.
---------------------------------------------------------------------------

                    In Randall v. Sorrell, a plurality of the Court 
            struck down a Vermont campaign finance statute's limitations 
            on both expenditures and contributions.\55\ As for the 
            statute's expenditure limitations, the plurality found 
            Buckley to control and saw no reason to overrule it and no 
            adequate basis upon which to distinguish it. As for the 
            statute's contribution limitations, the plurality, following 
            Buckley, considered whether the ``contribution limits 
            prevent candidates from `amassing the resources necessary 
            for effective [campaign] advocacy'; whether they magnify the 
            advantages of incumbency to the point where they put 
            challengers to a significant disadvantage; in a word, 
            whether they are too low and too strict to survive First 
            Amendment scrutiny.'' \56\ The plurality found that they 
            were. Vermont's limit of $200 per gubernatorial election 
            ``(with significantly lower limits for contributions to 
            candidates for State Senate and House of Representatives) . 
            . . are well below the limits this Court upheld in 
            Buckley,'' and ``are the lowest in the Nation.'' \57\ But 
            the plurality struck down Vermont's contribution limits 
            ``based not merely on the low dollar amounts of the limits 
            themselves, but also on the statute's effect on political 
            parties and on volunteer activity in Vermont elections.'' 
            \58\
---------------------------------------------------------------------------

                    \55\ 126 S. Ct. 2479 (2006). Justice Breyer wrote 
            the plurality opinion, with only Chief Justice Roberts 
            joining it in full. Justice Alito joined the opinion as to 
            the contribution limitations but not as to the expenditure 
            limitations. Justice Alito and three other Justices 
            concurred in the judgment as to the limitations on both 
            expenditures and contributions, and three Justices 
            dissented.
                    \56\ 126 S. Ct. at 2492 (citation omitted).
                    \57\ 126 S. Ct. at 2493 (citation omitted). The 
            plurality noted that, ``in terms of real dollars (i.e., 
            adjusting for inflation),'' they were lower still. Id.
                    \58\ 126 S. Ct. at 2495.
---------------------------------------------------------------------------
--Government as Investigator: Reporter's Privilege
[P. 1165, substitute for n.783:]
            Chief Justice Burger and Justices Blackmun, Powell, and 
            Rehnquist joined the Court's opinion. Justice Powell, 
            despite having joined the majority opinion, also submitted a 
            concurring opinion in which he suggested a privilege might 
            be available if, in a particular case, ``the newsman is 
            called upon to give information bearing only a remote and 
            tenuous relationship to the subject of the investigation, or 
            if he has some other reason to believe that his testimony 
            implicates confidential source relationships without a 
            legitimate need of law enforcement.'' 408 U.S. at 710. 
            Justice Stewart's dissenting opinion in Branzburg referred 
            to Justice Powell's concurring opinion as ``enigmatic.'' Id. 
            at 725. Judge Tatel of the D.C. Circuit wrote, ``Though 
            providing the majority's essential fifth vote, he [Powell] 
            wrote separately to outline a `case-by-case' approach that 
            fits uncomfortably, to say the least, with the Branzburg 
            majority's categorical rejection of the reporters' claims.'' 
            In re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 
            (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), 
            rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) 
            (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), 
            reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 
            2006).

            ``[C]ourts in almost every circuit around the country 
            interpreted Justice Powell's concurrence, along with parts 
            of the Court's opinion, to create a balancing test when 
            faced with compulsory process for press testimony and 
            documents outside the grand jury context.'' Association of 
            the Bar of the City of New York, The Federal Common Law of 
            Journalists' Privilege: A Position Paper (2005) at 4-5 
            [http://www.abcny.org/pdf/report/ 
            White%20paper%20on%20reporters%20 privilege.pdf](citing 
            examples).
[P. 1165, substitute for paragraph in text that begins ``The 
    Court'':]

                    The Court observed that Congress, as well as state 
            legislatures and state courts, are free to adopt privileges 
            for reporters.\59\ Although efforts in Congress have failed, 
            49 states have done so -- 33 (plus the District of Columbia) 
            by statute and 16 by court decision, with Wyoming the sole 
            holdout.\60\ As for federal courts, Federal Rule of Evidence 
            501 provides that ``the privilege of a witness . . . shall 
            be governed by the principles of the common law as they may 
            be interpreted by the courts of the United States in the 
            light of reason and experience.'' \61\ The federal courts 
            have not resolved whether the common law provides a 
            journalists' privilege.\62\
---------------------------------------------------------------------------

                    \59\ 408 U.S. at 706.
                    \60\ E.g., Cal. Evid. Code Sec.  1070; N.J. Rev. 
            Stat. Sec. Sec.  2A:84A-21, -21a, -29. The reported cases 
            evince judicial hesitancy to give effect to these statutes. 
            See, e.g., Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), 
            cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court, 
            51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. 
            denied, 427 U.S. 912 (1976). The greatest difficulty these 
            laws experience, however, is the possibility of a 
            constitutional conflict with the Fifth and Sixth Amendment 
            rights of criminal defendants. See Matter of Farber, 78 N.J. 
            259, 394 A.2d 330, cert. denied sub nom. New York Times v. 
            New Jersey, 439 U.S. 997 (1978). See also New York Times v. 
            Jascalevich, 439 U.S. 1301, 1304, 1331 (1978) (applications 
            to Circuit Justices for stay), and id. at 886 (vacating 
            stay).
                    \61\ Rule 501 also provides that, in civil actions 
            and proceedings brought in federal court under state law, 
            the availability of a privilege shall be determined in 
            accordance with state law.
                    \62\ See, e.g., In re: Grand Jury Subpoena. Judith 
            Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., 
            concurring) (citation omitted), rehearing en banc denied, 
            405 F.3d 17 (D.C. Cir. 2005 (Tatel, J., concurring), cert. 
            denied, 545 U.S. 1150 (2005), reissued with unredacted 
            material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of 
            Appeals for the District of Columbia ``is not of one mind on 
            the existence of a common law privilege'').
---------------------------------------------------------------------------
--Government as Administrator of Prisons
[P. 1171, add to n.814:]
            In Overton v. Bazzetta, 539 U.S. 126 (2003), the Court 
            applied Turner to uphold various restrictions on visitation 
            by children and by former inmates, and on all visitation 
            except attorneys and members of the clergy for inmates with 
            two or more substance-abuse violations; an inmate subject to 
            the latter restriction could apply for reinstatement of 
            visitation privileges after two years. ``If the withdrawal 
            of all visitation privileges were permanent or for a much 
            longer period, or if it were applied in an arbitrary manner 
            to a particular inmate, the case would present different 
            considerations.'' Id. at 137.
[P. 1171: substitute in text for material between n.814 and 
    n.817:]


            Four factors ``are relevant in determining the 
            reasonableness of a regulation at issue.'' \63\ ``First, is 
            there a valid, rational connection between the prison 
            regulation and the legitimate governmental interest put 
            forward to justify it? Second, are there alternative means 
            of exercising the right that remain open to prison inmates? 
            Third, what impact will accommodation of the asserted 
            constitutional right . . . have on guards and other inmates, 
            and on the allocation of prison resources generally? And, 
            fourth, are ready alternatives for furthering the 
            governmental interest available?'' \64\ Two years after 
            Turner v. Safley, in Thornburgh v. Abbott, the Court 
            restricted Procunier v. Martinez to the regulation of 
            outgoing correspondence, finding that the needs of prison 
            security justify a more deferential standard for prison 
            regulations restricting incoming material, whether those 
            incoming materials are correspondence from other prisoners, 
            correspondence from nonprisoners, or outside 
            publications.\65\
---------------------------------------------------------------------------


                    \63\ 482 U.S. at 89.
                    \64\ Beard v. Banks,126 S. Ct. 2572, 2578 (2006) 
            (citations and internal quotation marks omitted; this 
            quotation quotes language from Turner v. Safley, 482 U.S. at 
            89-90).
                    \65\ 490 U.S. 401, 411-14 (1989). Thornburgh v. 
            Abbott noted that, if regulations deny prisoners 
            publications on the basis of their content, but the grounds 
            on which the regulations do so is content-neutral, e.g., to 
            protect prison security), then the regulations will be 
            deemed neutral. Id. at 415-16.
---------------------------------------------------------------------------

                    In Beard v. Banks, a plurality of the Supreme Court 
            upheld ``a Pennsylvania prison policy that `denies 
            newspapers, magazines, and photographs' to a group of 
            specially dangerous and recalcitrant inmates.'' \66\ These 
            inmates were housed in Pennsylvania's Long Term Segregation 
            Unit and one of the prison's penological rationales for its 
            policy, which the plurality found to satisfy the four Turner 
            factors, was to motivate better behavior on the part of the 
            prisoners by providing them with an incentive to move back 
            to the regular prison population.\67\ Applying the four 
            Turner factors to this rationale, the plurality found that 
            (1) there was a logical connection between depriving inmates 
            of newspapers and magazines and providing an incentive to 
            improve behavior; (2) the Policy provided no alternatives to 
            the deprivation of newspapers and magazines, but this was 
            ``not `conclusive' of the reasonableness of the Policy''; 
            (3) the impact of accommodating the asserted constitutional 
            right would be negative; and (4) no alternative would 
            ``fully accommodate the prisoner's rights at de minimis cost 
            to valid penological interests.'' \68\ The plurality 
            believed that its ``real task in this case is not balancing 
            these factors, but rather determining whether the Secretary 
            shows more than simply a logical relation, that is, whether 
            he shows a reasonable relation'' between the Policy and 
            legitimate penological objections, as Turner requires.\69\ 
            The plurality concluded that he had. Justices Thomas and 
            Scalia concurred in the result but would do away with Turner 
            factors because they believe that ``States are free to 
            define and redefine all types of punishment, including 
            imprisonment, to encompass various types of deprivation -- 
            provided only that those deprivations are consistent with 
            the Eighth Amendment.\70\
---------------------------------------------------------------------------

                    \66\ 126 S. Ct. 2572, 2575 (2006). This was a 4-2-2 
            decision, with Justice Alito, who had written the court of 
            appeals decision, not participating.
                    \67\ 126 S. Ct. at 2579.
                    \68\ 126 S. Ct. at 2579-2580.
                    \69\ 126 S. Ct. at 2580.
                    \70\ 126 S. Ct. at 2582-2583 (Thomas, J., 
            concurring), quoting Overton v. Bazzetta, 539 U.S. at 139 
            (Thomas, J., concurring) (emphasis originally in Overton).
---------------------------------------------------------------------------
--Government and Power of the Purse
[P. 1176, add to text at end of section:]

                    In United States v. American Library Association, 
            Inc., a four-justice plurality of the Supreme Court upheld 
            the Children's Internet Protection Act (CIPA), which, as the 
            plurality summarized it, provides that a public school or 
            ``library may not receive federal assistance to provide 
            Internet access unless it installs software to block images 
            that constitute obscenity or child pornography, and to 
            prevent minors from obtaining access to material that is 
            harmful to them.'' \71\ The plurality considered whether 
            CIPA imposes an unconstitutional condition on the receipt of 
            federal assistance by requiring public libraries (public 
            schools were not involved in the case) to limit their 
            freedom of speech if they accept federal funds. The 
            plurality, citing Rust v. Sullivan, found that, assuming 
            that government entities have First Amendment rights (it did 
            not decide the question), CIPA does not infringe them. This 
            is because CIPA does not deny a benefit to libraries that do 
            not agree to use filters; rather, the statute ``simply 
            insist[s] that public funds be spent for the purposes for 
            which they were authorized.'' \72\ The plurality 
            distinguished Legal Services Corporation v. Velazquez on the 
            ground that public libraries have no role comparable to that 
            of legal aid attorneys ``that pits them against the 
            Government, and there is no comparable assumption that they 
            must be free of any conditions that their benefactors might 
            attach to the use of donated funds or other assistance.'' 
            \73\
---------------------------------------------------------------------------

                    \71\ 539 U.S. 194, 199 (2003).
                    \72\ 539 U.S. at 211.
                    \73\ 539 U.S. at 213 (emphasis in original). Other 
            grounds for the plurality decision are discussed under 
            ``Non-obscene But Sexually Explicit and Indecent 
            Expression'' and ``Internet as Public Forum.''
---------------------------------------------------------------------------

                    In Rumsfeld v. Forum for Academic and Institutional 
            Rights, Inc., the Supreme Court upheld the Solomon 
            Amendment, which provides that, in the Court's summary, ``if 
            any part of an institution of higher education denies 
            military recruiters access equal to that provided other 
            recruiters, the entire institution would lose certain 
            federal funds.'' \74\ FAIR, the group that challenged the 
            Solomon Amendment, is an association of law schools that 
            barred military recruiting on their campuses because of the 
            military's discrimination against homosexuals. FAIR 
            challenged the Solomon Amendment as violating the First 
            Amendment because it forced schools to choose between 
            enforcing their nondiscrimination policy against military 
            recruiters and continuing to receive specified federal 
            funding. The Court concluded: ``Because the First Amendment 
            would not prevent Congress from directly imposing the 
            Solomon Amendment's access requirement, the statute does not 
            place an unconstitutional condition on the receipt of 
            federal funds.'' \75\ The Court found that ``[t]he Solomon 
            Amendment neither limits what law schools may say nor 
            requires them to say anything. . . . It affects what law 
            schools must do -- afford equal access to military 
            recruiters -- not what they may or may not say.'' \76\ The 
            law schools' conduct in barring military recruiters, the 
            Court found, ``is not inherently expressive,'' and, 
            therefore, unlike flag burning, for example, is not 
            ``symbolic speech.'' \77\ Applying the O'Brien test for 
            restrictions on conduct that have an incidental effect on 
            speech, the Court found that the Solomon Amendment clearly 
            ``promotes a substantial government interest that would be 
            achieved less effectively absent the regulation.'' \78\
---------------------------------------------------------------------------

                    \74\ 126 S. Ct. 1297, 1302 (2006).
                    \75\ 126 S. Ct. at 1307. The Court stated that 
            Congress' authority to directly require campus access for 
            military recruiters comes from its Article I, section 8, 
            powers to provide for the common defense, to raise and 
            support armies, and to provide and maintain a navy. 126 S. 
            Ct. at 1306.
                    \76\ 126 S. Ct. at 1307.
                    \77\ 126 S. Ct. at 1310.
                    \78\ 126 S. Ct. at 1311.
---------------------------------------------------------------------------

                    The Court also found that the Solomon Amendment did 
            not unconstitutionally compel schools to speak, or even to 
            host or accommodate the government's message. As for 
            compelling speech, law schools must ``send e-mails and post 
            notices on behalf of the military to comply with the Solomon 
            Amendment. . . . This sort of recruiting assistance, 
            however, is a far cry from the compelled speech in Barnette 
            and Wooley. . . . [It] is plainly incidental to the Solomon 
            Amendment's regulation of conduct.'' \79\ As for forcing one 
            speaker to host or accommodate another, ``[t]he compelled-
            speech violation in each of our prior cases . . . resulted 
            from the fact that the complaining speaker's own message was 
            affected by the speech it was forced to accommodate.'' \80\ 
            By contrast, the Court wrote, ``Nothing about recruiting 
            suggests that law schools agree with any speech by 
            recruiters, and nothing in the Solomon Amendment restricts 
            what the law schools may say about the military's 
            policies.'' \81\ Finally, the Court found that the Solomon 
            Amendment was not analogous to the New Jersey law that had 
            required the Boy Scouts to accept a homosexual scoutmaster, 
            and that the Supreme Court struck down as violating the Boy 
            Scouts' ``right of expressive association.'' \82\ 
            Recruiters, unlike the scoutmaster, are ``outsiders who come 
            onto campus for the limited purpose of trying to hire 
            students -- not to become members of the school's expressive 
            association.'' \83\
---------------------------------------------------------------------------

                    \79\ 126 S. Ct. at 1308.
                    \80\ 126 S. Ct. at 1309.
                    \81\ 126 S. Ct. at 1310.
                    \82\ 126 S. Ct. at 1312, quoting Boy Scouts of 
            America v. Dale, 530 U.S. 640, 644 (2000).
                    \83\ 126 S. Ct. at 1312.
---------------------------------------------------------------------------
Government Regulation of Communications Industries
--Commercial Speech
[P. 1179, add to n.862:]
            In Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002), cert. 
            dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and 
            deceptive practices for allegedly false statements it made 
            concerning the working conditions under which its products 
            were manufactured. The California Supreme Court ruled that 
            the suit could proceed, and the Supreme Court granted 
            certioriari, but then dismissed it as improvidently granted, 
            with a concurring and two dissenting opinions. The issue 
            left undecided was whether Nike's statements, though they 
            concerned a matter of public debate and appeared in press 
            releases and letters rather than in advertisements for its 
            products, should be deemed ```commercial speech' because 
            they might affect consumers' opinions about the business as 
            a good corporate citizen and thereby affect their purchasing 
            decisions.'' Id. at 657 (Stevens, J., concurring). Nike 
            subsequently settled the suit.
Government Restraint of Content of Expression
--Group Libel, Hate Speech
[P. 1206, add new paragraph at end of section:]

                    In Virginia v. Black, the Court held that its 
            opinion in R.A.V. did not make it unconstitutional for a 
            state to prohibit burning a cross with the intent of 
            intimidating any person or group of persons.\84\ Such a 
            prohibition does not discriminate on the basis of a 
            defendant's beliefs -- ``as a factual matter it is not true 
            that cross burners direct their intimidating conduct solely 
            to racial or religious minorities. . . . The First Amendment 
            permits Virginia to outlaw cross burning done with the 
            intent to intimidate because burning a cross is a 
            particularly virulent form of intimidation. Instead of 
            prohibiting all intimidating messages, Virginia may choose 
            to regulate this subset of intimidating messages. . . .'' 
            \85\
---------------------------------------------------------------------------

                    \84\ 538 U.S. 343 (2003). A plurality held, however, 
            that a statute may not presume, from the fact that a 
            defendant burned a cross, that he had an intent to 
            intimidate. The state must prove that he did, as ``a burning 
            cross is not always intended to intimidate,'' but may 
            constitute a constitutionally protected expression of 
            opinion. 538 U.S. at 365-66.
                    \85\ 538 U.S. at 362-63.
---------------------------------------------------------------------------
--Non-obscene but Sexually Explicit and Indecent Expression
[P. 1234. add to text after n.1254:]

                    Upon remand, the Third Circuit again upheld the 
            preliminary injunction, and the Supreme Court affirmed and 
            remanded the case for trial. The Supreme Court found that 
            the district court had not abused its discretion in granting 
            the preliminary injunction, because the government had 
            failed to show that proposed alternatives to COPA would not 
            be as effective in accomplishing its goal. The primary 
            alternative to COPA, the Court noted, is blocking and 
            filtering software. Filters are less restrictive than COPA 
            because ``[t]hey impose selective restrictions on speech at 
            the receiving end, not universal restriction at the 
            source.'' \86\ Subsequently, a federal district court issued 
            a permanent injunction against the enforcement of COPA.\87\
---------------------------------------------------------------------------

                    \86\ Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). 
            Justice Breyer, dissenting, wrote that blocking and 
            filtering software is not a less restrictive alternative 
            because ``it is part of the status quo'' and ``[i]t is 
            always less restrictive to do nothing than to do 
            something.'' Id. at 684. In addition, Breyer asserted, 
            ``filtering software depends upon parents willing to decide 
            where their children will surf the Web and able to enforce 
            that decision.'' Id. The majority opinion countered that 
            Congress ``may act to encourage the use of filters,'' and 
            ``[t]he need for parental cooperation does not automatically 
            disqualify a proposed less restrictive alternative.'' Id. at 
            669.
                    \87\ American Civil Liberties Union v. Gonzales, 478 
            F. Supp. 2d 775 (E.D. Pa. 2007).
---------------------------------------------------------------------------

                    In United States v. American Library Association, a 
            four-justice plurality of the Supreme Court upheld the 
            Children's Internet Protection Act (CIPA), which, as the 
            plurality summarized it, provides that a public school or 
            ``library may not receive federal assistance to provide 
            Internet access unless it installs software to block images 
            that constitute obscenity or child pornography, and to 
            prevent minors from obtaining access to material that is 
            harmful to them.'' \88\ The plurality asked ``whether 
            libraries would violate the First Amendment by employing the 
            filtering software that CIPA requires.'' \89\ Does CIPA, in 
            other words, effectively violate library patrons' rights? 
            The plurality concluded that it does not, after finding that 
            ``Internet access in public libraries is neither a 
            `traditional' nor a `designated' public forum,'' and that it 
            therefore would not be appropriate to apply strict scrutiny 
            to determine whether the filtering requirements are 
            constitutional.\90\
---------------------------------------------------------------------------

                    \88\ 539 U.S. 194, 199 (2003).
                    \89\ 539 U.S. at 203.
                    \90\ 539 U.S. at 205.
---------------------------------------------------------------------------

                    The plurality acknowledged ``the tendency of 
            filtering software to `overblock' -- that is, to erroneously 
            block access to constitutionally protected speech that falls 
            outside the categories that software users intend to 
            block.'' \91\ It found, however, that, ``[a]ssuming that 
            such erroneous blocking presents constitutional 
            difficulties, any such concerns are dispelled by the ease 
            with which patrons may have the filtering software 
            disabled.'' \92\
---------------------------------------------------------------------------

                    \91\ 539 U.S. at 208.
                    \92\ 539 U.S. at 209. Justice Kennedy, concurring, 
            noted that, ``[i]f some libraries do not have the capacity 
            to unblock specific Web sites or to disable the filter . . . 
            that would be the subject for an as-applied challenge, not 
            the facial challenge made in this case.'' Id. at 215. 
            Justice Souter, dissenting, noted that ``the statute says 
            only that a library `may' unblock, not that it must.'' Id. 
            at 233.
---------------------------------------------------------------------------

                    The plurality also considered whether CIPA imposes 
            an unconstitutional condition on the receipt of federal 
            assistance -- in other words, does it violate public 
            libraries' rights by requiring them to limit their freedom 
            of speech if they accept federal funds? The plurality found 
            that, assuming that government entities have First Amendment 
            rights (it did not decide the question), ``CIPA does not 
            `penalize' libraries that choose not to install such 
            software, or deny them the right to provide their patrons 
            with unfiltered Internet access. Rather, CIPA simply 
            reflects Congress' decision not to subsidize their doing 
            so.'' \93\
---------------------------------------------------------------------------

                    \93\ 539 U.S. at 212.
---------------------------------------------------------------------------
Speech Plus -- The Constitutional Law of Leafleting, 
    Picketing, and Demonstrating
--The Public Forum
[P. 1245, substitute for final paragraph of section:]

                    In United States v. American Library Association, 
            Inc., a four-justice plurality of the Supreme Court found 
            that ``Internet access in public libraries is neither a 
            `traditional' nor a `designated' public forum.'' \94\ The 
            plurality therefore did not apply ``strict scrutiny'' in 
            upholding the Children's Internet Protection Act, which, as 
            the plurality summarized it, provides that a public school 
            or ``library may not receive federal assistance to provide 
            Internet access unless it installs software to block images 
            that constitute obscenity or child pornography, and to 
            prevent minors from obtaining access to material that is 
            harmful to them.'' \95\ The plurality found that Internet 
            access in public libraries is not a ``traditional'' public 
            forum because ``[w]e have `rejected the view that 
            traditional public forum status extends beyond its 
            historical confines.''' \96\ And Internet access at public 
            libraries is not a ``designated'' public forum because ``[a] 
            public library does not acquire Internet terminals in order 
            to create a public forum for Web publishers to express 
            themselves, any more than it collects books in order to 
            provide a public forum for the authors of books to speak. It 
            provides Internet access, not to `encourage a diversity of 
            views from private speakers,' but for the same reasons it 
            offers other library resources: to facilitate research, 
            learning, and recreational pursuits by furnishing materials 
            of requisite and appropriate quality.'' \97\
---------------------------------------------------------------------------

                    \94\ 539 U.S. 194, 205 (2003).
                    \95\ 539 U.S. at 199.
                    \96\ 539 U.S. at 206.
                    \97\ 539 U.S. at 206 (citation omitted).
---------------------------------------------------------------------------

                    Nevertheless, although Internet access in public 
            libraries is not a public forum, and particular Web sites, 
            like particular newspapers, would not constitute public 
            fora, the Internet as a whole might be viewed as a public 
            forum, despite its lack of a historic tradition. The Supreme 
            Court has not explicitly held that the Internet as a whole 
            is a public forum, but, in Reno v. ACLU, which struck down 
            the Communications Decency Act's prohibition of ``indecent'' 
            material on the Internet, the Court noted that the Internet 
            ``constitutes a vast platform from which to address and hear 
            from a worldwide audience of millions of readers, viewers, 
            researchers, and buyers. Any person or organization with a 
            computer connected to the Internet can `publish' 
            information.'' \98\
---------------------------------------------------------------------------

                    \98\ A federal court of appeals wrote: ``Aspects of 
            cyberspace may, in fact, fit into the public forum category, 
            although the Supreme Court has also suggested that the 
            category is limited by tradition. Compare Forbes, 523 U.S. 
            at 679 (''reject[ing] the view that traditional public forum 
            status extends beyond its historic confines`` [to a public 
            television station]) with Reno v. ACLU, 521 U.S. 844, 851-53 
            (1997) (recognizing the communicative potential of the 
            Internet, specifically the World Wide Web).'' Putnam Pit, 
            Inc. v. City of Cookeville, 221 F.3d 834, 843 (6th Cir. 
            2000) (alternate citations to Forbes and Reno omitted).
---------------------------------------------------------------------------
--Door-to-Door Solicitation
[P. 1262, add to n.1312:]
            In Illinois ex rel. Madigan v. Telemarketing Assocs., 538 
            U.S. 600 (2003), the Court held unanimously that the First 
            Amendment does not prevent a state from bringing fraud 
            actions against charitable solicitors who falsely represent 
            that a ``significant'' amount of each dollar donated would 
            be used for charitable purposes.
                            FOURTH AMENDMENT

                           SEARCH AND SEIZURE

History and Scope of the Amendment
--Scope of the Amendment
[P. 1285, add to n.22:]
            Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006) 
            (warrantless entry into a home when police have an 
            objectively reasonable basis for believing that an occupant 
            is seriously injured or imminently threatened with such 
            injury).
--The Interest Protected
[P. 1291, add to n.53 after citation to Steagald v. United 
    States:]
            Kirk v. Louisiana, 536 U.S. 635 (2002) (per curiam).
--Arrests and Other Detentions
[P. 1292, add to n.61 after citation to Terry v. Ohio:]
            Kaupp v. Texas, 538 U.S. 626 (2003).
[P. 1293, add new footnote after ``person,'' in second line 
    on page:]
            The justification must be made to a neutral magistrate, not 
            to the arrestee. There is no constitutional requirement that 
            an officer inform an arrestee of the reason for his arrest. 
            Devenpeck v. Alford, 543 U.S. 146, 155 (2004) (the offense 
            for which there is probable cause to arrest need not be 
            closely related to the offense stated by the officer at the 
            time of arrest).
[P. 1294, add to n.69 after citation to Taylor v. Alabama:]
            Kaupp v. Texas, 538 U.S. 626 (2003).
Searches and Seizures Pursuant to Warrant
--Probable Cause
[P. 1301, add to n. 101:]
            An ``anticipatory'' warrant does not violate the Fourth 
            Amendment as long as there is probable cause to believe that 
            the condition precedent to execution of the search warrant 
            will occur and that, once it has occurred, ``there is a fair 
            probability that contraband or evidence of a crime will be 
            found in a specified place.'' United States v. Grubbs, 126 
            S. Ct. 1494, 1499, 1500 (2006), quoting Illinois v. Gates, 
            462 U.S. 213, 238 (1983). ``An anticipatory warrant is `a 
            warrant based upon an affidavit showing probable cause that 
            at some future time (but not presently) certain evidence of 
            a crime will be located at a specified place.''' 126 S. Ct. 
            at 1498.
--Particularity
[P. 1304, add to text at end of section:]


            The purpose of the particularity requirement extends beyond 
            prevention of general searches; it also assures the person 
            whose property is being searched of the lawful authority of 
            the executing officer and of the limits of his power to 
            search. It follows, therefore, that the warrant itself must 
            describe with particularity the items to be seized, or that 
            such itemization must appear in documents incorporated by 
            reference in the warrant and actually shown to the person 
            whose property is to be searched.\1\
---------------------------------------------------------------------------


                    \1\ Groh v. Ramirez, 540 U.S. 551 (2004) (a search 
            based on a warrant that did not describe the items to be 
            seized was ``plainly invalid''; particularity contained in 
            supporting documents not cross-referenced by the warrant and 
            not accompanying the warrant is insufficient). United States 
            v. Grubbs, 126 S. Ct. 1494, 1500-01 (2006) (because the 
            language of the Fourth Amendment ``specifies only two 
            matters that must be `particularly describ[ed]' in the 
            warrant: `the place to be searched' and `the persons or 
            things to be seized[,]' . . . the Fourth Amendment does not 
            require that the triggering condition for an anticipatory 
            warrant be set forth in the warrant itself.''
---------------------------------------------------------------------------
--Execution of Warrants
[P. 1311, add to text after n.168:]


            Similarly, if officers choose to knock and announce before 
            searching for drugs, circumstances may justify forced entry 
            if there is not a prompt response.\2\
---------------------------------------------------------------------------


                    \2\ United States v. Banks, 540 U.S. 31 (2003) 
            (forced entry was permissible after officers executing a 
            warrant to search for drugs knocked, announced ``police 
            search warrant,'' and waited 15-20 seconds with no 
            response).
---------------------------------------------------------------------------
[P. 1312, add to n.173:]
            But see Maryland v. Pringle, 540 U.S. 366 (2003) 
            (distinguishing Ybarra on basis that passengers in car often 
            have ``common enterprise,'' and noting that the tip in Di Re 
            implicated only the driver).
[P. 1312, add to text after n.175:]


            For the same reasons, officers may use ``reasonable force,'' 
            including handcuffs, to effectuate a detention.\3\
---------------------------------------------------------------------------


                    \3\ Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (also 
            upholding questioning the handcuffed detainee about her 
            immigration status).
---------------------------------------------------------------------------
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest: Stop-and-Frisk
[P. 1315, add to text after first sentence of paragraph that 
    begins on page, and begin new paragraph with second 
    sentence, as indicated:]


            The Court provided a partial answer in 2004, when it upheld 
            a state law that required a suspect to disclose his name in 
            the course of a valid Terry stop.\4\ Questions about a 
            suspect's identity ``are a routine and accepted part of many 
            Terry stops,'' the Court explained.\5\
---------------------------------------------------------------------------


                    \4\ Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177 
            (2004).
                    \5\ 542 U.S. at 186.
---------------------------------------------------------------------------

                    After Terry, the standard for stops . . . .

[P. 1318, add to n.208:]
            See also United States v. Drayton, 536 U.S. 194 (2002), 
            applying Bostick to uphold a bus search in which one officer 
            stationed himself in the front of the bus and one in the 
            rear, while a third officer worked his way from rear to 
            front, questioning passengers individually. Under these 
            circumstances, and following the arrest of his traveling 
            companion, the defendant had consented to the search of his 
            person.
[P. 1319, add to n.213:]
            Cf. Illinois v. Caballes, 543 U.S. 405 (2005) (a canine 
            sniff around the perimeter of a car following a routine 
            traffic stop does not offend the Fourth Amendment if the 
            duration of the stop is justified by the traffic offense).
--Vehicular Searches
[P. 1324, add to n.244 after parenthetical that ends with 
    ``Mexican ancestry'':]
            But cf. United States v. Arvizu, 534 U.S. 266 (2002) 
            (reasonable suspicion justified stop by border agents of 
            vehicle traveling on unpaved backroads in an apparent effort 
            to evade a border patrol checkpoint on the highway).
[P. 1325, add to n.247:]
            See also United States v. Flores-Montano, 541 U.S. 149 
            (2004) (upholding a search at the border involving 
            disassembly of a vehicle's fuel tank).
[P. 1325, add to n.248:]
            Edmond was distinguished in llinois v. Lidster, 540 U.S. 419 
            (2004), upholding use of a checkpoint to ask motorists for 
            help in solving a recent hit-and-run accident that had 
            resulted in death. The public interest in solving the crime 
            was deemed ``grave,'' while the interference with personal 
            liberty was deemed minimal.
[P. 1325, add to n.250:]
            And, because there also is no legitimate privacy interest in 
            possessing contraband, and because properly conducted canine 
            sniffs are ``generally likely, to reveal only the presence 
            of contraband,'' police may conduct a canine sniff around 
            the perimeter of a vehicle stopped for a traffic offense. 
            Illinois v. Caballes, 543 U.S. 405, 409 (2005).
[P. 1325, add to n.252 after citation to New York v. 
    Belton:]
            Thornton v. United States, 541 U.S. 615 (2004) (the Belton 
            rule applies regardless of whether the arrestee exited the 
            car at the officer's direction, or whether he did so prior 
            to confrontation);
[P. 1326, add to end of sentence containing n.258:]

                    , or unless there is individualized suspicion of 
            criminal activity by the passengers.\6\
---------------------------------------------------------------------------

                    \6\ Maryland v. Pringle, 540 U.S. 366 (2003) 
            (probable cause to arrest passengers based on officers 
            finding $783 in glove compartment and cocaine hidden beneath 
            back seat armrest, and on driver and passengers all denying 
            ownership of the cocaine).
---------------------------------------------------------------------------
--Consent Searches
[P. 1328, add to n. 271:]
            United States v. Drayton, 536 U.S. 194, 207 (2002) (totality 
            of circumstances indicated that bus passenger consented to 
            search even though officer did not explicitly state that 
            passenger was free to refuse permission).
[P. 1329, add to text at end of section:]


            If, however, one occupant consents to a search of shared 
            premises, but a physically present co-occupant expressly 
            objects to the search, the search is unreasonable.\7\
---------------------------------------------------------------------------


                    \7\ Georgia v. Randolph, 126 S. Ct. 1515 (2006) 
            (warrantless search of a defendant's residence based on his 
            estranged wife's consent was unreasonable and invalid as 
            applied to a physically present defendant who expressly 
            refused to permit entry). The Court in Randolph admitted 
            that it was ``drawing a fine line,'' id. at 1527, between 
            situations where the defendant is present and expressly 
            refuses consent, and that of United States v. Matlock, 415 
            U.S. 164, 171 (1974), and Illinois v. Rodriguez, 497 U.S. 
            177 (1990), where the defendants were nearby but were not 
            asked for their permission. In a dissenting opinion, Chief 
            Justice Roberts observed that the majority's ruling 
            ``provides protection on a random and happenstance basis, 
            protecting, for example, a co-occupant who happens to be at 
            the front door when the other occupant consents to a search, 
            but not one napping or watching television in the next 
            room.'' Id. at 1531.
---------------------------------------------------------------------------
--Border Searches
[P. 1330, add to n.283 after citation to United States v. 
    Cortez:]
            , and United States v. Arvizu, 534 U.S. 266 (2002)
--Prisons and Regulation of Probation
[P. 1333, change heading to ``Prisons and Regulation of 
    Probation and Parole'']
[P. 1334, add to text at end of section:]


            A warrant is also not required if the purpose of a search of 
            a probationer is investigate a crime rather than to 
            supervise probation.\8\
---------------------------------------------------------------------------


                    \8\ United States v. Knights, 534 U.S. 112 (2005) 
            (probationary status informs both sides of the 
            reasonableness balance).
---------------------------------------------------------------------------

                    ``[O]n the `continuum' of state-imposed punishments 
            . . . , parolees have [even] fewer expectations of privacy 
            than probationers, because parole is more akin to 
            imprisonment than probation is to imprisonment.'' \9\ The 
            Fourth Amendment, therefore, is not violated by a 
            warrantless search of a parolee that is predicated upon a 
            parole condition to which a prisoner agreed to observe 
            during the balance of his sentence.\10\
---------------------------------------------------------------------------

                    \9\ Samson v. California, 126 S. Ct. 2193, 2198 
            (2006).
                    \10\ 126 S. Ct. at 2199. The parole condition at 
            issue in Samson required prisoners to ``agree in writing to 
            be subject to a search or seizure by a parole officer or 
            other peace officer at any time of the day or night, with or 
            without a search warrant and with or without cause.'' Id. at 
            2196, quoting Cal. Penal Code Ann. 
            Sec.  3067(a).
---------------------------------------------------------------------------
--Drug Testing
[P. 1336, add to text after n.322:]

                    Seven years later, the Court in Board of Education 
            v. Earls \11\ extended Vernonia to uphold a school system's 
            drug testing of all junior high and high school students who 
            participated in extra-curricular activities. The lowered 
            expectation of privacy that athletes have ``was not 
            essential'' to the decision in Vernonia, Justice Thomas 
            wrote for a 5-4 Court majority.\12\ Rather, that decision 
            ``depended primarily upon the school's custodial 
            responsibility and authority.'' \13\ Another distinction was 
            that, although there was some evidence of drug use among the 
            district's students, there was no evidence of a significant 
            problem, as there had been in Vernonia. Rather, the Court 
            referred to ``the nationwide epidemic of drug use,'' and 
            stated that there is no ``threshold level'' of drug use that 
            need be present.\14\ Because the students subjected to 
            testing in Earls had the choice of not participating in 
            extra-curricular activities rather than submitting to drug 
            testing, the case stops short of holding that public school 
            authorities may test all junior and senior high school 
            students for drugs. Thus, although the Court's rationale 
            seems broad enough to permit across-the-board testing,\15\ 
            Justice Breyer's concurrence, emphasizing among other points 
            that ``the testing program avoids subjecting the entire 
            school to testing,'' \16\ raises some doubt on this score. 
            The Court also left another basis for limiting the ruling's 
            sweep by asserting that ``regulation of extracurricular 
            activities further diminishes the expectation of privacy 
            among schoolchildren.'' \17\
---------------------------------------------------------------------------

                    \11\ 536 U.S. 822 (2002).
                    \12\ 536 U.S. at 831.
                    \13\ 536 U.S. at 831
                    \14\ 536 U.S. at 836.
                    \15\ Drug testing was said to be a ``reasonable'' 
            means of protecting the school board's ``important interest 
            in preventing and deterring drug use among its students,'' 
            and the decision in Vernonia was said to depend ``primarily 
            upon the school's custodial responsibility and authority.'' 
            536 U.S. at 838, 831.
                    \16\ Concurring Justice Breyer pointed out that the 
            testing program ``preserves an option for a conscientious 
            objector,'' who can pay a price of nonparticipation that is 
            ``serious, but less severe than expulsion.'' 536 U.S. at 
            841. Dissenting Justice Ginsburg pointed out that 
            extracurricular activities are ``part of the school's 
            educational program'' even though they are in a sense 
            ``voluntary.'' ``Voluntary participation in athletics has a 
            distinctly different dimension'' because it ``expose[s] 
            students to physical risks that schools have a duty to 
            mitigate.'' Id. at 845, 846.
                    \17\ 536 U.S. at 831-32. The best the Court could do 
            to support this statement was to assert that ``some of these 
            clubs and activities require occasional off-campus travel 
            and communal undress,'' to point out that all 
            extracurricular activities ``have their own rules and 
            requirements,'' and to quote from general language in 
            Vernonia. Id. Dissenting Justice Ginsburg pointed out that 
            these situations requiring change of clothes on occasional 
            out-of-town trips are ``hardly equivalent to the routine 
            communal undress associated with athletics.'' Id. at 848.
---------------------------------------------------------------------------
Enforcing the Fourth Amendment: The Exclusionary Rule
--Alternatives to the Exclusionary Rule
[P. 1344, add to n.361 after citation to Saucier v. Katz:]
            See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) 
            (because cases create a ``hazy border between excessive and 
            acceptable force,'' an officer's misunderstanding as to her 
            authority to shoot a suspect attempting to flee in a vehicle 
            was not unreasonable).
--Narrowing Application of the Exclusionary Rule
[P. 1354, add to text after n.409:]


            In addition, a violation of the ``knock-and-announce'' 
            procedure that police officers must follow to announce their 
            presence before entering a residence with a lawful warrant 
            \18\ does not require suppression of the evidence gathered 
            pursuant to the warrant.\19\
---------------------------------------------------------------------------


                    \18\ The ``knock and announce'' requirement is 
            codified at 18 U.S.C. Sec.  3109, and the Court has held 
            that the rule is also part of the Fourth Amendment 
            reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 
            (1995).
                    \19\ Hudson v. Michigan, 126 S. Ct. 2159 (2006). 
            Writing for the majority, Justice Scalia explained that the 
            exclusionary rule was inappropriate because the purpose of 
            the knock-and-announce requirement was to protect human 
            life, property, and the homeowner's privacy and dignity; the 
            requirement has never protected an individual's interest in 
            preventing seizure of evidence described in a warrant. Id. 
            at 2165. Furthermore, the Court believed that the 
            ``substantial social costs'' of applying the exclusionary 
            rule would outweigh the benefits of deterring knock-and-
            announce violations by applying it. Id. The Court also 
            reasoned that other means of deterrence, such as civil 
            remedies, were available and effective, and that police 
            forces have become increasingly professional and respectful 
            of constitutional rights in the past half-century. Id. at 
            2168. Justice Kennedy wrote a concurring opinion emphasizing 
            that ``the continued operation of the exclusionary rule . . 
            . is not in doubt.'' Id. at 2170. In dissent, Justice Breyer 
            asserted that the majority's decision ``weakens, perhaps 
            destroys, much of the practical value of the Constitution's 
            knock-and-announce protection.'' Id. at 2171.
                             FIFTH AMENDMENT

                             DOUBLE JEOPARDY

Development and Scope
[P. 1370, add to end of sentence containing n.58:]

                    , and to permit a federal prosecution after a 
            conviction in an Indian tribal court for an offense stemming 
            from the same conduct.\1\
---------------------------------------------------------------------------

                    \1\ United States v. Lara, 541 U.S. 193 (2004) 
            (federal prosecution for assaulting a federal officer after 
            tribal conviction for ``violence to a policeman''). The 
            Court concluded that Congress has power to recognize tribal 
            sovereignty to prosecute non-member Indians, that Congress 
            had done so, and that consequently the tribal prosecution 
            was an exercise of tribal sovereignty, not an exercise of 
            delegated federal power on which a finding of double 
            jeopardy could be based.
---------------------------------------------------------------------------
Reprosecution Following Conviction
--Sentence Increases
[P. 1385, add to n.134:]
            But see Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) 
            (state may seek the death penalty in a retrial when 
            defendant appealed following discharge of the sentencing 
            jury under a statute authorizing discharge based on the 
            court's ``opinion that further deliberation would not result 
            in a unanimous agreement as to the sentence, in which case 
            the court shall sentence the defendant to life 
            imprisonment'').
Reprosecution Following Acquittal
--Acquittal by the Trial Judge
[P. 1379, substitute for first paragraph of section:]

                    When a trial judge acquits a defendant, that action 
            concludes the matter to the same extent that acquittal by 
            jury verdict does.\2\ There is no possibility of retrial for 
            the same offense.\3\ But it may be difficult at times to 
            determine whether the trial judge's action was in fact an 
            acquittal or whether it was a dismissal or some other 
            action, which the prosecution may be able to appeal or the 
            judge may be able to reconsider.\4\ The question is 
            ``whether the ruling of the judge, whatever its label, 
            actually represents a resolution, correct or not, of some or 
            all of the factual elements of the offense charged.'' \5\ 
            Thus, an appeal by the Government was held barred in a case 
            in which the deadlocked jury had been discharged, and the 
            trial judge had granted the defendant's motion for a 
            judgment of acquittal under the appropriate federal rule, 
            explicitly based on the judgment that the Government had not 
            proved facts constituting the offense.\6\ Even if, as 
            happened in Sanabria v. United States,\7\ the trial judge 
            erroneously excludes evidence and then acquits on the basis 
            that the remaining evidence is insufficient to convict, the 
            judgment of acquittal produced thereby is final and 
            unreviewable.\8\
---------------------------------------------------------------------------

                    \2\ United States v. Martin Linen Supply Co., 430 
            U.S. 564, 570-72 (1977); Sanabria v. United States, 437 U.S. 
            54, 63-65 (1978); Finch v. United States, 433 U.S. 676 
            (1977).
                    \3\ In Fong Foo v. United States, 369 U.S. 141 
            (1962), the Court acknowledged that the trial judge's action 
            in acquitting was ``based upon an egregiously erroneous 
            foundation,'' but it was nonetheless final and could not be 
            reviewed. Id. at 143.
                    \4\ As a general rule a state may prescribe that a 
            judge's midtrial determination of the sufficiency of the 
            prosecution's proof may be reconsidered. Smith v. 
            Massachusetts, 543 U.S. 462 (2005) (Massachusetts had not 
            done so, however, so the judge's midtrial acquittal on one 
            of three counts became final for double jeopardy purposes 
            when the prosecution rested its case).
                    \5\ United States v. Martin Linen Supply Co., 430 
            U.S. 564, 571 (1977).
                    \6\ 430 U.S. at 570-76. See also United States v. 
            Scott, 437 U.S. 82, 87-92 (1978); Smalis v. Pennsylvania, 
            476 U.S. 140 (1986) (demurrer sustained on basis of 
            insufficiency of evidence is acquittal).
                    \7\ 437 U.S. 54 (1978).
                    \8\ See also Smith v. Massachusetts, 543 U.S. 462 
            (2005) (acquittal based on erroneous interpretation of 
            precedent).
---------------------------------------------------------------------------

                                 SELF-INCRIMINATION

Development and Scope
[P. 1396, add to text following n.185:]


            , and there can be no valid claim if there is no criminal 
            prosecution.\9\
---------------------------------------------------------------------------


                    \9\ Chavez v. Martinez, 538 U.S. 760 (2003) 
            (rejecting damages claim brought by suspect interrogated in 
            hospital but not prosecuted).
---------------------------------------------------------------------------
Confessions: Police Interrogation, Due Process, and Self-
    Incrimination
--Miranda v. Arizona
[P. 1425, add to n.340:]
            Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court 
            determination that teenager brought to police station by his 
            parents was not ``in custody'' was not ``unreasonable'' for 
            purposes of federal habeas review).
[P. 1429, add to n.363:]
            Elstad was distinguished in Missouri v. Seibert, 542 U.S. 
            600 (2004), however, when the failure to warn prior to the 
            initial questioning was a deliberate attempt to circumvent 
            Miranda by use of a two-step interrogation technique, and 
            the police, prior to eliciting the statement for the second 
            time, did not alert the suspect that the first statement was 
            likely inadmissible.
[P. 1429, add to n.365:]
            See also Harrison v. United States, 392 U.S. 219 (1968) 
            (rejecting as tainted the prosecution's use at the second 
            trial of defendant's testimony at his first trial rebutting 
            confessions obtained in violation of McNabb-Mallory).
[P. 1429, substitute for clause containing n.367:]


            On the other hand, the ``fruits'' of such an unwarned 
            confession or admission may be used in some circumstances if 
            the statement was voluntary.\10\
---------------------------------------------------------------------------


                    \10\ United States v. Patane, 542 U.S. 630 (2004) 
            (allowing introduction of a pistol, described as a 
            ``nontestimonial fruit'' of an unwarned statement). See also 
            Michigan v. Tucker, 417 U.S. 433 (1974) (upholding use of a 
            witness revealed by defendant's statement elicited without 
            proper Miranda warning). Note too that confessions may be 
            the poisonous fruit of other constitutional violations, such 
            as illegal searches or arrests. E.g., Brown v. Illinois, 422 
            U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); 
            Taylor v. Alabama, 457 U.S. 687 (1982).
---------------------------------------------------------------------------

                                     DUE PROCESS

Procedural Due Process
--Aliens: Entry and Deportation
[P. 1443, add as first sentence of section:]

                    The Court has frequently said that Congress 
            exercises ``sovereign'' or ``plenary'' power over the 
            substance of immigration law, and this power is at its 
            greatest when it comes to exclusion of aliens.\11\
---------------------------------------------------------------------------

                    \11\ See discussion under Art. I, Sec.  8, cl. 4, 
            ``The Power of Congress to Exclude Aliens.''
---------------------------------------------------------------------------
[P. 1444, add as first sentence of only paragraph beginning 
    on page:]

                    Procedural due process rights are more in evidence 
            when it comes to deportation or other proceedings brought 
            against aliens already within the country.

[P. 1445, add to text following n.444:]

                    In Demore v. Kim,\12\ however, the Court indicated 
            that its holding in Zadvydas was quite limited. Upholding 
            detention of permanent resident aliens without bond pending 
            a determination of removability, the Court reaffirmed 
            Congress' broad powers over aliens. ``[W]hen the Government 
            deals with deportable aliens, the Due Process Clause does 
            not require it to employ the least burdensome means to 
            accomplish its goal.'' \13\
---------------------------------------------------------------------------

                    \12\ 538 U.S. 510 (2003). The goal of detention in 
            Zadvydas had been found to be ``no longer practically 
            attainable,'' and detention therefore ``no longer [bore] a 
            reasonable relation to the purpose for which the individual 
            was committed.'' 538 U.S. at 527.
                    \13\ 538 U.S. at 528. There was disagreement among 
            the Justices as to whether existing procedures afforded the 
            alien an opportunity for individualized determination of 
            danger to society and risk of flight.
---------------------------------------------------------------------------
--Judicial Review of Administrative or Military Proceedings
[P. 1446, add new paragraph after only full paragraph on 
    page:]

                    Failure of the Executive Branch to provide for any 
            type of proceeding for prisoners alleged to be ``enemy 
            combatants,'' whether in a military tribunal or a federal 
            court, was at issue in Hamdi v. Rumsfeld.\14\ During a 
            military action in Afghanistan,\15\ a United States citizen, 
            Yaser Hamdi, was taken prisoner. The Executive Branch argued 
            that it had authority to detain Hamdi as an ``enemy 
            combatant,'' and to deny him meaningful access to the 
            federal courts. The Court agreed that the President was 
            authorized to detain a United States citizen seized in 
            Afghanistan.\16\ However, the Court ruled that the 
            Government may not detain the petitioner indefinitely for 
            purposes of interrogation, but must give him the opportunity 
            to offer evidence that he is not an enemy combatant. At a 
            minimum, the petitioner must be given notice of the asserted 
            factual basis for holding him, must be given a fair chance 
            to rebut that evidence before a neutral decision maker, and 
            must be allowed to consult an attorney.\17\
---------------------------------------------------------------------------

                    \14\ 542 U.S. 507 (2004).
                    \15\ In response to the September 11, 2001, 
            terrorist attacks on New York City's World Trade Center and 
            the Pentagon in Washington, D.C., Congress passed the 
            ``Authorization for Use of Military Force,'' Pub. L. 107-40, 
            115 Stat. 224 (2001), which served as the basis for military 
            action against the Taliban government of Afghanistan and the 
            al Qaeda forces that were harbored there.
                    \16\ There was no opinion of the Court in Hamdi. 
            Rather, a plurality opinion, authored by Justice O'Connor 
            (joined by Chief Justice Rehnquist, Justice Kennedy and 
            Justice Breyer) relied on the statutory ``Authorization for 
            Use of Military Force'' to support the detention. Justice 
            Thomas also found that the Executive Branch had the power to 
            detain the petitioner, but he based his conclusion on 
            Article II of the Constitution.
                    \17\ 542 U.S. 533, 539 (2004). Although only a 
            plurality of the Court voted for both continued detention of 
            the petitioner and for providing these due process rights, 
            four other Justices would have extended due process at least 
            this far. Justice Souter, joined by Justice Ginsberg, while 
            rejecting the argument that Congress had authorized such 
            detention, agreed with the plurality as to the requirement 
            of providing minimal due process. Id. at 553 (concurring in 
            part, dissenting in part, and concurring in judgement). 
            Justice Scalia, joined by Justice Stevens, denied that such 
            congressional authorization was possible without a 
            suspension of the writ of habeas corpus, and thus would have 
            required a criminal prosecution of the petitioner. Id. at 
            554 (dissenting).
---------------------------------------------------------------------------

                            NATIONAL EMINENT DOMAIN POWER

Public Use
[P. 1464, add new footnote on line 3 after 
    ``determination.'':]
            Kelo v. City of New London, 125 S. Ct. 2655, 2664 (2005). 
            The taking need only be ``rationally related to a 
            conceivable public purpose.'' Id. at 2669 (Justice Kennedy 
            concurring).
[P. 1465, add to text after n.575:]


            Subsequently, the Court put forward an added indicium of 
            ``public use'': whether the government purpose could be 
            validly achieved by tax or user fee.\18\
---------------------------------------------------------------------------


                    \18\ Brown v. Legal Found. of Washington, 538 U.S. 
            216, 232 (2003). But see id. at 242 n.2 (Justice Scalia 
            dissenting).
---------------------------------------------------------------------------
[P. 1466, add new footnote at end of sentence beginning 
    ``For `public use''':]
            Most recently, the Court equated public use with ``public 
            purpose.'' Kelo v. City of New London, 125 S. Ct. 2655, 2662 
            (2005).
[P. 1466, add new paragraph to text at end of section:]

                    The expansive interpretation of public use in 
            eminent domain cases may have reached its outer limit in 
            Kelo v. City of New London.\19\ There, a five-justice 
            majority upheld as a public use the private-to-private 
            transfer of land for purposes of economic development, at 
            least in the context of a well-considered, areawide 
            redevelopment plan adopted by a municipality to invigorate a 
            depressed economy. The Court saw no principled way to 
            distinguish economic development from the economic purposes 
            endorsed in Berman and Midkiff, and stressed the importance 
            of judicial deference to the legislative judgment as to 
            public needs. At the same time, the Court cautioned that 
            private-to-private condemnations of individual properties, 
            not part of an ``integrated development plan . . . raise a 
            suspicion that a private purpose [is] afoot.'' \20\ A 
            vigorous four-justice dissent countered that localities will 
            always be able to manufacture a plausible public purpose, so 
            that the majority opinion leaves the vast majority of 
            private parcels subject to condemnation when a higher-valued 
            use is desired.\21\ Backing off from the Court's past 
            endorsements in Berman and Midkiff of a public use/police 
            power equation, the dissenters asserted that such was 
            ``errant language'' that was ``unnecessary'' to the holdings 
            of those decisions.\22\
---------------------------------------------------------------------------

                    \19\ 125 S. Ct. 2665 (2005).
                    \20\ 125 S. Ct. at 2667.
                    \21\ Written by Justice O'Connor, and joined by 
            Justices Scalia and Thomas, and Chief Justice Rehnquist.
                    \22\ 125 S. Ct. at 2675.
---------------------------------------------------------------------------
Just Compensation
[P. 1467, add to n.584 after first citation:]
            The owner's loss, not the taker's gain, is the measure of 
            such compensation. Brown v. Legal Found. of Washington, 538 
            U.S. 216, 236 (2003).
When Property is Taken
--Regulatory Takings
[P. 1483, substitute for n.683:]
            Tahoe-Sierra, 535 U.S. at 323. Tahoe-Sierra's sharp 
            physical-regulatory dichotomy is hard to reconcile with 
            dicta in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 
            (2005), to the effect that the Penn Central regulatory 
            takings test, like the physical occupations rule of Loretto, 
            ``aims to identify regulatory actions that are functionally 
            equivalent to the classic taking in which government 
            directly appropriates private property or ousts the owner 
            from his domain.''
[Pp. 1485-86, substitute for paragraph that begins on page 
    1485 and for first paragraph that begins on page 1486:]

                    The first prong of the Agins test, asking whether 
            land use controls ``substantially advance legitimate 
            governmental interests,'' has now been erased from takings 
            jurisprudence, after a quarter-century run. The proper 
            concern of regulatory takings law, said Lingle v. Chevron 
            U.S.A. Inc.,\23\ is the magnitude, character, and 
            distribution of the burdens that a regulation imposes on 
            property rights. In ``stark contrast,'' the ``substantially 
            advances'' test addresses the means-end efficacy of a 
            regulation, more in the nature of a due process inquiry.\24\ 
            As such, it is not a valid takings test.
---------------------------------------------------------------------------

                    \23\ 544 U.S. 528 (2005).
                    \24\ 544 U.S. at 542.
---------------------------------------------------------------------------

                    A third type of inverse condemnation, in addition to 
            regulatory and physical takings, is the exaction taking. A 
            two-part test has emerged. The first part debuted in Nollan 
            v. California Coastal Commission,\25\ and holds that in 
            order not to be a taking, an exaction condition on a 
            development permit approval (requiring, for example, that a 
            portion of a tract to be subdivided be dedicated for public 
            roads) must substantially advance a purpose related to the 
            underlying permit. There must, in short, be an ``essential 
            nexus'' between the two; otherwise the condition is ``an 
            out-and-out plan of extortion.'' \26\ The second part of the 
            exaction-takings test, announced in Dolan v. City of 
            Tigard,\27\ specifies that the condition, to not be a 
            taking, must be related to the proposed development not only 
            in nature, per Nollan, but also in degree. Government must 
            establish a ``rough proportionality'' between the burden 
            imposed by such conditions on the property owner, and the 
            impact of the property owner's proposed development on the 
            community -- at least in the context of adjudicated (rather 
            than legislated) conditions.
---------------------------------------------------------------------------

                    \25\ 483 U.S. 825 (1987).
                    \26\ 483 U.S. at 837. Justice Scalia, author of the 
            Court's opinion in Nollan, amplified his views in a 
            concurring and dissenting opinion in Pennell v. City of San 
            Jose, 485 U.S. 1 (1988), explaining that ``common zoning 
            regulations requiring subdividers to observe lot-size and 
            set-back restrictions, and to dedicate certain areas to 
            public streets, are in accord with [constitutional 
            requirements] because the proposed property use would 
            otherwise be the cause of'' the social evil (e.g., 
            congestion) that the regulation seeks to remedy. By 
            contrast, the Justice asserted, a rent control restriction 
            pegged to individual tenant hardship lacks such cause-and-
            effect relationship and is in reality an attempt to impose 
            on a few individuals public burdens that ``should be borne 
            by the public as a whole.'' 485 U.S. at 20, 22.
                    \27\ 512 U.S. 374 (1994)
---------------------------------------------------------------------------

                    Nollan and Dolan occasioned considerable debate over 
            the breadth of what became known as the ``heightened 
            scrutiny'' test. The stakes were plainly high in that the 
            test, where it applies, lessens the traditional judicial 
            deference to local police power and places the burden of 
            proof as to rough proportionality on the government. In City 
            of Monterey v. Del Monte Dunes at Monterey, Ltd.,\28\ the 
            Court unanimously confined the Dolan rough proportionality 
            test, and, by implication, the Nollan nexus test, to the 
            exaction context that gave rise to those cases. Still 
            unclear, however, is whether the Court meant to place 
            outside Dolan exactions of a purely monetary nature, in 
            contrast with the physically invasive dedication conditions 
            involved in Nollan and Dolan.\29\
---------------------------------------------------------------------------

                    \28\ 526 U.S. 687 (1999).
                    \29\ A strong hint that monetary exactions are 
            indeed outside Nollan/Dolan was provided in Lingle v. 
            Chevron U.S.A. Inc., 544 U.S. 528, 546 (2005), explaining 
            that these decisions were grounded on the doctrine of 
            unconstitutional conditions as applied to easement 
            conditions that would have been per se physical takings if 
            condemned directly.
---------------------------------------------------------------------------

                    The announcement following Penn Central of the above 
            per se rules in Loretto (physical occupations), Agins and 
            Lucas (total elimination of economic use), and Nollan/Dolan 
            (exaction conditions) prompted speculation that the Court 
            was replacing its ad hoc Penn Central approach with a more 
            categorical takings jurisprudence. Such speculation was put 
            to rest, however, by three decisions from 2001 to 2005 
            expressing distaste for categorical regulatory takings 
            analysis. These decisions endorse Penn Central as the 
            dominant mode of analysis for inverse condemnation claims, 
            confining the Court's per se rules to the ``relatively 
            narrow'' physical occupation and total wipeout 
            circumstances, and the ``special context'' of exactions.\30\
---------------------------------------------------------------------------

                    \30\ Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 
            538 (2005). The other two decisions are Palazzolo v. Rhode 
            Island, 533 U.S. 606 (2001), and Tahoe-Sierra Preservation 
            Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 
            302 (2002).
---------------------------------------------------------------------------
[P. 1490, add new paragraph to text at end of section:]

                    The requirement that state remedies be exhausted 
            before bringing a federal taking claim to federal court has 
            occasioned countless dismissals of takings claims brought 
            initially in federal court, while at the same time posing a 
            bar under doctrines of preclusion to filing first in state 
            court, per Williamson County, then relitigating in federal 
            court. The effect in many cases is to keep federal takings 
            claims out of federal court entirely -- a consequence the 
            plaintiffs' bar has long argued could not have been intended 
            by the Court. In San Remo Hotel, L.P. v. City and County of 
            San Francisco,\31\ the Court unanimously declined to create 
            an exception to the federal full faith and credit statute 
            \32\ that would allow relitigation of federal takings claims 
            in federal court. Nor, said the Court, may an England 
            reservation of the federal taking claim in state court \33\ 
            be used to require a federal court to review the reserved 
            claim, regardless of what issues the state court may have 
            decided. While concurring in the judgment, four justices 
            asserted that the state-exhaustion prong of Williamson 
            County ``may have been mistaken.'' \34\
---------------------------------------------------------------------------

                    \31\ 125 S. Ct. 2491 (2005).
                    \32\ 28 U.S.C. Sec.  1738. The statute commands that 
            ``judicial proceedings . . . shall have the same full faith 
            and credit in every court within the United States . . . as 
            they have by law or usage in the courts of such State . . . 
            .'' The statute has been held to encompass the doctrines of 
            claim and issue preclusion.
                    \33\ See England v. Louisiana Bd. of Medical 
            Examiners, 375 U.S. 411 (1964).
                    \34\ 125 S. Ct. at 2507 (Chief Justice Rehnquist, 
            and Justices O'Connor, Kennedy, and Thomas).
                             SIXTH AMENDMENT

                    RIGHT TO TRIAL BY IMPARTIAL JURY

Jury Trial
--The Attributes and Function of the Jury
[P. 1505, add to text at end of section:]


            Subsequently, the Court held that, just as failing to prove 
            materiality to the jury beyond a reasonable doubt can be 
            harmless error, so can failing to prove a sentencing factor 
            to the jury beyond a reasonable doubt. ``Assigning this 
            distinction constitutional significance cannot be reconciled 
            with our recognition in Apprendi that elements and 
            sentencing factors must be treated the same for Sixth 
            Amendment purposes.'' \1\
---------------------------------------------------------------------------


                    \1\ Washington v. Recuenco, 126 S. Ct. 2546, 2552 
            (2006). Apprendi is discussed in the next section.
---------------------------------------------------------------------------
--Criminal Proceedings to Which the Guarantee Applies
[P.1506, add to end of first full paragraph:]


            The Court has consistently, held, however, that a jury is 
            not required for purposes of determining whether a defendant 
            is insane or mentally retarded and consequently not eligible 
            for the death penalty.\2\
---------------------------------------------------------------------------


                    \2\ Ford v. Wainwright, 477 U.S. 399, 416-417 
            (1986); Atkins v. Virginia, 536 U.S. 304, 317 (2002); 
            Schriro v. Smith, 126 S. Ct. 7, 9 (2005). See Eighth 
            Amendment, ``Limitations on Capital Punishment: Diminished 
            Capacity,'' infra.
---------------------------------------------------------------------------
[P. 1506-1507, substitute for last two paragraphs of 
    section:]

                    Within the context of a criminal trial, what factual 
            issues are submitted to the jury has traditionally been 
            determined by whether the fact to be established is an 
            element of a crime or instead is a sentencing factor.\3\ 
            Under this approach, the right to a jury extends to the 
            finding of all facts establishing the elements of a crime, 
            and sentencing factors may be evaluated by a judge. 
            Evaluating the issue primarily under the Fourteenth 
            Amendment's Due Process Clause, the Court initially deferred 
            to Congress and the states on this issue, allowing them 
            broad leeway in determining which facts are elements of a 
            crime and which are sentencing factors.\4\
---------------------------------------------------------------------------

                    \3\ In Washington v. Recuenco, however, the Court 
            held that ``[f]ailure to submit a sentencing factor to the 
            jury, like failure to submit an element [of a crime] to the 
            jury, is not structural error,'' entitling the defendant to 
            automatic reversal, but can be harmless error. 126 S. Ct. 
            2546, 2553 (2006).
                    \4\ For instance, the Court held that whether a 
            defendant ``visibly possessed a gun'' during a crime may be 
            designated by a state as a sentencing factor, and determined 
            by a judge based on the preponderance of evidence. McMillan 
            v. Pennsylvania, 477 U.S. 79 (1986). After resolving the 
            issue under the Due Process Clause, the Court dismissed the 
            Sixth Amendment jury trial claim as ``merit[ing] little 
            discussion.'' Id. at 93. For more on the due process issue, 
            see the discussion in the main text under ``Proof, Burden of 
            Proof, and Presumptions.''
---------------------------------------------------------------------------

                    Breaking with this tradition, however, the Court in 
            Apprendi v. New Jersey held that a sentencing factor cannot 
            be used to increase the maximum penalty imposed for the 
            underlying crime.\5\ ``The relevant inquiry is one not of 
            form, but of effect.'' \6\ Apprendi had been convicted of a 
            crime punishable by imprisonment for no more than ten years, 
            but had been sentenced to 12 years based on a judge's 
            findings, by a preponderance of the evidence, that 
            enhancement grounds existed under the state's hate crimes 
            law. ``[A]ny fact that increases the penalty for a crime 
            beyond the prescribed statutory maximum,'' the Court 
            concluded, ``must be submitted to a jury, and proved beyond 
            a reasonable doubt.'' \7\ The one exception the Apprendi 
            Court recognized was for sentencing enhancements based on 
            recidivism.\8\ Subsequently, the Court refused to apply 
            Apprendi's principles to judicial factfinding that supports 
            imposition of mandatory minimum sentences.\9\
---------------------------------------------------------------------------

                    \5\ 530 U.S. 466, 490 (2000).
                    \6\ 530 U.S. at 494. ``[M]erely because the state 
            legislature placed its hate crime sentence enhancer within 
            the sentencing provisions of the criminal code does not mean 
            that the finding of a biased purpose to intimidate is not an 
            essential element of the offense.'' Id. at 495 (internal 
            quotation omitted).
                    \7\ 530 U.S. at 490.
                    \8\ 530 U.S. at 490. Enhancement of sentences for 
            repeat offenders is traditionally considered a part of 
            sentencing, and a judge may find the existence of previous 
            valid convictions even if the result is a significant 
            increase in the maximum sentence available. Almendarez-
            Torres v. United States, 523 U.S. 224 (1998) (deported alien 
            reentering the United States is subject to a maximum 
            sentence of two years, but upon proof of a felony record, is 
            subject to a maximum of twenty years). See also Parke v. 
            Raley, 506 U.S. 20 (1992) (where prosecutor has the burden 
            of establishing a prior conviction, a defendant can be 
            required to bear the burden of challenging the validity of 
            such a conviction).
                    \9\ Prior to its decision in Apprendi, the Court had 
            held that factors determinative of minimum sentences could 
            be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 
            (1986). Although the vitality of McMillan was put in doubt 
            by Apprendi, McMillan was subsequently reaffirmed in Harris 
            v. United States, 536 U.S. 545, 568-69 (2002). Five Justices 
            in Harris thought that factfinding required for imposition 
            of mandatory minimums fell within Apprendi's reasoning, but 
            one of the five, Justice Breyer, concurred in the judgment 
            on practical grounds despite his recognition that McMillan 
            was not ``easily'' distinguishable ``in terms of logic.'' 
            536 U.S. at 569. Justice Thomas' dissenting opinion, id. at 
            572, joined by Justices Stevens, Souter, and Ginsburg, 
            elaborated on the logical inconsistency, and suggested that 
            the Court's deference to Congress' choice to treat mandatory 
            minimums as sentencing factors made avoidance of Apprendi a 
            matter of ``clever statutory drafting.'' Id. at 579.
---------------------------------------------------------------------------

                    Apprendi's importance soon became evident as the 
            Court applied its reasoning in other situations. In Ring v. 
            Arizona,\10\ the Court, overruling precedent,\11\ applied 
            Apprendi to invalidate an Arizona law that authorized 
            imposition of the death penalty only if the judge made a 
            factual determination as to the existence of any of several 
            aggravating factors. Although Arizona required that the 
            judge's findings as to aggravating factors be made beyond a 
            reasonable doubt, and not merely by a preponderance of the 
            evidence, the Court ruled that those findings must be made 
            by a jury.\12\
---------------------------------------------------------------------------

                    \10\ 536 U.S. 584 (2002).
                    \11\ Walton v. Arizona, 497 U.S. 639 (1990). The 
            Court's decision in Ring also appears to overrule a number 
            of previous decisions on the same issue, such as Spaziano v. 
            Florida, 468 U.S. 447 (1984), and Hildwin v. Florida, 490 
            U.S. 638, 640-41 (1989) (per curiam), and undercuts the 
            reasoning of another. See Clemons v. Mississippi, 494 U.S. 
            738 (1990) (appellate court may reweigh aggravating and 
            mitigating factors and uphold imposition of death penalty 
            even though jury relied on an invalid aggravating factor).
                    \12\ ``Because Arizona's enumerated aggravating 
            factors operate as `the functional equivalent of an element 
            of a greater offense,' . . . the Sixth Amendment requires 
            that they be found by a jury.'' 536 U.S. at 609. The Court 
            rejected Arizona's request that it recognize an exception 
            for capital sentencing in order not to interfere with 
            elaborate sentencing procedures designed to comply with the 
            Eighth Amendment. Id. at 605-07.
---------------------------------------------------------------------------

                    In Blakely v. Washington,\13\ the Court sent 
            shockwaves through federal as well as state sentencing 
            systems when it applied Apprendi to invalidate a sentence 
            imposed under Washington State's sentencing statute. 
            Blakely, who pled guilty to an offense for which the 
            ``standard range'' under the state's sentencing law was 49 
            to 53 months, was sentenced to 90 months based on the 
            judge's determination -- not derived from facts admitted in 
            the guilty plea -- that the offense had been committed with 
            ``deliberate cruelty,'' a basis for an ``upward departure'' 
            under the statute. The 90-month sentence was thus within a 
            statutory maximum, but the Court made ``clear . . . that the 
            `statutory maximum' for Apprendi purposes is the maximum 
            sentence a judge may impose solely on the basis of the facts 
            reflected in the jury verdict or admitted by the defendant. 
            In other words, the relevant `statutory maximum' is not the 
            maximum sentence a judge may impose after finding additional 
            facts, but the maximum he may impose without any additional 
            findings.'' \14\
---------------------------------------------------------------------------

                    \13\ 542 U.S. 296 (2004).
                    \14\ 542 U.S. at 303-304 (italics in original; 
            citations omitted).
---------------------------------------------------------------------------

                    In United States v. Booker,\15\ the Court held that 
            the same principles limit sentences that courts may impose 
            under the federal Sentencing Guidelines. As the Court 
            restated the principle in Booker, ``[a]ny fact (other than a 
            prior conviction) which is necessary to support a sentence 
            exceeding the maximum authorized by the facts established by 
            a plea of guilty or a jury verdict must be admitted by the 
            defendant or proved to a jury beyond a reasonable doubt.'' 
            \16\ Attempts to distinguish Blakely were rejected. Because 
            the Sentencing Reform Act made application of the Guidelines 
            ``mandatory and binding on all judges,'' \17\ the Court 
            concluded that the fact that the Guidelines were developed 
            by the Sentencing Commission rather than by Congress ``lacks 
            constitutional significance.\18\ The mandatory nature of the 
            Guidelines was also important to the Court's formulation of 
            a remedy.\19\ Rather than engrafting a jury trial 
            requirement onto the Sentencing Reform Act, the Court 
            instead invalidated two of its provisions, one making 
            application of the Guidelines mandatory, and one requiring 
            de novo review for appeals of departures from the mandatory 
            Guidelines, and held that the remainder of the Act could 
            remain intact.\20\ As the Court explained, this remedy 
            ``makes the Guidelines effectively advisory. It requires a 
            sentencing court to consider Guidelines ranges, but it 
            permits the court to tailor the sentence in light of other 
            statutory concerns as well.'' \21\
---------------------------------------------------------------------------

                    \15\ 543 U.S. 220 (2005).
                    \16\ 543 U.S. at 244.
                    \17\ 543 U.S. at 233.
                    \18\ 543 U.S. at 237. Relying on Mistretta v. United 
            States, 488 U.S. 361 (1989), the Court also rejected a 
            separation-of-powers argument. Id. at 754-55.
                    \19\ There were two distinct opinions of the Court 
            in Booker. The first, authored by Justice Stevens and joined 
            by Justices Scalia, Souter, Thomas, and Ginsburg (the same 
            Justices who comprised the five-Justice Blakely majority), 
            applied Blakely to find a Sixth Amendment violation; the 
            other, authored by Justice Breyer, and joined by Chief 
            Justice Rehnquist and Justices O'Connor, Kennedy, and 
            Ginsburg (the Blakely dissenters joined by Justice 
            Ginsburg), set forth the remedy.
                    \20\ 543 U.S. at 259. The Court substituted a 
            ``reasonableness'' standard for the de novo review standard. 
            Id. at 262.
                    \21\ 543 U.S. at 245-246 (statutory citations 
            omitted).
---------------------------------------------------------------------------

                                    CONFRONTATION

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

                    In Ohio v. Roberts, 448 U.S. 56 (1980), a Court 
            majority adopted the reliability test for satisfying the 
            confrontation requirement through use of a statement by an 
            unavailable witness.\22\ Roberts was applied and narrowed 
            over the course of 24 years,\23\ and then overruled in 
            Crawford v. Washington.\24\ The Court in Crawford rejected 
            reliance on ``particularized guarantees of trustworthiness'' 
            as inconsistent with the requirements of the Confrontation 
            Clause. The Clause ``commands, not that evidence be 
            reliable, but that reliability be assessed in a particular 
            manner: by testing in the crucible of cross-examination.'' 
            \25\ Reliability is an ``amorphous'' concept that is 
            ``manipulable,'' and the Roberts test had been applied ``to 
            admit core testimonial statements that the Confrontation 
            Clause plainly meant to exclude.'' \26\ ``Where testimonial 
            statements are at issue, the only indicium of reliability 
            sufficient to satisfy constitutional demands is the one the 
            Constitution actually prescribes: confrontation.'' \27\
---------------------------------------------------------------------------

                    \22\ ``[O]nce a witness is shown to be unavailable . 
            . . , the Clause countenances only hearsay marked with such 
            trustworthiness that `there is no material departure from 
            the reason of the general rule.''' 448 U.S. at 65, quoting 
            Snyder v. Massachusetts, 291 U.S. 97, 107 (1934). The Court 
            indicated that reliability could be inferred without more if 
            the evidence falls within a firmly rooted hearsay exception.
                    \23\ Applying Roberts, the Court held that the fact 
            that defendant's and codefendant's confessions 
            ``interlocked'' on a number of points was not a sufficient 
            indicium of reliability, since the confessions diverged on 
            the critical issues of the respective roles of the two 
            defendants. Lee v. Illinois, 476 U.S. 530 (1986). Roberts 
            was narrowed in United States v. Inadi, 475 U.S. 387 (1986), 
            which held that the rule of ``necessity'' is confined to use 
            of testimony from a prior judicial proceeding, and is 
            inapplicable to co-conspirators' out-of-court statements. 
            See also White v. Illinois, 502 U.S. 346, 357 (1992) 
            (holding admissible ``evidence embraced within such firmly 
            rooted exceptions to the hearsay rule as those for 
            spontaneous declarations and statements made for medical 
            treatment''); and Idaho v. Wright, 497 U.S. 805, 822-23 
            (1990) (insufficient evidence of trustworthiness of 
            statements made by child sex crime victim to her 
            pediatrician; statements were admitted under a ``residual'' 
            hearsay exception rather than under a firmly rooted 
            exception).
                    \24\ 541 U.S. 36 (2004).
                    \25\ 541 U.S. at 60-61.
                    \26\ 541 U.S. at 63.
                    \27\ 541 U.S. at 68-69.
---------------------------------------------------------------------------

                    Crawford represents a decisive turning point for 
            Confrontation Clause analysis. The basic principles are now 
            clearly stated. ``Testimonial evidence'' may be admitted 
            against a criminal defendant only if the declarant is 
            available for cross-examination at trial, or, if the 
            declarant is unavailable even though the government has made 
            reasonable efforts to procure his presence, the defendant 
            has had a prior opportunity to cross-examine as to the 
            content of the statement.\28\ The Court left ``for another 
            day any effort to spell out a comprehensive definition of 
            `testimonial.''' The Court indicated, however, that the term 
            covers ``at a minimum'' prior testimony at a preliminary 
            hearing, at a former trial, or before a grand jury, and 
            statements made during police interrogation.\29\
---------------------------------------------------------------------------

                    \28\ The Roberts Court had stated a two-part test, 
            the first a ``necessity'' rule under which the prosecution 
            must produce or demonstrate unavailability of the declarant 
            despite reasonable, good-faith efforts to produce the 
            declarant at trial (448 U.S. at 65, 74), and the second part 
            turning on the reliability of a hearsay statement by an 
            unavailable witness. Crawford overruled Roberts only with 
            respect to reliability, and left the unavailability test 
            intact.
                    \29\ 541 U.S. at 68.
---------------------------------------------------------------------------

                    In Davis v. Washington,\30\ the Court began an 
            exploration of the parameters of Crawford by considering 
            when a police interrogation is ``testimonial'' for purposes 
            of the Confrontation Clause. The Davis case involved a 911 
            call in which a women described being assaulted by a former 
            boyfriend. A tape of that call was admitted as evidence of a 
            felony violation of a domestic no-contact order, despite the 
            fact that the women in question did not testify. While again 
            declining to establish all parameters of when a response to 
            police interrogation is testimonial, the Court did hold that 
            statements to the police are nontestimonial when made under 
            circumstances that ``objectively indicat[e] that the primary 
            purpose of the interrogation is to enable police assistance 
            to meet an ongoing emergency.'' \31\ Statements made after 
            such emergency has ended, however, would be treated as 
            testimonial, and could not be introduced.\32\
---------------------------------------------------------------------------

                    \30\ 126 S. Ct. 2266 (2006).
                    \31\ Id. at 2273.
                    \32\ Id. at 2277-78. Thus, where police responding 
            to a domestic violence report interrogated a woman in the 
            living room while her husband was being questioned in the 
            kitchen, there was no present threat to the woman, so such 
            information as was solicited was testimonial. Id. at 2278 
            (facts of Hammon v. Indiana, considered together with 
            Davis.)
---------------------------------------------------------------------------

                                ASSISTANCE OF COUNSEL

Development of an Absolute Right to Counsel at Trial
--Johnson v. Zerbst
[P. 1528, add to n.208:]
            A waiver must be knowing, voluntary, and intelligent, but 
            need not be based on a full and complete understanding of 
            all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004) 
            (holding that warnings by trial judge detailing risks of 
            waiving right to counsel are not constitutionally required 
            before accepting guilty plea from uncounseled defendant).
--Protection of the Right to Retained Counsel
[P. 1531, add new paragraph in text after n.229:]

                    Where the right to be assisted by counsel of one's 
            choice is wrongly denied, a Sixth Amendment violation occurs 
            regardless of whether the alternate counsel retained was 
            effective, or whether the denial caused prejudice to the 
            defendant.\33\ Further, because such a denial is not a 
            ``trial error'' (a constitutional error that occurs during 
            presentation of a case to the jury), but a ``structural 
            defect'' (a constitutional error that affects the framework 
            of the trial),\34\ the Court had held that the decision is 
            not subject to a ``harmless error'' analysis.\35\
---------------------------------------------------------------------------

                    \33\ United States v. Gonzalez-Lopez, 126 S. Ct. 
            2557, 2561-62 (2006).
                    \34\ Arizona v. Fulminante, 499 U.S. 279, 307-310 
            (1991).
                    \35\ Gonzalez-Lopez, 126 S. Ct. at 2557, 2563-64. 
            The Court noted that an important component of the finding 
            that denial of the right to choose one's own counsel was a 
            ``structural defect'' was the difficulty of assessing the 
            effect of such denial on a trial's outcome. Id. at 2564 n.4.
---------------------------------------------------------------------------
--Effective Assistance of Counsel
[P. 1535, add new footnote after ``virtually 
    unchallengeable,'' in sentence ending with n.252:]
            Strickland, 466 U.S. at 689-91. See also Yarborough v. 
            Gentry, 540 U.S. 1 (2003) (deference to attorney's choice of 
            tactics for closing argument).
[P. 1535, substitute for n.252:]
            Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts 
            could reasonably have concluded that failure to present 
            mitigating evidence was outweighed by ``severe'' aggravating 
            factors). But see Wiggins v. Smith, 539 U.S. 510 (2003) 
            (attorney's failure to pursue defendant's personal history 
            and present important mitigating evidence at capital 
            sentencing was objectively unreasonable); and Rompilla v. 
            Beard, 125 S. Ct. 2456 (2005) (attorneys' failure to consult 
            trial transcripts from a prior conviction that the attorneys 
            knew the prosecution would rely on in arguing for the death 
            penalty was inadequate).
[P. 1535, change period in text preceding n.252 to comma and 
    add to text after n.252:]


            and decisions selecting which issues to raise on appeal.\36\
---------------------------------------------------------------------------


                    \36\ There is no obligation to present on appeal all 
            nonfrivolous issues requested by the defendant. Jones v. 
            Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise 
            his professional judgment in determining which issues are 
            best raised on appeal).
---------------------------------------------------------------------------
[P. 1536, substitute for n.261:]
            Cronic, 466 U.S. at 659 n.26.
[P. 1536, change the period in text before n.261 to a comma, 
    and add after new comma:]
            and consequently most claims of inadequate representation 
            are to be measured by the Strickland standard.\37\
---------------------------------------------------------------------------
                    \37\ Strickland and Cronic were decided the same 
            day, and the Court's opinion in each cited the other. See 
            Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. 
            The Cronic presumption of prejudice may be appropriate when 
            counsel's ``overall performance'' is brought into question, 
            while Strickland is generally the appropriate test for 
            ``claims based on specified [counsel] errors.'' Cronic, 466 
            U.S. at 666 n.41. The narrow reach of Cronic has been 
            illustrated by subsequent decisions. Not constituting per se 
            ineffective assistance is a defense counsel's failure to 
            file a notice of appeal, or in some circumstances even to 
            consult with the defendant about an appeal. Roe v. Flores-
            Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 
            U.S. 430, 432 (1991) (per curiam). See also Florida v. 
            Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when 
            a defendant has failed to consent to a tenable strategy 
            counsel has adequately disclosed to and discussed with him). 
            A standard somewhat different from Cronic and Strickland 
            governs claims of attorney conflict of interest. See 
            discussion of Cuyler v. Sullivan, supra.
---------------------------------------------------------------------------
--Self-Representation
[P. 1536, add to n. 262 before sentence beginning with 
    ``Related'':]
            The Court, however, has not addressed what state aid, such 
            as access to a law library, might need to be made available 
            to a defendant representing himself. Kane v. Garcia Espitia, 
            126 S. Ct. 407 (2005).
Right to Assistance of Counsel in Nontrial Situations
--Custodial Interrogation
[P. 1539, add new footnote at end of paragraph continued 
    from page 1538:]
            The different issues in Fifth and Sixth Amendment cases were 
            recently summarized in Fellers v. United States, 540 U.S. 
            519 (2004), holding that absence of an interrogation is 
            irrelevant in a Massiah-based Sixth Amendment inquiry.
                            EIGHTH AMENDMENT

                      CRUEL AND UNUSUAL PUNISHMENTS

Capital Punishment
--Implementation of Procedural Requirements
[P. 1581, add to n.91:]
            Bell v. Cone, 543 U.S. 447 (2005) (presumption that state 
            supreme court applied a narrowing construction because it 
            had done so numerous times).
[P. 1583, add to n.99:]
            Although, under the Eighth and Fourteenth Amendments, the 
            state must bear the burden ``to prove the existence of 
            aggravating circumstances, a defendant's constitutional 
            rights are not violated by placing on him the burden of 
            proving mitigating circumstances sufficiently substantial to 
            call for leniency.'' Walton v. Arizona, 497 U.S. 639, 650 
            (1990) (plurality). A fortiori, a statute ``may direct 
            imposition of the death penalty when the State has proved 
            beyond a reasonable doubt that mitigators do not outweigh 
            aggravators, including where the aggravating circumstances 
            and mitigating circumstances are in equipoise.'' Kansas v. 
            Marsh, 126 S. Ct. 2516, 2524 (2006).
[P. 1586, add new paragraph after paragraph carried over 
    from page 1585:]

                    What is the effect on a death sentence if an 
            ``eligibility factor'' (a factor making the defendant 
            eligible for the death penalty) or an ``aggravating factor'' 
            (a factor, to be weighed against mitigating factors, in 
            determining whether a defendant who has been found eligible 
            for the death penalty should receive it) is found invalid? 
            In Brown v. Sanders, the Court announced ``the following 
            rule: An invalidated sentencing factor (whether an 
            eligibility factor or not) will render the sentence 
            unconstitutional by reason of its adding an improper element 
            to the aggravation scale in the weighing process unless one 
            of the other sentencing factors enables the sentencer to 
            give aggravating weight to the same facts and 
            circumstances.'' \1\
---------------------------------------------------------------------------

                    \1\ 126 S. Ct. 884, 892 (2006). In some states, 
            ``the only aggravating factors permitted to be considered by 
            the sentencer [are] the specified eligibility factors.'' Id. 
            at 890. These are known as weighing states; non-weighing 
            states, by contrast, are those that permit ``the sentencer 
            to consider aggravating factors different from, or in 
            addition to, the eligibility factors.'' Id. Prior to Brown 
            v. Sanders, in weighing states, the Court deemed ``the 
            sentencer's consideration of an invalid eligibility factor'' 
            to require ``reversal of the sentence (unless a state 
            appellate court determined the error was harmless or 
            reweighed the mitigating evidence against the valid 
            aggravating factors).'' Id.
---------------------------------------------------------------------------
[P. 1586, add new paragraph after first full paragraph:]

                    In Oregon v. Guzek, the Court could ``find nothing 
            in the Eighth or Fourteenth Amendments that provides a 
            capital defendant a right to introduce,'' at sentencing, new 
            evidence, available to him at the time of trial, ``that 
            shows he was not present at the scene of the crime.'' \2\ 
            Although ``the Eighth and Fourteenth Amendments require that 
            the sentencer . . . not be precluded from considering, as a 
            mitigating factor, any aspect of a defendant's character or 
            record and any of the circumstances of the offense that the 
            defendant proffers as a basis for a sentence less than 
            death,'' such evidence is a traditional concern of 
            sentencing because it tends to show ``how, not whether,'' 
            the defendant committed the crime.\3\ Alibi evidence, by 
            contrast, concerns ``whether the defendant committed the 
            basic crime'', and ``thereby attacks a previously determined 
            matter in a proceeding [i.e., sentencing] at which, in 
            principle, that matter is not at issue.'' \4\
---------------------------------------------------------------------------

                    \2\ 126 S. Ct. 1226, 1231, 1230 (2006).
                    \3\ 126 S. Ct. at 1231, 1232 (Court's emphasis 
            deleted in part).
                    \4\ 126 S. Ct. at 1232.
---------------------------------------------------------------------------
--Limitations on Capital Punishment: Diminished Capacity
[P. 1590, add to n.139:]
            See also Tennard v. Dretke, 542 U.S. 274 (2004) (evidence of 
            low intelligence should be admissible for mitigating 
            purposes without being screened on basis of severity of 
            disability).
[P. 1591, add new paragraph in text after n.143:]

                    In Atkins, the Court wrote, ``As was our approach in 
            Ford v. Wainwright with regard to insanity, `we leave to the 
            State[s] the task of developing appropriate ways to enforce 
            the constitutional restriction upon [their] execution of 
            sentences.''' \5\ In Schriro v. Smith, the Court again 
            quoted this language, holding that ``[t]he Ninth Circuit 
            erred in commanding the Arizona courts to conduct a jury 
            trial to resolve Smith's mental retardation claim.'' \6\ 
            States, the Court added, are entitled to ``adopt[ ] their 
            own measures for adjudicating claims of mental 
            retardation,'' though ``those measures might, in their 
            application, be subject to constitutional challenge.'' \7\
---------------------------------------------------------------------------

                    \5\ 536 U.S. at 317 (citation omitted), quoting Ford 
            v. Wainwright.
                    \6\ 126 S. Ct. 7, 9 (2005) (per curiam).
                    \7\ 126 S. Ct. at 9.
---------------------------------------------------------------------------
[P. 1591, substitute for first two sentences of first full 
    paragraph:]

                    The Court's conclusion that execution of juveniles 
            constitutes cruel and unusual punishment evolved in much the 
            same manner. Initially, a closely divided Court invalidated 
            one statutory scheme that permitted capital punishment to be 
            imposed for crimes committed before age 16, but upheld other 
            statutes authorizing capital punishment for crimes committed 
            by 16 and 17 year olds.

[P. 1591, substitute for rest of paragraph following n.148:]

                    Although the Court in Atkins v. Virginia contrasted 
            the national consensus said to have developed against 
            executing the mentally retarded with what it saw as a lack 
            of consensus regarding execution of juvenile offenders over 
            age 15,\8\ less than three years later the Court held that 
            such a consensus had developed. The Court's decision in 
            Roper v. Simmons \9\ drew parallels with Atkins. A consensus 
            had developed, the Court held, against the execution of 
            juveniles who were age 16 or 17 when they committed their 
            crimes. Since Stanford, five states had eliminated authority 
            for executing juveniles, and no states that formerly 
            prohibited it had reinstated the authority. In all, 30 
            states prohibited execution of juveniles: 12 that prohibited 
            the death penalty altogether, and 18 that excluded juveniles 
            from its reach. This meant that 20 states did not prohibit 
            execution of juveniles, but the Court noted that only five 
            of these states had actually executed juveniles since 
            Stanford, and only three had done so in the 10 years 
            immediately preceding Simmons. Although the pace of change 
            was slower than had been the case with execution of the 
            mentally retarded, the consistent direction of change toward 
            abolition was deemed more important.\10\
---------------------------------------------------------------------------

                    \8\ 536 U.S. at 314, n.18.
                    \9\ 543 U.S. 551 (2005). The case was decided by 5-4 
            vote. Justice Kennedy wrote the Court's opinion, and was 
            joined by Justices Stevens, Souter, Ginsburg, and Breyer. 
            Justice O'Connor, who had joined the Court's 6-3 majority in 
            Atkins, wrote a dissenting opinion, as did Justice Scalia, 
            who was joined by Chief Justice Rehnquist and Justice 
            Thomas.
                    \10\ Dissenting in Simmons, Justice O'Connor 
            disputed the consistency of the trend, pointing out that 
            since Stanford two states had passed laws reaffirming the 
            permissibility of executing 16- and 17-year-old-offenders. 
            543 U.S. at 596.
---------------------------------------------------------------------------

                    As in Atkins, the Simmons Court relied on its ``own 
            independent judgment'' in addition to its finding of 
            consensus among the states.\11\ Three general differences 
            between juveniles and adults make juveniles less morally 
            culpable for their actions. Because juveniles lack maturity 
            and have an underdeveloped sense of responsibility, they 
            often engage in ``impetuous and ill-considered actions and 
            decisions.'' Juveniles are also more susceptible than adults 
            to ``negative influences'' and peer pressure. Finally, the 
            character of juveniles is not as well formed, and their 
            personality traits are ``more transitory, less fixed.'' \12\ 
            For these reasons, irresponsible conduct by juveniles is 
            ``not as morally reprehensible,'' they have ``a greater 
            claim than adults to be forgiven,'' and ``a greater 
            possibility exists that a minor's character deficiencies 
            will be reformed.\13\ Because of the diminished culpability 
            of juveniles, the penological objectives of retribution and 
            deterrence do not provide adequate justification for 
            imposition of the death penalty. The majority preferred a 
            categorical rule over individualized assessment of each 
            offender's maturity, explaining that ``[t]he differences 
            between juvenile and adult offenders are too marked and well 
            understood to risk allowing a youthful person to receive the 
            death penalty despite insufficient culpability.'' \14\
---------------------------------------------------------------------------

                    \11\ 543 U.S. at 564. The Stanford Court had been 
            split over the appropriate scope of inquiry in cruel and 
            unusual punishment cases. Justice Scalia's plurality would 
            have focused almost exclusively on an assessment of what the 
            state legislatures and Congress have done in setting an age 
            limit for application of capital punishment. 492 U.S. at 377 
            (``A revised national consensus so broad, so clear and so 
            enduring as to justify a permanent prohibition upon all 
            units of democratic government must appear in the operative 
            acts (laws and the application of laws) that the people have 
            approved.''). The Stanford dissenters would have broadened 
            this inquiry with a proportionality review that considers 
            the defendant's culpability as one aspect of the gravity of 
            the offense, that considers age as one indicator of 
            culpability, and that looks to other statutory age 
            classifications to arrive at a conclusion about the level of 
            maturity and responsibility that society expects of 
            juveniles. 492 U.S. at 394-96. The Atkins majority adopted 
            the approach of the Stanford dissenters, conducting a 
            proportionality review that brought their own ``evaluation'' 
            into play alongwith their analysis of consensus on the issue 
            of executing the mentally retarded.
                    \12\ 543 U.S. at 569, 570.
                    \13\ 543 U.S. at 570.
                    \14\w543 U.S. at 572-573. Strongly disagreeing, 
            Justice O'Connor wrote that ``an especially depraved 
            juvenile offender may . . . be just as culpable as many 
            adult offenders considered bad enough to deserve the death 
            penalty. . . . [E]specially for 17-year-olds . . . the 
            relevant differences between `adults' and `juveniles' appear 
            to be a matter of degree, rather than of kind.'' Id. at 600.
---------------------------------------------------------------------------

                    The Simmons Court found confirmation for its holding 
            in ``the overwhelming weight of international opinion 
            against the juvenile death penalty.'' \15\ Although ``not 
            controlling,'' the rejection of the juvenile death penalty 
            by other nations and by international authorities was 
            ``instructive,'' as it had been in earlier cases, for Eighth 
            Amendment interpretation.\16\
---------------------------------------------------------------------------

                    \15\ 543 U.S. at 578 (noting ``the stark reality 
            that the United States is the only country in the world that 
            continues to give official sanction to the juvenile death 
            penalty,'' id. at 575).
                    \16\ Citing as precedent Trop v. Dulles, 356 U.S. 
            86, 102-03 (1958) (plurality opinion); Atkins, 536 U.S. at 
            317, n.21; Enmund v. Florida, 458 U.S. 782, 796-97, n.22 
            (1982); Thompson v. Oklahoma, 487 U.S. 815, 830-31 & n.31 
            (1988) (plurality opinion); and Coker v. Georgia, 433 U.S. 
            584, 596 n.10 (1977) (plurality opinion).
---------------------------------------------------------------------------
--Limitations on Habeas Corpus Review of Capital Sentences
[P. 1594, delete everything after citation in n.161, and add 
    new footnote at end of second sentence of paragraph in 
    text:]
            The ``new rule'' limitation was suggested in a plurality 
            opinion in Teague. A Court majority in Penry and later cases 
            has adopted it. ``Teague by its terms applies only to 
            procedural rules.'' Bousley v. United States, 523 U.S. 614, 
            620 (1998). ``New substantive rules generally apply 
            retroactively.'' This is so because new substantive rules 
            ``necessarily carry a significant risk that a defendant 
            stands convicted of an act that the law does not make 
            criminal or faces a punishment that the law cannot impose on 
            him.'' Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004) 
            (citation and internal quotation omitted) (decision in Ring 
            v. Arizona, holding that jury not judge must decide 
            existence of aggravating factors on which imposition of 
            death sentence may be based, was a procedural, not a 
            substantive rule).
[P. 1594, add to n.162 following initial citation:]
            The first exception parallels the standard for substantive 
            rules. The second exception, for ``watershed rules of 
            criminal procedure implicating the fundamental fairness and 
            accuracy of the criminal proceeding,'' Saffle v. Parks, 494 
            U.S. 484, 495 (1990), was at issue in Sawyer v. Smith . . . 
            .
[P. 1595, add to n.167:]
            Accord, House v. Bell, 126 S. Ct. 2064, 2086-2087 (2006) 
            (defendant failed to meet Herrera standard but nevertheless 
            put forward enough evidence of innocence to meet the less 
            onerous standard of Schlup v. Delo, 513 U.S. 298 (1995), 
            which ``held that prisoners asserting innocence as a gateway 
            to [habeas relief for claims forfeited under state law] must 
            establish that, in light of new evidence, `it is more likely 
            than not that no reasonable juror would have found 
            petitioner guilty beyond a reasonable doubt.''' Id. at 2076-
            2077, quoting Schlup v. Delo, 513 U.S. at 327.) The Court 
            here distinguished ``freestanding'' claims under Herrera 
            from ``gateway'' claims under Schlup, the difference 
            apparently being that success on a freestanding claim 
            results in the overturning of a conviction, whereas success 
            on a gateway claim results in a remand to the trial court to 
            hear the claim. See also Article III, ``Habeas Corpus: Scope 
            of the Writ.''
Proportionality
[P. 1601, add new paragraph at end of section:]

                    Twelve years after Harmelin the Court still could 
            not reach a consensus on rationale for rejecting a 
            proportionality challenge to California's ``three-strikes'' 
            law, as applied to sentence a repeat felon to 25 years to 
            life imprisonment for stealing three golf clubs valued at 
            $399 apiece.\17\ A plurality of three Justices (O'Connor, 
            Kennedy, and Chief Justice Rehnquist) determined that the 
            sentence was ``justified by the State's public safety 
            interest in incapacitating and deterring recidivist felons, 
            and amply supported by [the petitioner's] long, serious 
            criminal record,'' and hence was not the ``rare case'' of 
            ``gross disproportional[ity].'' \18\ The other two Justices 
            voting in the majority were Justice Scalia, who objected 
            that the proportionality principle cannot be intelligently 
            applied when the penological goal is incapacitation rather 
            than retribution,\19\ and Justice Thomas, who asserted that 
            the Cruel and Unusual Punishments Clause ``contains no 
            proportionality principle.'' \20\ Not surprisingly, the 
            Court also rejected a habeas corpus challenge to 
            California's ``three-strikes'' law for failure to clear the 
            statutory hurdle of establishing that the sentencing was 
            contrary to, or an unreasonable application of, ``clearly 
            established federal law.'' \21\ Justice O'Connor's opinion 
            for a five-Justice majority explained, in understatement, 
            that the Court's precedents in the area ``have not been a 
            model of clarity . . . that have established a clear or 
            consistent path for courts to follow.'' \22\
---------------------------------------------------------------------------

                    \17\ Ewing v. California, 538 U.S. 11 (2003).
                    \18\ 538 U.S. at 29-30.
                    \19\ 538 U.S. at 31.
                    \20\ 538 U.S. at 32. The dissenting Justices thought 
            that the sentence was invalid under the Harmelin test used 
            by the plurality, although they suggested that the Solem v. 
            Helm test would have been more appropriate for a recidivism 
            case. See 538 U.S. at 32, n.1 (opinion of Justice Stevens).
                    \21\ Lockyer v. Andrade, 538 U.S. 63 (2003). The 
            three-strikes law had been used to impose two consecutive 
            25-year-to-life sentences on a 37-year-old convicted of two 
            petty thefts with a prior conviction.
                    \22\ 538 U.S. at 72.
---------------------------------------------------------------------------
Prisons and Punishment
[P. 1601, add to n.200:]
            See also Overton v. Bazzetta, 539 U.S. 126 (2003) (rejecting 
            a challenge to a two-year withdrawal of visitation as 
            punishment for prisoners who commit multiple substance abuse 
            violations, characterizing the practice as ``not a dramatic 
            departure from accepted standards for conditions of 
            confinement,'' but indicating that a permanent ban ``would 
            present different considerations'').
                           ELEVENTH AMENDMENT

                        STATE SOVEREIGN IMMUNITY

Suits Against States
[P. 1636, add to text at end of section:]
            In some of these cases, the state's immunity is either 
            waived or abrogated by Congress. In other cases, the 11th 
            Amendment does not apply because the procedural posture is 
            such that the Court does not view the suit as being against 
            a state. As discussed below, this latter doctrine is most 
            often seen in suits to enjoin state officials. However, it 
            has also been invoked in bankruptcy and admiralty cases, 
            where the res, or property in dispute, is in fact the legal 
            target of a dispute.\1\
---------------------------------------------------------------------------
                    \1\ See Tennessee Student Assistance Corp. v. Hood, 
            541 U.S. 440, 446-48 (2004) (exercise of bankruptcy court's 
            in rem jurisdiction over a debtor's estate to discharge a 
            debt owed to a state does not infringe the state's 
            sovereignty); California v. Deep Sea Research, Inc., 523 
            U.S. 491, 507-08 (1998) (despite state claims to title of a 
            ship-wrecked vessel, the Eleventh Amendment does not bar 
            federal court in rem admiralty jurisdiction where the res is 
            not in the possession of the sovereign)
---------------------------------------------------------------------------

                    The application of this last exception to the 
            bankruptcy area has become less relevant, because even when 
            a bankruptcy case is not focused on a particular res the 
            Court has held that a state's sovereign immunity is not 
            infringed by being subject to an order of a bankruptcy 
            court. ``The history of the Bankruptcy Clause, the reasons 
            it was inserted in the Constitution, and the legislation 
            both proposed and enacted under its auspices immediately 
            following ratification of the Constitution demonstrate that 
            it was intended not just as a grant of legislative authority 
            to Congress, but also to authorize limited subordination of 
            state sovereign immunity in the bankruptcy arena.'' \2\ 
            Thus, where a federal law authorized a bankruptcy trustee to 
            recover ``preferential transfers'' made to state educational 
            institutions,\3\ the court held that the sovereign immunity 
            of the state was not infringed despite the fact that the 
            issue was ``ancillary'' to a bankruptcy court's in rem 
            jurisdiction.\4\
---------------------------------------------------------------------------

                    \2\ Central Virginia Community College v. Katz, 126 
            S. Ct. 990, 996 (2006).
                    \3\ A ``preferential transfer'' was defined as the 
            transfer of a property interest from an insolvent debtor to 
            a creditor, which occurred on or within 90 days before the 
            filing of a bankruptcy petition, and which exceeds what the 
            creditor would have been entitled to receive under such 
            bankruptcy filing. 11 U.S.C. Sec.  547(b).
                    \4\ 126 S. Ct. at 1001-02.
---------------------------------------------------------------------------
[P. 1639, add to n.80 after citation to Mt. Healthy City Bd. 
    of Education v. Doyle:]
            Northern Insurance Company of New York v. Chatham County, 
            126 S. Ct. 1689, 1693 (2006).
--Congressional Withdrawal of Immunity
[P. 1639, add to n.85:]
            See also Frew v. Hawkins, 540 U.S. 431 (2004) (upholding 
            enforcement of consent decree).
Suits Against State Officials
[P. 1648, add new footnote at end of first paragraph:]
            In Frew v. Hawkins, 540 U.S. 431 (2004), Texas, which was 
            under a consent decree regarding its state Medicaid program, 
            attempted to extend the reasoning of Pennhurst, arguing that 
            unless an actual violation of federal law had been found by 
            a court, such court would be without jurisdiction to enforce 
            such decree. The Court, in a unanimous opinion, declined to 
            so extend the 11th Amendment, noting, among other things, 
            that the principles of federalism were served by giving 
            state officials the latitude and discretion to enter into 
            enforceable consent decrees. Id. at 442.
                          FOURTEENTH AMENDMENT

Section 1. Rights Guaranteed

                           DUE PROCESS OF LAW

Definitions
--``Liberty''
[P. 1682, add to n.57:]
            But see Chavez v. Martinez, 538 U.S. 760 (2003) (case 
            remanded to federal circuit court to determine whether 
            coercive questioning of severely injured suspect gave rise 
            to a compensable violation of due process).
Fundamental Rights (Noneconomic Substantive Due Process)
--Development of the Right of Privacy
[P. 1767, Substitute for portion of paragraph following 
    n.552:]

                    However, in Bowers v. Hardwick,\1\ the Court 
            majority rejected a challenge to a Georgia sodomy law 
            despite the fact that it prohibited types of intimate 
            activities engaged in by married as well as unmarried 
            couples.\2\ Then, in Lawrence v. Texas,\3\ the Supreme Court 
            reversed itself, holding that a Texas statute making it a 
            crime for two persons of the same sex to engage in intimate 
            sexual conduct violates the Due Process Clause.
---------------------------------------------------------------------------

                    \1\ 478 U.S. 186 (1986).
                    \2\ The Court upheld the statute only as applied to 
            the plaintiff, who was a homosexual, 478 U.S. at 188 (1986), 
            and thus rejected an argument that there is a ``fundamental 
            right of homosexuals to engage in acts of consensual 
            sodomy.'' Id. at 192-93. In a dissent, Justice Blackmun 
            indicated that he would have evaluated the statute as 
            applied to both homosexual and heterosexual conduct, and 
            thus would have resolved the broader issue not addressed by 
            the Court -- whether there is a general right to privacy and 
            autonomy in matters of sexual intimacy. Id. at 199-203 
            (Justice Blackmun dissenting, joined by Justices Brennan, 
            Marshall and Stevens).
                    \3\ 539 U.S. 558 (2003) (overruling Bowers).
---------------------------------------------------------------------------
--Abortion
[P. 1778, add new footnote at end of last paragraph in the 
    section:]
            As to the question of whether an abortion statute that is 
            unconstitutional in some instances should be struck down in 
            application only or in its entirety, see Ayotte v. Planned 
            Parenthood of Northern New England, 126 S. Ct. 961 (2006) 
            (challenge to parental notification restrictions based on 
            lack of emergency health exception remanded to determine 
            legislative intent regarding severability of those 
            applications).
--Privacy After Roe: Informational Privacy, Privacy of the 
    Home or Personal Autonomy?
[P. 1784, substitute for final sentence of paragraph carried 
    over from p.1783:]
            Although Bowers has since been overruled by Lawrence v. 
            Texas \4\ based on precepts of personal autonomy, the latter 
            case did not appear to signal the resurrection of the 
            doctrine of protecting activities occurring in private 
            places.
---------------------------------------------------------------------------
                    \4\ 539 U.S. 558 (2003).
---------------------------------------------------------------------------
[P. 1784, substitute for second full paragraph and all 
    remaining paragraphs within the topic:]

                    Despite the limiting language of Roe, the concept of 
            privacy still retains sufficient strength to occasion major 
            constitutional decisions. For instance, in the 1977 case of 
            Carey v. Population Services International,\5\ recognition 
            of the ``constitutional protection of individual autonomy in 
            matters of childbearing'' led the Court to invalidate a 
            state statute that banned the distribution of contraceptives 
            to adults except by licensed pharmacists and that forbade 
            any person to sell or distribute contraceptives to a minor 
            under 16.\6\ The Court significantly extended the Griswold-
            Baird line of cases so as to make the ``decision whether or 
            not to beget or bear a child'' a ``constitutionally 
            protected right of privacy'' interest that government may 
            not burden without justifying the limitation by a compelling 
            state interest and by a regulation narrowly drawn to protect 
            only that interest or interests.
---------------------------------------------------------------------------

                    \5\ 431 U.S. 678 (1977).
                    \6\ 431 U.S. at 684-91. The opinion of the Court on 
            the general principles drew the support of Justices Brennan, 
            Stewart, Marshall, Blackmun, and Stevens. Justice White 
            concurred in the result in the voiding of the ban on access 
            to adults while not expressing an opinion on the Court's 
            general principles. Id. at 702. Justice Powell agreed the 
            ban on access to adults was void but concurred in an opinion 
            significantly more restrained than the opinion of the Court. 
            Id. at 703. Chief Justice Burger, id. at 702, and Justice 
            Rehnquist, id. at 717, dissented.
                    The limitation of the number of outlets to adults 
            ``imposes a significant burden on the right of the 
            individuals to use contraceptives if they choose to do so'' 
            and was unjustified by any interest put forward by the 
            state. The prohibition on sale to minors was judged not by 
            the compelling state interest test, but instead by inquiring 
            whether the restrictions serve ``any significant state 
            interest . . . that is not present in the case of an 
            adult.'' This test is ``apparently less rigorous'' than the 
            test used with adults, a distinction justified by the 
            greater governmental latitude in regulating the conduct of 
            children and the lesser capability of children in making 
            important decisions. The attempted justification for the ban 
            was rejected. Doubting the permissibility of a ban on access 
            to contraceptives to deter minors' sexual activity, the 
            Court even more doubted, because the state presented no 
            evidence, that limiting access would deter minors from 
            engaging in sexual activity. Id. at 691-99. This portion of 
            the opinion was supported by only Justices Brennan, Stewart, 
            Marshall, and Blackmun. Justices White, Powell, and Stevens 
            concurred in the result, id. at 702, 703, 712, each on more 
            narrow grounds than the plurality. Again, Chief Justice 
            Burger and Justice Rehnquist dissented. Id. at 702, 717.
---------------------------------------------------------------------------

                    For a time, the limits of the privacy doctrine were 
            contained by the 1986 case of Bowers v. Hardwick,\7\ where 
            the Court by a 5-4 vote roundly rejected the suggestion that 
            the privacy cases protecting ``family, marriage, or 
            procreation'' extend protection to private consensual 
            homosexual sodomy,\8\ and also rejected the more 
            comprehensive claim that the privacy cases ``stand for the 
            proposition that any kind of private sexual conduct between 
            consenting adults is constitutionally insulated from state 
            proscription.'' \9\ Heavy reliance was placed on the fact 
            that prohibitions on sodomy have ``ancient roots,'' and on 
            the fact that half of the states still prohibited the 
            practice. \10\ The privacy of the home does not protect all 
            behavior from state regulation, and the Court was 
            ``unwilling to start down [the] road'' of immunizing 
            ``voluntary sexual conduct between consenting adults.'' \11\ 
            Interestingly, Justice Blackmun, in dissent, was most 
            critical of the Court's framing of the issue as one of 
            homosexual sodomy, as the sodomy statute at issue was not so 
            limited.\12\
---------------------------------------------------------------------------

                    \7\ 478 U.S. 186 (1986). The Court's opinion was 
            written by Justice White, and joined by Chief Justice Burger 
            and by Justices Powell, Rehnquist, and O'Connor. The Chief 
            Justice and Justice Powell added brief concurring opinions. 
            Justice Blackmun dissented, joined by Justices Brennan, 
            Marshall, and Stevens, and Justice Stevens, joined by 
            Justices Brennan and Marshall, added a separate dissenting 
            opinion.
                    \8\ ``[N]one of the rights announced in those cases 
            bears any resemblance to the claimed constitutional right of 
            homosexuals to engage in acts of sodomy.'' 478 U.S. at 190-
            91.
                    \9\ Justice White's opinion for the Court in 
            Hardwick sounded the same opposition to ``announcing rights 
            not readily identifiable in the Constitution's text'' that 
            underlay his dissents in the abortion cases. 478 U.S. at 
            191. The Court concluded that there was no ``fundamental 
            right [of] homosexuals to engage in acts of consensual 
            sodomy'' because homosexual sodomy is neither a fundamental 
            liberty ``implicit in the concept of ordered liberty'' nor 
            is it ``deeply rooted in this Nation's history and 
            tradition.'' 478 U.S. at 191-92.
                    \10\ 478 U.S. at 191-92. Chief Justice Burger's 
            brief concurring opinion amplified this theme, concluding 
            that constitutional protection for ``the act of homosexual 
            sodomy . . . would . . . cast aside millennia of moral 
            teaching.'' Id. at 197. Justice Powell cautioned that Eighth 
            Amendment proportionality principles might limit the 
            severity with which states can punish the practices 
            (Hardwick had been charged but not prosecuted, and had 
            initiated the action to have the statute under which he had 
            been charged declared unconstitutional). Id.
                    \11\ The Court voiced concern that ``it would be 
            difficult . . . to limit the claimed right to homosexual 
            conduct while leaving exposed to prosecution adultery, 
            incest, and other sexual crimes even though they are 
            committed in the home.'' 478 U.S. at 195- 96. Dissenting 
            Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217-
            18) suggested that these crimes are readily distinguishable.
                    \12\ 478 U.S. at 199. The Georgia statute at issue, 
            like most sodomy statutes, prohibits the practices 
            regardless of the sex or marital status of the participants. 
            See id. at 188 n.1. Justice Stevens too focused on this 
            aspect, suggesting that the earlier privacy cases clearly 
            bar a state from prohibiting sodomous acts by married 
            couples, and that Georgia had not justified selective 
            application to homosexuals. Id. at 219. Justice Blackmun 
            would instead have addressed the issue more broadly as to 
            whether the law violated an individual's privacy right ``to 
            be let alone.'' The privacy cases are not limited to 
            protection of the family and the right to procreation, he 
            asserted, but instead stand for the broader principle of 
            individual autonomy and choice in matters of sexual 
            intimacy. 478 U.S. at 204-06. This position was rejected by 
            the majority, however, which held that the thrust of the 
            fundamental right of privacy in this area is one 
            functionally related to ``family, marriage, motherhood, 
            procreation, and child rearing.'' 478 U.S. at 190. See also 
            Paul v. Davis, 424 U.S. 693, 713 (1976).
---------------------------------------------------------------------------

                    Yet, Lawrence v. Texas,\13\ by overruling Bowers, 
            brought the outer limits of noneconomic substantive due 
            process into question by once again using the language of 
            ``privacy'' rights. Citing the line of personal autonomy 
            cases starting with Griswold, the Court found that sodomy 
            laws directed at homosexuals ``seek to control a personal 
            relationship that, whether or not entitled to formal 
            recognition in the law, is within the liberty of persons to 
            choose without being punished as criminals. . . . When 
            sexuality finds overt expression in intimate conduct with 
            another person, the conduct can be but one element in a 
            personal bond that is more enduring. The liberty protected 
            by the Constitution allows homosexual persons the right to 
            make this choice.'' \14\
---------------------------------------------------------------------------

                    \13\ 539 U.S. 558 (2003).
                    \14\ Id. at 567.
---------------------------------------------------------------------------

                    Although it quarreled with the Court's finding in 
            Bowers v. Hardwick that the proscription against homosexual 
            behavior had ``ancient roots,'' the Lawrence Court did not 
            attempt to establish that such behavior was in fact 
            historically condoned. This raises the question as to what 
            limiting principles are available in evaluating future 
            arguments based on personal autonomy. While the Court does 
            seem to recognize that a State may have an interest in 
            regulating personal relationships where there is a threat of 
            ``injury to a person or abuse of an institution the law 
            protects,'' \15\ it also seems to reject reliance on 
            historical notions of morality as guides to what personal 
            relationships are to be protected.\16\ Thus, the parameters 
            for regulation of sexual conduct remain unclear.
---------------------------------------------------------------------------

                    \15\ Id.
                    \16\ The Court noted with approval Justice Stevens' 
            dissenting opinion in Bowers v. Hardwick stating ``that a 
            governing majority in a State has traditionally viewed a 
            particular practice as immoral is not a sufficient reason 
            for upholding a law prohibiting the practice; neither 
            history nor tradition could save a law prohibiting 
            miscegenation from constitutional attack.'' Id. at 577-78, 
            citing Bowers v. Hardwick, 478 U.S. at 216.
---------------------------------------------------------------------------

                    For instance, the extent to which the government may 
            regulate the sexual activities of minors has not been 
            established.\17\ Analysis of this question is hampered, 
            however, because the Court has still not explained what 
            about the particular facets of human relationships -- 
            marriage, family, procreation -- gives rise to a protected 
            liberty, and how indeed these factors vary significantly 
            enough from other human relationships. The Court's 
            observation in Roe v. Wade ``that only personal rights that 
            can be deemed `fundamental' are included in this guarantee 
            of personal privacy,'' occasioning justification by a 
            ``compelling'' interest,\18\ little elucidates the 
            answers.\19\
---------------------------------------------------------------------------

                    \17\ The Court reserved this question in Carey, 431 
            U.S. at 694 n.17 (plurality opinion), although Justices 
            White, Powell, and Stevens in concurrence seemed to see no 
            barrier to state prohibition of sexual relations by minors. 
            Id. at 702, 703, 712.
                    \18\ Roe v. Wade, 410 U.S. 113, 152 (1973). The 
            language is quoted in full in Carey, 431 U.S. at 684-85.
                    \19\ In the same Term the Court significantly 
            restricted its equal protection doctrine of ``fundamental'' 
            interests - compelling interest justification by holding 
            that the ``key'' to discovering whether an interest or a 
            relationship is a ``fundamental'' one is not its social 
            significance, but is whether it is ``explicitly or 
            implicitly guaranteed by the Constitution.'' San Antonio 
            School Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973). That 
            this limitation has not been honored with respect to equal 
            protection analysis or due process analysis can be easily 
            discerned. Compare Zablocki v. Redhail, 434 U.S. 374 (1978) 
            (opinion of Court), with id. at 391 (Justice Stewart 
            concurring), and id. at 396 (Justice Powell concurring).
---------------------------------------------------------------------------

                    Despite the Court's decision in Lawrence, there is a 
            question as to whether the development of noneconomic 
            substantive due process will proceed under an expansive 
            right of ``privacy'' or under the more limited ``liberty'' 
            set out in Roe. There still appears to be a tendency to 
            designate a right or interest as a right of privacy when the 
            Court has already concluded that it is valid to extend an 
            existing precedent of the privacy line of cases. Because 
            much of this protection is also now accepted as a 
            ``liberty'' protected under the due process clauses, 
            however, the analytical significance of denominating the 
            particular right or interest as an element of privacy seems 
            open to question.

                            PROCEDURAL DUE PROCESS: CIVIL

Generally
--The Requirements of Due Process
[P. 1796, add to text after n.697]
            This may include an obligation, upon learning that an 
            attempt at notice has failed, to take ``reasonable followup 
            measures'' that may be available.\20\
---------------------------------------------------------------------------
                    \20\ Jones v. Flowers, 126 S. Ct. 1708, 1719 (2006) 
            (state's certified letter, intended to notify a property 
            owner that his property would be sold unless he satisfied a 
            tax delinquency, was returned by the post office marked 
            ``unclaimed''; the state should have taken additional 
            reasonable steps to notify the property owner, as it would 
            have been practicable for it to have done so.)
---------------------------------------------------------------------------
The Procedure Which is Due Process
--The Property Interest
[P. 1804, add new paragraph to text after paragraph ending 
    with n.647:]

                    The further one gets from traditional precepts of 
            property, the more difficult it is to establish a due 
            process claim based on entitlements. In Town of Castle Rock 
            v. Gonzales,\21\ the Court considered whether police 
            officers violated a constitutionally protected property 
            interest by failing to enforce a restraining order obtained 
            by an estranged wife against her husband, despite having 
            probable cause to believe the order had been violated. While 
            noting statutory language that required that officers either 
            use ``every reasonable means to enforce [the] restraining 
            order'' or ``seek a warrant for the arrest of the restrained 
            person,'' the Court resisted equating this language with the 
            creation of an enforceable right, noting a long-standing 
            tradition of police discretion coexisting with apparently 
            mandatory arrest statutes.\22\ Finally, the Court even 
            questioned whether finding that the statute contained 
            mandatory language would have created a property right, as 
            the wife, with no criminal enforcement authority herself, 
            was merely an indirect recipient of the benefits of the 
            governmental enforcement scheme.\23\
---------------------------------------------------------------------------

                    \21\ 125 S. Ct. 2796 (2005).
                    \22\ 125 S. Ct. at 2805. The Court also noted that 
            the law did not specify the precise means of enforcement 
            required; nor did it guarantee that, if a warrant were 
            sought, it would be issued. Such indeterminancy is not the 
            ``hallmark of a duty that is mandatory.'' Id. at 2807-08.
                    \23\ 125 S. Ct. at 2809-10.
---------------------------------------------------------------------------
--The Liberty Interest
[P. 1807, add new footnote to end of second paragraph]
            In Connecticut Department of Public Safety v. Doe, 538 U.S. 
            1, 6-7 (2003), holding that the state's posting on the 
            Internet of accurate information regarding convicted sex 
            offenders did not violate their due process rights, the 
            Court stated that Paul v. Davis ``held that mere injury to 
            reputation, even if defamatory, does not constitute the 
            deprivation of a liberty interest.''
[P. 1809, add to n.770:]
            Wilkinson v. Austin, 125 S. Ct. 2384, 2394-95 (2005) 
            (assignment to SuperMax prison, with attendant loss of 
            parole eligibility and with only annual status review, 
            constitutes an ``atypcial and significant'' deprivation.)
--When Process is Due
[P. 1815, add new paragraph to text after paragraph ending 
    with n.801:]

                    A delay in processing a claim for recovery of money 
            paid to the government is unlikely to rise to the level of a 
            violation of due process. In City of Los Angeles v. 
            David,\24\ a citizen paid a $134.50 impoundment fee to 
            retrieve an automobile that had been towed by the city. When 
            he subsequently sought to challenge the imposition of this 
            impoundment fee, he was unable to obtain a hearing until 27 
            days after his car had been towed. The Court held that the 
            delay was reasonable, as the private interest affected -- 
            the temporary loss of the use of the money -- could be 
            compensated by the addition of an interest payment to any 
            refund of the fee. Further factors considered were that a 
            30-day delay was unlikely to create a risk of significant 
            factual errors, and that shortening the delay significantly 
            would be administratively burdensome for the city.
---------------------------------------------------------------------------

                    \24\ 538 U.S. 715 (2003).
---------------------------------------------------------------------------
Jurisdiction
--Notice: Service of Process
[P. 1834, add to the beginning of n.903:]
            Thus, in Jones v. Flowers, 126 S. Ct. 1708 (2006), the Court 
            held that, after a state's certified letter, intended to 
            notify a property owner that his property would be sold 
            unless he satisfied a tax delinquency, was returned by the 
            post office marked ``unclaimed,'' the state should have 
            taken additional reasonable steps to notify the property 
            owner, as it would have been practicable for it to have done 
            so.
Power of the States to Regulate Procedure
--Costs, Damages, and Penalties
[P. 1838, add to n.932 after citation to BMW v. Gore:]
            State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 
            (2003) (applying BMW v. Gore guideposts to hold that a $145 
            million judgment for refusing to settle an insurance claim 
            was excessive, in part because it included consideration of 
            conduct occurring in other states as well as conduct bearing 
            no relation to the plaintiffs' harm).
[P. 1838, add to n.933:]
            The Court has suggested that awards exceeding a single-digit 
            ratio between punitive and compensatory damages would be 
            unlikely to pass scrutiny under due process, and that the 
            greater the compensatory damages, the less this ratio should 
            be. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 
            408, 424 (2003).

                         PROCEDURAL DUE PROCESS -- CRIMINAL

The Elements of Due Process
--Fair Trial
[P. 1855, add to n.1025 after the citation to Rose v. 
    Clark:]
            Middleton v. McNeil, 541 U.S. 43 (2004) (state courts could 
            assume that an erroneous jury instruction was not reasonably 
            likely to have misled a jury where other instructions made 
            correct standard clear).
[P. 1856, add new paragraph to text following n.1028:]

                    The use of visible physical restraints, such as 
            shackles, leg irons or belly chains, in front of a jury, has 
            been held to raise due process concerns. In Deck v. 
            Missouri,\25\ the Court noted a rule dating back to English 
            common law against bringing a defendant to trial in irons, 
            and a modern day recognition that such measures should be 
            used ``only in the presence of a special need.'' \26\ The 
            Court found that the use of visible restraints during the 
            guilt phase of a trial undermines the presumption of 
            innocence, limits the ability of a defendant to consult with 
            counsel, and ``affronts the dignity and decorum of judicial 
            proceedings.'' \27\ Even where guilt has already been 
            adjudicated, and a jury is considering the application of 
            the death penalty, the latter two considerations would 
            preclude the routine use of visible restraints. Only in 
            special circumstances, such as where a judge has made 
            particularized findings that security or flight risk 
            requires it, can such restraints be used.
---------------------------------------------------------------------------

                    \25\ 544 U.S. 622 (2005).
                    \26\ 544 U.S. at 626. In Illinois v. Allen, 397 U.S. 
            337, 344 (1970), the Court held, in dicta, that ``no person 
            should be tried while shackled or gagged except as a last 
            resort.''
                    \27\ 544 U.S. at 630, 631 (internal quotation marks 
            omitted).
---------------------------------------------------------------------------
[P. 1856, add to n.1030 after the citation to Crane v. 
    Kentucky:]
            Holmes v. South Carolina, 126 S. Ct. 1727 (2006) 
            (overturning rule that evidence of third-party guilt can be 
            excluded if there is strong forensic evidence establishing 
            defendant's culpability).
--Prosecutorial Misconduct
[P. 1857, add to n.1037:]
            Nor has it been settled whether inconsistent prosecutorial 
            theories in separate cases can be the basis for a due 
            process challenge. Bradshaw v. Stumpf, 125 S. Ct. 2398 
            (2005) (Court remanded case to determine whether death 
            sentence was based on defendant's role as shooter because 
            subsequent prosecution against an accomplice proceeded on 
            the theory that, based on new evidence, the accomplice had 
            done the shooting).
[P. 1858, add new footnote after the words ``prosecutor 
    withheld it'' four lines from bottom of page:]
            A statement by the prosecution that it will ``open its 
            files'' to the defendant appears to relieve the defendant of 
            his obligation to request such materials. See Strickler v. 
            Greene, 527 U.S. 263, 283-84 (1999); Banks v. Dretke, 540 
            U.S. 668, 693 (2004).
[P. 1859, add to n.1044:]
            Illinois v. Fisher, 540 U.S. 544 (2004) (per curiam) (the 
            routine destruction of a bag of cocaine 11 years after an 
            arrest, the defendant having fled prosecution during the 
            intervening years, does not violate due process).
[P. 1859, add new paragraph to text after n.1049:]

                    The Supreme Court has also held that ``Brady 
            suppression occurs when the government fails to turn over 
            even evidence that is `known only to police investigators 
            and not to the prosecutor.' . . . `[T]he individual 
            prosecutor has a duty to learn of any favorable evidence 
            known to others acting on the government's behalf in the 
            case, including the police.''' \28\
---------------------------------------------------------------------------

                    \28\ Youngblood v. West Virginia, 126 S. Ct. 2188, 
            2190 (2006) (per curiam), quoting Kyles v. Whitley, 514 U.S. 
            419, 438, 437 (1995).
---------------------------------------------------------------------------
[P. 1859, add to n.1049:]
            See also Banks v. Dretke, 540 U.S. 668, 692-94 (2004) 
            (failure of prosecution to correct perjured statement that 
            witness had not been coached and to disclose that separate 
            witness was a paid government informant established 
            prejudice for purposes of habeas corpus review).
--Proof, Burden of Proof, and Presumptions
[P. 1861, add new footnote following ``constitute the crime 
    charged'' in first sentence of first full paragraph of 
    text:]
            Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 
            U.S. 23 (1999). These cases both involved defendants 
            convicted under state statutes that were subsequently 
            interpreted in a way that would have precluded their 
            conviction. The Court remanded the cases to determine if the 
            new interpretation was in effect at the time of the previous 
            convictions, in which case those convictions would violate 
            due process.
[P. 1862, add to n.1063:]
            See also Dixon v. United States, 126 S. Ct. 2437 (2006) 
            (requiring defendant in a federal firearms case to prove her 
            duress defense by a preponderance of evidence did not 
            violate due process). In Dixon, the prosecution had the 
            burden of proving all elements of two federal firearms 
            violations, one requiring a ``willful'' violation (having 
            knowledge of the facts that constitute the offense) and the 
            other requiring a ``knowing'' violation (acting with 
            knowledge that the conduct was unlawful). Although 
            establishing other forms of mens rea (such as ``malicious 
            intent'') might require that a prosecutor prove that a 
            defendant's intent was without justification or excuse, the 
            Court held that neither of the forms of mens rea at issue in 
            Dixon contained such a requirement. Consequently, the burden 
            of establishing the defense of duress could be placed on the 
            defendant without violating due process.
[P. 1862, add new paragraph to text after n.1064:]

                    Despite the requirement that states prove each 
            element of a criminal offense, criminal trials generally 
            proceed with a presumption that the defendant is sane, and a 
            defendant may be limited in the evidence that he may present 
            to challenge this presumption. In Clark v. Arizona,\29\ the 
            Court considered a rule adopted by the Supreme Court of 
            Arizona that prohibited the use of expert testimony 
            regarding mental disease or mental capacity to show lack of 
            mens rea, ruling that the use of such evidence could be 
            limited to an insanity defense. In Clark, the Court weighed 
            competing interests to hold that such evidence could be 
            ``channeled'' to the issue of insanity due to the 
            controversial character of some categories of mental 
            disease, the potential of mental-disease evidence to 
            mislead, and the danger of according greater certainty to 
            such evidence than experts claim for it.\30\
---------------------------------------------------------------------------

                    \29\ 126 S. Ct. 2709 (2006).
                    \30\ 126 S. Ct. at 2731-32, 34-36.
---------------------------------------------------------------------------
--The Problem of the Incompetent or Insane Defendant or 
    Convict
[P. 1865, add new paragraph to text after n.1078:]

                    Where a defendant is found competent to stand trial, 
            a state appears to have significant discretion in how it 
            takes account of mental illness or defect at the time of the 
            offense in determining criminal responsibility.\31\ The 
            Court has identified several tests that are used by states 
            in varying combinations to address the issue: the M'Naghten 
            test (cognitive incapacity or moral incapacity),\32\ 
            volitional incapacity,\33\ and the irresistible-impulse 
            test.\34\ ``[I]t is clear that no particular formulation has 
            evolved into a baseline for due process, and that the 
            insanity rule, like the conceptualization of criminal 
            offenses, is substantially open to state choice.'' \35\
---------------------------------------------------------------------------

                    \31\ Clark v. Arizona, 126 S. Ct. 2709 (2006).
                    \32\ M'Naghten's Case, 8 Eng. Rep. 718 (1843) states 
            that ``[T]o establish a defence on the ground of insanity, 
            it must be clearly proved that, at the time of the 
            committing of the act, the party accused was laboring under 
            such a defect of reason, from disease of the mind, as not to 
            know the nature and quality of the act he was doing; or, if 
            he did know it, that he did not know he was doing what was 
            wrong.'' 8 Eng. Rep., at 722.
                    \33\ See Queen v. Oxford, 173 Eng. Rep. 941, 950 
            (1840) (``If some controlling disease was, in truth, the 
            acting power within [the defendant] which he could not 
            resist, then he will not be responsible'').
                    \34\ See State v. Jones, 50 N.H. 369 (1871) (``If 
            the defendant had a mental disease which irresistibly 
            impelled him to kill his wife -- if the killing was the 
            product of mental disease in him -- he is not guilty; he is 
            innocent -- as innocent as if the act had been produced by 
            involuntary intoxication, or by another person using his 
            hand against his utmost resistance'').
                    \35\ Clark, 126 S. Ct. at 2772. In Clark, the Court 
            considered an Arizona statute, based on the M'Naghten case, 
            that was amended to eliminate the defense of cognitive 
            incapacity. The Court noted that, despite the amendment, 
            proof of cognitive incapacity could still be introduced as 
            it would be relevant (and sufficient) to prove the remaining 
            moral incapacity test. Id. at 2722.
---------------------------------------------------------------------------
[P. 1866, add to text after n.1085:]


            The Court, however, left ``to the State[s] the task of 
            developing appropriate ways to enforce the constitutional 
            restriction upon its execution of sentences.'' \36\
---------------------------------------------------------------------------


                    \36\ 477 U.S. at 416-17.
---------------------------------------------------------------------------

                    In Atkins v. Virginia, the Court held that the 
            Eighth Amendment also prohibits the state from executing a 
            person who is mentally retarded, and added, ``As was our 
            approach in Ford v. Wainwright with regard to insanity, `we 
            leave to the State[s] the task of developing appropriate 
            ways to enforce the constitutional restriction upon [their] 
            execution of sentences.''' \37\
---------------------------------------------------------------------------

                    \37\ 536 U.S. at 317 (citation omitted) (quoting 
            Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)). The Court 
            quoted this language again in Schriro v. Smith, holding that 
            ``[t]he Ninth Circuit erred in commanding the Arizona courts 
            to conduct a jury trial to resolve Smith's mental 
            retardation claim.'' 126 S. Ct. 7, 9 (2005) (per curiam). 
            States, the Court added, are entitled to ``adopt[ ] their 
            own measures for adjudicating claims of mental 
            retardation,'' though ``those measures might, in their 
            application, be subject to constitutional challenge.'' Id.
---------------------------------------------------------------------------

                    Issues of substantive due process may arise if the 
            government seeks to compel the medication of a person found 
            to be incompetent to stand trial. In Washington v. 
            Harper,\38\ the Court had found that an individual has a 
            significant ``liberty interest'' in avoiding the unwanted 
            administration of antipsychotic drugs. In Sell v. United 
            States,\39\ the Court found that this liberty interest could 
            in ``rare'' instances be outweighed by the government's 
            interest in bringing an incompetent individual to trial. 
            First, however, the government must engage in a fact-
            specific inquiry as to whether this interest is important in 
            a particular case.\40\ Second, the court must find that the 
            treatment is likely to render the defendant competent to 
            stand trial without resulting in side effects that will 
            interfere with the defendant's ability to assist counsel. 
            Third, the court must find that less intrusive treatments 
            are unlikely to achieve substantially the same results. 
            Finally, the court must conclude that administration of the 
            drugs is in the patient's best medical interests.
---------------------------------------------------------------------------

                    \38\ 494 U.S. 210 (1990) (prison inmate could be 
            drugged against his will if he presented a risk of serious 
            harm to himself or others).
                    \39\ 539 U.S. 166 (2003).
                    \40\ For instance, if the defendant is likely to 
            remain civilly committed absent medication, this would 
            diminish the government's interest in prosecution. 539 U.S. 
            at 180.
---------------------------------------------------------------------------
--Guilty Pleas
[P. 1868, substitute for final sentence of n.1092:]
            However, this does not mean that a court accepting a guilty 
            plea must explain all the elements of a crime, as it may 
            rely on counsel's representations to the defendant. Bradshaw 
            v. Stumpf, 125 S. Ct. 2398 (2005) (where defendant 
            maintained that shooting was done by someone else, guilty 
            plea to aggravated manslaughter was still valid, as such 
            charge did not require defendant to be the shooter). See 
            also Blackledge v. Allison, 431 U.S. 63 (1977) (defendant 
            may collaterally challenge guilty plea where defendant had 
            been told not to allude to existence of a plea bargain in 
            court, and such plea bargain was not honored).
--Rights of Prisoners
[P. 1874, add to n.1132:]
            There was some question as to the standard to be applied to 
            racial discrimination in prisons after Turner v. Safley, 482 
            U.S. 78 (1987) (prison regulations upheld if ``reasonably 
            related to legitimate penological interests''). In Johnson 
            v. California, 543 U.S. 499 (2005), however, the Court held 
            that discriminatory prison regulations would continue to be 
            evaluated under a ``strict scrutiny'' standard, which 
            requires that regulations be narrowly tailored to further 
            compelling governmental interests. Id. at 509-13 (striking 
            down a requirement that new or transferred prisoners at the 
            reception area of a correctional facility be assigned a 
            cellmate of the same race for up to 60 days before they are 
            given a regular housing assignment).
[P. 1875, add to n.1136:]
            See Overton v. Bazzetta, 539 U.S. 126 (2003) (upholding 
            restrictions on prison visitation by unrelated children or 
            children over whom a prisoner's parental rights have been 
            terminated, and all regular visitation for a period 
            following a prisoner's violation of substance abuse rules).
[P. 1875, add new footnote to end of fifth sentence of first 
    full paragraph:]
            For instance, limiting who may visit prisoners is 
            ameliorated by the ability of prisoners to communicate 
            through other visitors, by letter, or by phone. 539 U.S. at 
            135.
[P. 1877, add new paragraph to text after n.1148, consisting 
    of the following sentence followed by the material 
    through n.1149:]


            Transfer of a prisoner to a high security facility, with an 
            attendant loss of the right to parole, gave rise to a 
            liberty interest, although the due process requirements to 
            protect this interest are limited.\41\
---------------------------------------------------------------------------


                    \41\ Wilkinson v. Austin, 125 S. Ct. 2384, 2394-95 
            (2005) (assignment to Ohio SuperMax prison, with attendant 
            loss of parole eligibility and with only annual status 
            review, constitutes an ``atypcial and significant'' 
            deprivation). In Wilkinson, the Court upheld Ohio's multi-
            level review process, despite the fact that a prisoner was 
            provided only summary notice as to the allegations against 
            him, a limited record was created, the prisoner could not 
            call witnesses, and reevaluation of the assignment only 
            occurred at one 30-day review and then annually. Id. at 
            2392-93, 2395-98.
---------------------------------------------------------------------------

                              EQUAL PROTECTION OF LAWS

Scope and Applicaton
--State Action
[P. 1893, add to n.1223:]
            But see City of Cuyahoga Falls v. Buckeye Community Hope 
            Found., 538 U.S. 188 (2003) (ministerial acts associated 
            with a referendum repealing a low-income housing ordinance 
            did not constitute state action, as the referendum process 
            was facially neutral, and the potentially discriminatory 
            repeal was never enforced).

               TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND 
                       RELATED EXERCISES OF THE POLICE POWERS

Taxation
--Classification for Purposes of Taxation
[P. 1923, add to n.1390 after the paragraph on 
    ``Electricity'':]
            Gambling: slot machines on excursion river boats are taxed 
            at a maximum rate of 20 percent, while slot machines at a 
            racetrack are taxed at a maximum rate of 36 percent. 
            Fitzgerald v. Racing Ass'n of Central Iowa, 539 U.S. 103 
            (2003).
[P. 1924, add to n.1391:]
            Fitzgerald v. Racing Ass'n of Central Iowa, 539 U.S. 103 
            (2003).

                              EQUAL PROTECTION AND RACE

Juries
[P. 1958, add new footnote at end of first sentence of 
    second full paragraph:]
            476 U.S. 79, 96 (1986). Establishing a prima facie case can 
            be done through a ``wide variety of evidence, so long as the 
            sum of proffered facts gives rise to an inference of 
            discriminatory purpose.'' Id. at 93-94. A state, however, 
            cannot require that a defendant prove a prima facie case 
            under a ``more likely than not'' standard, as the function 
            of the Batson test is to create an inference and shift the 
            burden to the state to offer race-neutral reasons for the 
            peremptory challenges. Only then does a court weigh the 
            likelihood that racial discrimination occurred. Johnson v. 
            California, 543 U.S. 499 (2005).
[P. 1958, add to n.1594:]
            In fact, ``[a]lthough the prosecutor must present a 
            comprehensible reason, `[t]he [rebuttal] does not demand an 
            explanation that is persuasive, or even plausible'; so long 
            as the reason is not inherently discriminatory, it 
            suffices.'' \42\ Such a rebuttal having been offered, ``the 
            court must then determine whether the defendant has carried 
            his burden of proving purposeful discrimination. This final 
            step involves evaluating `the persuasiveness of the 
            justification' proffered by the prosecutor, but the 
            `ultimate burden of persuasion regarding racial motivation 
            rests with, and never shifts from, the opponent of the 
            strike.''' \43\
---------------------------------------------------------------------------
                    \42\ Rice v. Collins, 126 S. Ct. 969, 973-74 (2006) 
            (citation omitted). The holding of the case was that, in a 
            habeas corpus action, the Ninth Circuit ``panel majority 
            improperly substituted its evaluation of the record for that 
            of the state trial court.'' Id. at 973. Justice Breyer, 
            joined by Justice Souter, concurred but suggested ``that 
            legal life without peremptories is no longer unthinkable'' 
            and ``that we should reconsider Batson's test and the 
            peremptory challenge system as a whole.'' Id. at 977.
                    \43\ Rice v. Collins, 126 S. Ct. at 974 (citations 
            omitted). In Miller-El v. Dretke, 125 S. Ct. 2317 (2005), 
            the Court found discrimination in the use of peremptory 
            strikes based on numerous factors, including the high ratio 
            of minorities struck from the venire panel (of 20 blacks, 
            nine were excused for cause and ten were peremptorily 
            struck). Other factors considered by the Court were the fact 
            that the race-neutral reasons given for the peremptory 
            strikes of black panelists ``appeared equally on point as to 
            some white jurors who served,'' id. at 2325-26; the 
            prosecution used ``jury shuffling'' (rearranging the order 
            of panel members to be seated and questioned) twice when 
            blacks were at the front of the line; the prosecutor asked 
            different questions of black and white panel members; and 
            there was evidence of a long-standing policy of excluding 
            blacks from juries.
---------------------------------------------------------------------------
Permissible Remedial Utilization of Racial Classifications
[P. 1970, add new paragraph to text at end of section:]

                    By applying strict scrutiny, the Court was in 
            essence affirming Justice Powell's individual opinion in 
            Bakke, which posited a strict scrutiny analysis of 
            affirmative action. There remained the question, however, 
            whether the Court would endorse Justice Powell's suggestion 
            that creating a diverse student body in an educational 
            setting was a compelling governmental interest that would 
            survive strict scrutiny analysis. It engendered some 
            surprise, then, that the Court essentially reaffirmed 
            Justice Powell's line of reasoning in the cases of Grutter 
            v. Bollinger \44\ and Gratz v. Bollinger.\45\
---------------------------------------------------------------------------

                    \44\ 539 U.S. 306 (2003).
                    \45\ 539 U.S. 244 (2003).
---------------------------------------------------------------------------

                    In Grutter, the Court considered the admissions 
            policy of the University of Michigan Law School, which 
            requires admissions officials to evaluate each applicant 
            based on all the information available in his file (e.g., 
            grade point average, Law School Admissions Test score, 
            personal statement, recommendations) and on ``soft'' 
            variables (e.g., strength of recommendations, quality of 
            undergraduate institution, difficulty of undergraduate 
            courses). The policy also considered ``racial and ethnic 
            diversity with special reference to the inclusion of 
            students from groups which have been historically 
            discriminated against, like African-Americans, Hispanics and 
            Native Americans . . . .'' While the policy did not limit 
            diversity to ``ethnic and racial'' classifications, it did 
            seek a ``critical mass'' of minorities so that those 
            students would not feel isolated.\46\
---------------------------------------------------------------------------

                    \46\ 539 U.S. at 323-26.
---------------------------------------------------------------------------

                    The Grutter Court found that student diversity 
            provided significant benefits, not just to the students who 
            otherwise might not have been admitted, but also to the 
            student body as a whole. These benefits include ``cross-
            racial understanding,'' the breakdown of racial stereotypes, 
            the improvement of classroom discussion, and the preparation 
            of students to enter a diverse workforce. Further, the Court 
            emphasized the role of education in developing national 
            leaders. Thus, the Court found that such efforts were 
            important to ``cultivate a set of leaders with legitimacy in 
            the eyes of the citizenry.'' \47\ As the University did not 
            rely on quotas, but rather relied on ``flexible 
            assessments'' of a student's record, the Court found that 
            the University's policy was narrowly tailored to achieve the 
            substantial governmental interest of achieving a diverse 
            student body.
---------------------------------------------------------------------------

                    \47\ 539 U.S. at 335.
---------------------------------------------------------------------------

                    The law school's admission policy, however, can be 
            contrasted with the University's undergraduate admission 
            policy. In Gratz, the Court evaluated the undergraduate 
            program's ``selection index,'' which assigned applicants up 
            to 150 points based on a variety of factors similar to those 
            considered by the Law School. Applicants with scores over 
            100 were usually admitted, while those with scores of less 
            than 100 fell into categories that could result in either 
            admittance, postponement, or rejection. Of particular 
            interest to the Court was the fact that an applicant was 
            entitled to 20 points based solely upon membership in an 
            underrepresented racial or ethnic minority group. The policy 
            also included the ``flagging'' of certain applications for 
            special review, and underrepresented minorities were among 
            those whose applications were flagged.\48\
---------------------------------------------------------------------------

                    \48\ 539 U.S. at 272-73.
---------------------------------------------------------------------------

                    The Court in Gratz struck down this admissions 
            policy, relying again on Justice Powell's opinion in Bakke. 
            While Justice Powell had thought it permissible that ``race 
            or ethnic background . . . be deemed a `plus' in a 
            particular applicant's file,'' \49\ the system he envisioned 
            involved individualized consideration of all elements of an 
            application to ascertain how the applicant would contribute 
            to the diversity of the student body. According to the 
            majority opinion in Gratz, the undergraduate policy did not 
            provide for such individualized consideration. Instead, by 
            automatically distributing 20 points to every applicant from 
            an underrepresented minority group, the policy effectively 
            admitted every qualified minority applicant. While 
            acknowledging that the volume of applications could make 
            individualized assessments an ``administrative challenge,'' 
            the Court found that the policy was not narrowly tailored to 
            achieve the University's asserted compelling interest in 
            diversity.\50\
---------------------------------------------------------------------------

                    \49\ 438 U.S. at 317.
                    \50\ 438 U.S. at 284-85.
---------------------------------------------------------------------------

                              THE NEW EQUAL PROTECTION

Fundamental Interests: The Political Process
--Apportionment and Districting
[P. 2012, add new paragraphs after the paragraph ending at 
    n.1841:]

                    In the following years, however, litigants seeking 
            to apply Davis against alleged partisan gerrymandering were 
            generally unsuccessful. Then, when the Supreme Court 
            revisited the issue in 2004, it all but closed the door on 
            such challenges. In Vieth v. Jubelirer,\51\ a four-Justice 
            plurality would have overturned Davis v. Bandemer's holding 
            that challenges to political gerrymandering are justiciable, 
            but five Justices disagreed. The plurality argued that 
            partisan considerations are an intrinsic part of 
            establishing districts,\52\ that no judicially discernable 
            or manageable standards exist to evaluate unlawful partisan 
            gerrymandering,\53\ and that the power to address the issue 
            of political gerrymandering resides in Congress.\54\
---------------------------------------------------------------------------

                    \51\ 541 U.S. 267 (2004).
                    \52\ 541 U.S. at 285-86.
                    \53\ 541 U.S. at 281-90.
                    \54\ 541 U.S. at 271 (noting that Article I, Sec.  4 
            provides that Congress may alter state laws regarding the 
            manner of holding elections for Senators and 
            Representatives).
---------------------------------------------------------------------------

                    Of the five Justices who believed that challenges to 
            political gerrymandering are justiciable, four dissented, 
            but Justice Kennedy concurred with the four-Justice 
            plurality's holding, thereby upholding Pennsylvania's 
            congressional redistricting plan against a political 
            gerrymandering challenge. Justice Kennedy agreed that the 
            lack ``of any agreed upon model of fair and effective 
            representation'' or ``substantive principles of fairness in 
            districting'' left the Court with ``no basis on which to 
            define clear, manageable, and politically neutral standards 
            for measuring the particular burden a given partisan 
            classification imposes on representational rights.'' \55\ 
            But, though he concurred in the holding, Justice Kennedy 
            held out hope that judicial relief from political 
            gerrymandering may be possible ``if some limited and precise 
            rationale were found'' to evaluate partisan redistricting. 
            Davis v. Bandemer was thus preserved.\56\
---------------------------------------------------------------------------

                    \55\ 541 U.S. at 307-08 (Justice Kennedy, 
            concurring).
                    \56\ 541 U.S. at 306 (Justice Kennedy, concurring). 
            Although Justice Kennedy admitted that no workable model had 
            been proposed either to evaluate the burden partisan 
            districting imposed on representational rights or to confine 
            judicial intervention once a violation has been established, 
            he held out the possibility that such a standard may emerge, 
            based on either equal protection or First Amendment 
            principles.
---------------------------------------------------------------------------

                    In League of United Latin American Citizens v. 
            Perry, a widely splintered Supreme Court plurality largely 
            upheld a Texas congressional redistricting plan that the 
            state legislature had drawn mid-decade, seemingly with the 
            sole purpose of achieving a Republican congressional 
            majority.\57\ The plurality did not revisit the 
            justiciability question, but examined ``whether appellants' 
            claims offer the Court a manageable, reliable measure of 
            fairness for determining whether a partisan gerrymander 
            violates the Constitution.'' \58\ The plurality was 
            ``skeptical . . . of a claim that seeks to invalidate a 
            statute based on a legislature's unlawful motive but does so 
            without reference to the content of the legislation 
            enacted.'' For one thing, although ``[t]he legislature does 
            seem to have decided to redistrict with the sole purpose of 
            achieving a Republican congressional majority, . . . 
            partisan aims did not guide every line it drew.'' \59\ Apart 
            from that, the ``sole-motivation theory'' fails to show what 
            is necessary to identify an unconstitutional act of partisan 
            gerrymandering: ``a burden, as measured by a reliable 
            standard, on the complainants' representational rights.'' 
            \60\ Moreover, ``[t]he sole-intent standard . . . is no more 
            compelling when it is linked to . . . mid-decennial 
            legislation. . . . [T]here is nothing inherently suspect 
            about a legislature's decision to replace a mid-decade a 
            court-ordered plan with one of its own. And even if there 
            were, the fact of mid-decade redistricting alone is no sure 
            indication of unlawful political gerrymanders.'' \61\ The 
            plurality also found ``that mid-decade redistricting for 
            exclusively partisan purposes'' did not in this case 
            ``violate[ ] the one-person, one-vote requirement.'' \62\ 
            Because ordinary mid-decade districting plans do not 
            necessarily violate the one-person, one-vote requirement, 
            the only thing out of the ordinary with respect to the Texas 
            plan was that it was motivated solely by partisan 
            considerations, and the plurality had already rejected the 
            sole-motivation theory.\63\ League of United Latin American 
            Citizens v. Perry thus left earlier Court precedent 
            essentially unchanged. Claims of unconstitutional partisan 
            gerrymandering are justiciable, but a reliable measure of 
            what constitutes unconstitutional partisan gerrymandering 
            remains to be found.
---------------------------------------------------------------------------

                    \57\ 126 S. Ct. 2594, 2609 (2006). The design of one 
            congressional district was held to violate the Voting Rights 
            Act because it diluted the voting power of Latinos. Id. at 
            2612-2623.
                    \58\ 126 S. Ct. at 2607.
                    \59\ 126 S. Ct. at 2609-2610.
                    \60\ 126 S. Ct. at 2610.
                    \61\ 126 S. Ct. at 2610.
                    \62\ 126 S. Ct. at 2611.
                    \63\ 126 S. Ct. at 2612.
---------------------------------------------------------------------------
Section 5. Enforcement
Congressional Definition of Fourteenth Amendment Rights
[P. 2047, add to text at end of section:]

                    The Court's most recent decisions in this area, 
            however, seem to de-emphasize the need for a substantial 
            legislative record when the class being discriminated 
            against is protected by heightened scrutiny of the 
            government's action. In Nevada Department of Human Resources 
            v. Hibbs,\64\ the Court considered the recovery of monetary 
            damages against states under the Family and Medical Leave 
            Act. This Act provides, among other things, that both male 
            and female employees can take up to twelve weeks of unpaid 
            leave to care for a close relative with a serious health 
            condition. Noting that the Fourteenth Amendment could be 
            used to justify prophylactic legislation, the Court accepted 
            the argument that the Act was intended to prevent gender-
            based discrimination in the workplace tracing to the 
            historic stereotype that women are the primary caregivers. 
            Congress had documented historical instances of 
            discrimination against women by state governments, and had 
            found that women were provided maternity leave more often 
            than men were provided paternity leave.
---------------------------------------------------------------------------

                    \64\ 538 U.S. 721 (2003).
---------------------------------------------------------------------------

                    Although there was a relative absence of proof that 
            states were still engaged in wholesale gender discrimination 
            in employment, the Court distinguished Garrett and Kimel, 
            which had held Congress to a high standard for justifying 
            legislation attempting to remedy classifications subject 
            only to rational basis review. ``Because the standard for 
            demonstrating the constitutionality of a gender-based 
            classification is more difficult to meet than our rational 
            basis test \65\ . . . it was easier for Congress to show a 
            pattern of state constitutional violations.'' \66\ 
            Consequently, the Court upheld an across-the-board, routine 
            employment benefit for all eligible employees as a congruent 
            and proportional response to the gender stereotype.
---------------------------------------------------------------------------

                    \65\ Statutory classifications that distinguish 
            between males and females are subject to heightened 
            scrutiny, Craig v. Boren, 429 U.S. 190, 197-199 (1976); they 
            must be substantially related to the achievement of 
            important governmental objectives, United States v. 
            Virginia, 518 U.S. 515, 533 (1996).
                    \66\ 538 U.S. at 736.
---------------------------------------------------------------------------

                    Applying the same approach, the Court in Tennessee 
            v. Lane \67\ held that Congress could authorize damage suits 
            against a state for failing to provide disabled persons 
            physical access to its courts. Title II of the Americans 
            with Disabilities Act (ADA) provides that no qualified 
            person shall be excluded or denied the benefits of a public 
            program by reason of a disability,\68\ but since disability 
            is not a suspect class, the application of Title II against 
            states would seem suspect under the reasoning of 
            Garrett.\69\ Here, however, the Court evaluated the case as 
            a limit on access to court proceedings, which, in some 
            instances, has been held to be a fundamental right subject 
            to heightened scrutiny under the Due Process Clause.\70\
---------------------------------------------------------------------------

                    \67\ 541 U.S. 509 (2004).
                    \68\ 42 U.S.C. ' 12132.
                    \69\ 531 U.S. 356 (2001).
                    \70\ See, e.g., Faretta v. California, 422 U.S. 806, 
            819, n.15 (1975) (a criminal defendant has a right to be 
            present at all stages of a trial where his absence might 
            frustrate the fairness of the proceedings).
---------------------------------------------------------------------------

                    Reviewing the legislative history of the ADA, the 
            Court found that Title II, as applied, was a ``congruent and 
            proportional'' response to a congressional finding of ``a 
            backdrop of pervasive unequal treatment in the 
            administration of state services and programs, including 
            systematic deprivations of fundamental rights.'' \71\ 
            However, as pointed out by both the majority and by Justice 
            Rehnquist in dissent, the deprivations relied upon by the 
            majority were not limited to instances of imposing 
            unconstitutional deprivations of court access to disabled 
            persons.\72\ Rather, in an indication of a more robust 
            approach where protection of fundamental rights is at issue, 
            the majority also relied more broadly on a history of state 
            limitations on the rights of the disabled in areas such as 
            marriage and voting, and on limitations of access to public 
            services beyond the use of courts.\73\
---------------------------------------------------------------------------

                    \71\ 541 U.S. at 531, 524.
                    \72\ 541 U.S. at 541-542 (Rehnquist, C.J., 
            dissenting).
                    \73\ 541 U.S. at 524-525. Justice Rehnquist, in 
            dissent, disputed Congress' reliance on evidence of 
            disability discrimination in the provision of services 
            administered by local, not state, governments, as local 
            entities do not enjoy the protections of sovereign immunity. 
            Id. at 1999-2000. The majority, in response, noted that 
            local courts are generally treated as arms of the state for 
            sovereign immunity purposes, Mt. Healthy City Bd. of Educ. 
            v. Doyle, U.S. 274, 280 (1977), and that the action of non-
            state actors had previously been considered in such pre-
            Boerne cases as South Carolina v. Katzenbach, 383 U.S. 301 
            312-15 (1966).
---------------------------------------------------------------------------

                    Congress' authority under Sec.  5 of the Fourteenth 
            Amendment to abrogate states' Eleventh Amendment immunity is 
            strongest when a state's conduct at issue in a case is 
            alleged to have actually violated a constitutional right. In 
            United States v. Georgia,\74\ a disabled state prison inmate 
            who used a wheelchair for mobility alleged that his 
            treatment by the state of Georgia and the conditions of his 
            confinement violated, among other things, Title II of the 
            ADA and the Eighth Amendment (as incorporated by the 
            Fourteenth Amendment). A unanimous Court found that, to the 
            extent that the prisoner's claims under Title II for money 
            damages were based on conduct that independently violated 
            the provisions of the Fourteenth Amendment, they could be 
            applied against the state. In doing so, the Court declined 
            to apply the congruent and proportional response test, 
            distinguishing the cases applying that standard (discussed 
            above) as not generally involving allegations of direct 
            constitutional violations.\75\
---------------------------------------------------------------------------

                    \74\ 125 S. Ct. 877 (2006).
                    \75\ ``While the Members of this Court have 
            disagreed regarding the scope of Congress' `prophylactic' 
            enforcement powers under Sec.  5 of the Fourteenth 
            Amendment, no one doubts that Sec.  5 grants Congress the 
            power to `enforce . . . the provisions' of the Amendment by 
            creating private remedies against the States for actual 
            violations of those provisions.'' 125 S. Ct. at 881 
            (citations omitted).
   ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE 
---------------------------------------------------------------------------
                   SUPREME COURT OF THE UNITED STATES

159. Act of March 27, 2002, the Bipartisan Campaign Reform Act of 2002, 
Pub. L. 107-155, Sec. Sec.  213, 318; 2 U.S.C. Sec. Sec.  315(d)(4), 441k.

                    Section 213 of the Bipartisan Campaign Reform Act of 
            2002 (BCRA), which amended the Federal Election Campaign Act 
            of 1971 (FECA) to require political parties to choose 
            between coordinated and independent expenditures during the 
            post-nomination, pre-election period, is unconstitutional 
            because it burdens parties' right to make unlimited 
            independent expenditures. Section 318 of BCRA, which amended 
            FECA to prohibit persons ``17 years old or younger'' from 
            contributing to candidates or political parties, is invalid 
            as violating the First Amendment rights of minors.

                                McConnell v. FEC, 540 U.S. 93 (2003).

160. Act of April 30, 2003, Pub. L. 108-21, Sec.  401(a)(1), 401(d)(2), 117 
Stat. 667, 670; 18 U.S.C. Sec. Sec.  3553(b)(1), 3742(e).

                    Two provisions of the Sentencing Reform Act, one 
            that makes the Guidelines mandatory, and one that sets forth 
            standards governing appeals of departures from the mandatory 
            Guidelines, are invalidated. The Sixth Amendment right to 
            jury trial limits sentence enhancements that courts may 
            impose pursuant to the Guidelines.

                                United States v. Booker, 543 U.S. 220 
                                    (2005).

                                Justices concurring: Breyer, O'Connor, 
                                    Kennedy, Ginsburg, and Rehnquist, 
                                    C.J.

                                Justices dissenting: Stevens, Souter, 
                                    Scalia, and Thomas.
 STATE CONSTITUTIONAL OR STATUTORY PROVISIONS AND MUNICIPAL ORDINANCES 
      HELD UNCONSTITUTIONAL OR HELD TO BE PREEMPTED BY FEDERAL LAW

                   I. STATE LAWS HELD UNCONSTITUTIONAL

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

                    A California statute that permits resurrection of an 
            otherwise time-barred criminal prosecution for sexual abuse 
            of a child, and that was itself enacted after the pre-
            existing limitations period had expired for the crimes at 
            issue, violates the Ex Post Facto Clause of Art. I, Sec.  
            10, cl. 1.

                                Justices concurring: Breyer, Stevens, 
                                    O'Connor, Souter, Ginsburg.

                                Justices dissenting: Kennedy, Scalia, 
                                    Thomas, Rehnquist., C.J.

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

                    The prima facie evidence provision of Virginia's 
            cross-burning statute, stating that a cross burning ``shall 
            be prima facie evidence of an intent to intimidate,'' is 
            unconstitutional.

                                Justices concurring: O'Connor, Stevens, 
                                    Breyer, Rehnquist, C.J.

                                Justices concurring specially: Souter, 
                                    Kennedy, Ginsburg.

                                Justices dissenting: Scalia, Thomas.

938. Lawrence v. Texas, 539 U.S. 558 (2003).

                    A Texas statute making it a crime for two people of 
            the same sex to engage in sodomy violates the Due Process 
            Clause of the Fourteenth Amendment. The right to liberty 
            protected by the Due Process Clause includes the right of 
            two adults, ``with full and mutual consent from each other, 
            [to] engag[e] in sexual practices common to a homosexual 
            lifestyle.''

                                Justices concurring: Kennedy, Stevens, 
                                    Souter, Ginsburg, Breyer.

                                Justice concurring specially: O'Connor.

                                Justices dissenting: Scalia, Thomas, 
                                    Rehnquist, C.J.

939. Blakely v. Washington, 542 U.S. 296 (2004).

                    Washington State's sentencing law, which allows a 
            judge to impose a sentence above the standard range if he 
            finds ``substantial and compelling reasons justifying an 
            exceptional sentence,'' is inconsistent with the Sixth 
            Amendment right to trial by jury.

                                Justices concurring: Scalia, Stevens, 
                                    Souter, Thomas, and Ginsburg.

                                Justices dissenting: O'Connor, Breyer, 
                                    Kennedy, Rehnquist, C.J.

940. Granholm v. Heald, 544 U.S. 460 (2005).

                    Michigan and New York laws that allow in-state 
            wineries to sell wine directly to consumers but prohibit or 
            discourage out-of-state wineries from doing so discriminate 
            against interstate commerce in violation of the Commerce 
            Clause, and are not authorized by the Twenty-first 
            Amendment.

                                Justices concurring: Kennedy, Scalia, 
                                    Souter, Ginsburg, and Breyer.

                                Justices dissenting: Stevens, O'Connor, 
                                    Thomas, Rehnquist, C.J.

941. Halbert v. Michigan, 125 S. Ct. 2582 (2005).

                    A Michigan statute making appointment of appellate 
            counsel discretionary with the court for indigent criminal 
            defendants who plead nolo contendere or guilty is 
            unconstitutional to the extent that it deprives indigents of 
            the right to the appointment of counsel to seek ``first-tier 
            review'' in the Michigan Court of Appeals.

                                Justices concurring: Ginsburg, Stevens, 
                                    O'Connor, Kennedy, Souter, and 
                                    Breyer.

                                Justices dissenting: Thomas, Scalia, and 
                                    Rehnquist, C.J.

942. Roper v. Simmons, 543 U.S. 551 (2005).

                    Missouri's law setting the minimum age at 16 for 
            persons eligible for the death penalty violates the Eighth 
            Amendment's ban on cruel and unusual punishment as applied 
            to persons who were under 18 at the time they committed 
            their offense.

                                Justices concurring: Kennedy, Stevens, 
                                    Souter, Ginsburg, and Breyer.

                                Justices dissenting: O'Connor, Scalia, 
                                    Thomas, and Rehnquist.

943. Jones v. Flowers, 126 S. Ct. 1708 (2006).

                    Arkansas statute violated due process when 
            interpreted not to require the Arkansas Commissioner of 
            State Lands to take additional reasonable steps to notify a 
            property owner of intent to sell the property to satisfy a 
            tax delinquency, after the initial notice was returned by 
            the Post Office unclaimed.

                                Justices concurring: Kennedy, Stevens, 
                                    Souter, Ginsburg, and Breyer.

                                Justices dissenting: O'Connor, Scalia, 
                                    Thomas, Rehnquist.

944. Randall v. Sorrell, 126 S. Ct. 2479 (2006).

                    Vermont campaign finance statute's limitations on 
            both expenditures and contributions violated freedom of 
            speech.

                                Justices concurring: Breyer, Roberts, 
                                    C.J., Alito, Kennedy, Thomas, 
                                    Scalia.

                                Justices dissenting: Stevens, Souter, 
                                    Ginsberg.

         III. STATE AND LOCAL LAWS HELD PREEMPTED BY FEDERAL LAW

225. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003).

                    Alabama's usury statute is preempted by sections 85 
            and 86 of the National Bank Act as applied to interest rates 
            charged by national banks.

                                Justices concurring: Stevens, O'Connor, 
                                    Kennedy, Souter, Ginsburg, Breyer, 
                                    and Rehnquist, C.J.

                                Justices dissenting: Scalia and Thomas.

226. American Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003).

                    California's Holocaust Victim Insurance Relief Act, 
            which requires any insurance company doing business in the 
            state to disclose information about policies it or 
            ``related'' companies sold in Europe between 1920 and 1945, 
            is preempted as interfering with the Federal Government's 
            conduct of foreign relations.

                                Justices concurring: Souter, O'Connor, 
                                    Kennedy, Breyer, and Rehnquist, 
                                    C.J..

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

227. Aetna Health Inc. v. Davila, 542 U.S. 200 (2004).

                    Suits brought in state court alleging that HMOs 
            violated their duty under the Texas Health Care Liability 
            Act ``to exercise ordinary care when making health care 
            treatment decisions'' are preempted by ERISA Sec.  502(a), 
            which authorizes suit ``to recover benefits due [a 
            participant] under the terms of his plan.''

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

                    California law allowing use of marijuana for medical 
            purposes is preempted by the Controlled Substances Act's 
            categorical prohibition of the manufacture and possession of 
            marijuana.

                                Justices concurring: Stevens, Kennedy, 
                                    Souter, Ginsburg, Breyer.

                                Justices dissenting: O'Connor, Thomas, 
                                    Rehnquist, C.J.

229. Arkansas Department of Health and Human Services v. Ahlborn, 126 S. 
Ct. 1752 (2006).

                    Arkansas statute that imposes lien on tort 
            settlements in an amount equal to Medicaid costs, even when 
            Medicaid costs exceed the portion of the settlement that 
            represents medical costs, is preempted by the Federal 
            Medicaid law insofar as the Arkansas statute applies to 
            amounts other than medical costs.

230. League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 
(2006).

                    Part III of the opinion found a Texas redistricting 
            statute to violate the federal Voting Rights Act because it 
            diluted the voting power of Latinos.

                                Justices concurring in Part III: 
                                    Kennedy, Stevens, Souter, Ginsberg, 
                                    Breyer.

                                Justice dissenting from Part III: 
                                    Roberts, C.J., Alito, Scalia, 
                                    Thomas.
        SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT DECISION

                Overruling Case               Overruled Case(s)



221.

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

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



222.

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

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



223.

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

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



224.

Lawrence v. Texas, 539 U.S. 558 (2003).

Bowers v. Hardwick, 478 U.S. 186 (1986).



225.

Crawford v. Washington, 541U.S. 36 (2004).

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

                                                                    Page
Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 
 1995)................................................................38
Aetna Health Inc. v. Davila, 542 U.S. 200 (2004)..................7, 111
Agins v. City of Tiburon, 447 U.S. 255 (1980).....................68, 69
Alaska Packers Ass'n. v. Industrial Accident Comm'n, 294 U.S. 532 
 (1935)...........................................................29, 30
Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) 
                                                                      33
Allen v. Alleghany Co., 196 U.S. 458 (1905)...........................30
Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).......................30
Almendarez-Torres v. United States, 523 U.S. 224 (1998)...............72
American Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003).........18, 20, 21
American Trucking Ass'ns v. Michigan Pub. Serv. Comm'n, 125 S. Ct. 
 2419 (2005)...........................................................6
Apprendi v. New Jersey, 530 U.S. 466 (2000).......................72, 82
Arizona v. Fulminante, 499 U.S. 279 (1991)............................76
Arkansas Department of Health and Human Services v. Ahlborn, 126 
 S. Ct. 1752 (2006)..................................................111
Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 
 (1998)...............................................................52
Arlington Central School Dist. Bd. of Educ. v. Murphy, 126 S. Ct. 
 2455 (2006)...........................................................3
Arnett v. Kennedy, 416 U.S. 134 (1974)................................37
Ashcroft v. ACLU, 542 U.S. 656 (2004).................................50
Atkins v. Virginia, 536 U.S. 304 (2002)...................80-82, 97, 112
Ayotte v. Planned Parenthood of Northern New England, 126 S. Ct. 
 961 (2006)...........................................................87
Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984)......................6
Baker v. General Motors Corp., 522 U.S. 222 (1998)....................29
Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900)..............30
Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839)................29
Banks v. Dretke, 540 U.S. 668 (2004)..................................95
Barclays Bank v. Franchise Tax Bd., 512 U.S. 298 (1994)................7
Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005).....................7
Batson v. Kentucky, 476 U.S. 79 (1986)...........................99, 100
Beard v. Banks, 126 S. Ct. 2572 (2006)................................46
Bell v. Cone, 543 U.S. 447 (2005).....................................79
Beneficial Nat'l Bank v. Anderson, 539 U.S. 1 (2003).................110
Berman v. Parker, 348 U.S. 26 (1954)..................................67
Bigelow v. Virginia, 421 U.S. 809 (1975)..............................37
Blackledge v. Allison, 431 U.S. 63 (1977).............................98
Blakely v. Washington, 542 U.S. 296 (2004)...................73, 74, 109
Bloomer v. McQuewan, 55 U.S. (14 How.) 539 (1852)......................9
Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864)................9
BMW v. Gore, 517 U.S. 599 (1996)......................................93
Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569 (1987).......37
Board of Education v. Earls, 536 U.S. 822 (2002)......................59
Board of Trustees v. Fox, 492 U.S. 469 (1989).........................38
Board of Trustees v. Garrett, 531 U.S. 356......................104, 105
Bonaparte v. Tax Court, 104 U.S. 592 (1882)...........................29
Bond v. Hume, 243 U.S. 15 (1917)......................................29
Bousley v. United States, 523 U.S. 614 (1998).........................83
Bowers v. Hardwick, 478 U.S. 186 (1986).......................87-90, 112
Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. 465 (1888)..........5
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)................40, 49
Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) 
                                                                  16, 25
Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932)....................29
Bradshaw v. Stumpf, 125 S. Ct. 2398 (2005)........................94, 98
Brady v. Maryland, 373 U.S. 83 (1963).................................95
Branzburg v. Hayes, 408 U.S. 665 (1972)...............................44
Breard v. Greene, 523 U.S. 371, 375 (1998)............................17
Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006)..................55
Broadrick v. Oklahoma, 413 U.S. 601 (1973)........................21, 37
Brosseau v. Haugen, 543 U.S. 194 (2004)...............................60
Brown v. Illinois, 422 U.S. 590 (1975)................................65
Brown v. Legal Found. of Washington, 538 U.S. 216 (2003)..........67, 68
Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827)......................5
Brown v. Sanders, 126 S, Ct, 884 (2006)...............................79
Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 
 U.S. 573 (1986).......................................................6
Buckley v. Valeo, 424 U.S. 1 (1976)...........................38, 42, 44
Bunkley v. Florida, 538 U.S. 835 (2003)...............................95
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798)...........................12
California Democratic Party v. Jones, 530 U.S. 567 (2000).............40
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998)............85
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)...............10
Caplin & Drysdale v. United States, 491 U.S. 617 (1989)...............26
Carey v. Population Services International, 431 U.S. 678 (1977)......88, 
                                                                  90, 91
Carroll v. Lanza, 349 U.S. 408 (1955).................................30
Central Virginia Community College v. Katz, 126 S. Ct. 990 (2006) 
                                                                      85
Chavez v. Martinez, 538 U.S. 760 (2003)...........................64, 87
Cheney v. United States District Court, 542 U.S. 367 (2004)...........22
Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615 (1887)........29
Chinese Exclusion Case, 130 U.S. 581 (1889)...........................19
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 
 (1993)...............................................................35
Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003)....................5
City of Boerne v. Flores, 521 U.S. 507 (1997).........................35
City of Cuyahoga Falls v. Buckeye Community Hope Found., 538 U.S. 
 188 (2003)...........................................................99
City of Houston v. Hill, 482 U.S. 451 (1987)..........................37
City of Indianapolis v. Edmond, 531 U.S. 32 (2000)....................57
City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) 
                                                                      36
City of Los Angeles v. David, 538 U.S. 715 (2003).....................93
City of San Diego v. Roe, 543 U.S. 77 (2004)..........................40
Civil Serv. Corp. v. National Ass'n of Letter Carriers, 413 U.S. 
 548 (1973)...........................................................21
Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917)...........6
Clark v. Allen, 331 U.S. 503 (1947)...................................19
Clark v. Arizona, 126 S. Ct. 2709 (2006)..............................96
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) 
                                                                      38
Clemons v. Mississippi, 494 U.S. 738 (1990)...........................73
Clingman v. Beaver, 544 U.S. 581 (2005)...............................40
Clinton v. Jones, 520 U.S. 681 (1997).................................22
Coker v. Georgia, 433 U.S. 584 (1977).................................82
Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) 
                                                                      92
Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) 
                                                                      34
Craig v. Boren, 429 U.S. 190 (1976)..................................104
Crawford v. Washington, 541 U.S. 36 (2004).......................75, 112
Crosby v. National Foreign Trade Council, 530 U.S. 363 (1999).........20
Cutter v. Wilkinson, 544 U.S. 709 (2005)..........................34, 35
Cuyler v. Sullivan, 446 U.S. 335 (1980)...............................77
DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854 (2006).................26
Dames & Moore v. Regan, 453 U.S. 654 (1981)...........................18
Davis v. Bandemer, 478 U.S. 109 (1986)...............................102
Davis v. Washington, 126 S. Ct. 2266 (2006)...................75, 76, 80
Deck v. Missouri, 544 U.S. 622 (2005).................................94
Demore v. Kim, 538 U.S. 510 (2003)................................65, 66
Devenpeck v. Alford, 543 U.S. 146 (2004)..............................55
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 
 (1983)...............................................................27
Dixon v. United States, 126 S. Ct. 2437 (2006)........................95
Dobbert v. Florida, 432 U.S. 282 (1977)...............................13
Dolan v. City of Tigard, 512 U.S. 374 (1994)..........................69
Doran v. Salem Inn, 422 U.S. 922 (1975)...............................37
Doremus v. Board of Education, 342 U.S. 429 (1952)....................26
Dunaway v. New York, 442 U.S. 200 (1979)..............................65
Duro v. Reina, 495 U.S. 676 (1990).....................................8
Edenfield v. Fane, 507 U.S. 761 (1993)................................38
Eisenstadt v. Baird, 405 U.S. 438 (1972)..............................88
Eldred v. Ashcroft, 537 U.S. 186 (2003).............................8, 9
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).........33, 35
England v. Louisiana Bd. of Medical Examiners, 375 U.S. 411 (1964)
                                                                      70
Enmund v. Florida, 458 U.S. 782 (1982)................................82
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)................37
Eunson v. Dodge, 85 U.S. (18 Wall.) 414 (1873).........................9
Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815)........................9, 10
Ewing v. California, 538 U.S. 11 (2003)...........................83, 84
Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 
 (2005)...............................................................27
Faretta v. California, 422 U.S. 806 (1975)...........................105
Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975)........................45
FEC v. Beaumont, 539 U.S. 146 (2003)..................................42
Federal Election Commission v. Massachusetts Citizens for Life, 
 Inc., 479 U.S. 238 (1986)............................................42
Federal Election Comm'n v. National Right to Work, 459 U.S. 197 
 (1982)...............................................................42
Fellers v. United States, 540 U.S. 519 (2004).........................78
Finch v. United States, 433 U.S. 676 (1977)...........................63
Fiore v. White, 528 U.S. 23 (1999)....................................95
Fitzgerald v. Racing Ass'n of Central Iowa, 539 U.S. 103 (2003).......99
Flast v. Cohen, 392 U.S. 83 (1968)....................................26
Florida v. Bostick, 501 U.S. 429 (1991)...............................57
Florida v. Nixon, 543 U.S. 175 (2004).................................77
Fong Foo v. United States, 369 U.S. 141 (1962)........................63
Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 
 (1945)..............................................................112
Ford v. Wainwright, 477 U.S. 399 (1986).......................71, 80, 97
Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488 (2003)...........29, 30
Freedman v. Maryland, 380 U.S. 51 (1965)..............................36
Frey v. Hawkins, 540 U.S. 431 (2004)..................................86
Frisby v. Schultz, 487 U.S. 474 (1988)................................37
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)...................36
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006)..........................41
Georgia v. Randolph, 126 S. Ct. 1515 (2006)...........................58
Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410 (1979)........41
Glenn v. Garth, 147 U.S. 360 (1893)...................................30
Gonzales v. Raich, 125 S. Ct. 2195 (2005)......................3, 4, 111
Graham v. John Deere Co., 383 U.S. 1 (1966)............................8
Granholm v. Heald, 543 U.S. 220 (2005)............................6, 109
Gratz v. Bollinger, 539 U.S. 244 (2003).........................100, 101
Griswold v. Connecticut, 381 U.S. 479 (1965)......................88, 90
Groh v. Ramirez, 540 U.S. 551 (2004)..................................56
Grutter v. Bollinger, 539 U.S. 306 (2003).......................100, 101
Halbert v. Michigan, 125 S. Ct. 2582 (2005)..........................110
Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)....................10, 15, 23
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)............................15, 66
Harmelin v. Michigan, 501 U.S. 957 (1991).........................83, 84
Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 
 (1985)...............................................................10
Harris v. United States, 536 U.S. 545 (2002)..........................72
Harrison v. United States, 392 U.S. 219 (1968)........................65
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984)..................67
Hawke v. Smith, 253 U.S. 221 (1920)....................................2
Healy v. The Beer Institute, 491 U.S. 324 (1989).......................6
Herrera v. Collins, 506 U.S. 390 (1993)...........................27, 83
Hiibel v. Sixth Judicial Dist. Ct., 124 S. Ct. 2451 (2004)............57
Hildwin v. Florida, 490 U.S. 638 (1989)...............................73
Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003)..................6, 30
Hines v. Davidowitz, 312 U.S. 52 (1941)...............................19
Holden v. Minnesota, 137 U.S. 483 (1890)..............................13
Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798).............2, 31
Holmes v. Hurst, 174 U.S. 82 (1899)....................................9
Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840)......................18
Holmes v. South Carolina, 126 S. Ct. 1727 (2006)......................94
House v. Bell, 126 S. Ct. 2064 (2006).............................27, 83
Hudson v. Michigan, 126 S. Ct. 2159 (2006)............................60
Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557 (1995) 
                                                                      39
Idaho v. Wright, 497 U.S. 805 (1990)..................................75
Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 
 600 (2003).......................................................39, 52
Illinois v. Allen, 397 U.S. 337 (1970)................................94
Illinois v. Caballes, 543 U.S. 405 (2005).........................57, 58
Illinois v. Fisher, 540 U.S. 544 (2004)...............................95
Illinois v. Gates, 462 U.S. 213 (1983)................................55
Illinois v. Lidster, 540 U.S. 419 (2004)..............................57
Illinois v. Rodriguez, 497 U.S. 177 (1990)............................58
In re Rahrer, 140 U.S. 545 (1891)......................................6
In re Young, 141 F.3d 854 (8th Cir.)..................................35
In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. 
 Cir. 2006).......................................................44, 45
INS v. Chadha, 462 U.S. 919 (1983).................................2, 31
INS v. St. Cyr, 533 U.S. 289 (2001)...................................25
Iowa v. Tovar, 541 U.S. 77 (2004).....................................76
Jinks v. Richland County, 538 U.S. 456 (2003).........................11
Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005).............39
Johnson v. California, 543 U.S. 499 (2005)........................98, 99
Johnson v. Eisentrager, 339 U.S. 763 (1950)...........................16
Johnson v. New York Life Ins. Co., 187 U.S. 491 (1903)................30
Jones v. Barnes, 463 U.S. 745 (1983)..................................77
Jones v. Flowers, 126 S. Ct. 1708 (2006)..........................91, 93
Kane v. Garcia Espitia, 126 S. Ct. 407 (2005).........................78
Kansas v. Marsh, 126 S. Ct. 2516 (2006)...............................79
Kaupp v. Texas, 538 U.S. 626 (2003)...................................55
Kelo v. City of New London, 125 S. Ct. 2655 (2005)....................67
Kidd v. Pearson, 128 U.S. 1 (1888).....................................5
Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001).....................35
Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)..................104
Kirk v. Louisiana, 536 U.S. 635 (2002)................................55
Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)..........................17
Kowalski v. Tesmer, 543 U.S. 123 (2004)...............................26
Kryger v. Wilson, 242 U.S. 171 (1916).................................29
Kyles v. Whitley, 514 U.S. 419 (1995).................................95
Lapides v. Board of Regents, 535 U.S. 613 (2002).....................112
Lawrence v. Texas, 539 U.S. 558 (2003)..........87, 88, 90, 91, 109, 112
League of United Latin American Citizens v. Perry, 126 S. Ct. 2594 
 (2006)......................................................1, 103, 111
Lee v. Illinois, 476 U.S. 530 (1986)..................................74
Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001)..........47
Leisy v. Hardin, 135 U.S. 100 (1890)...................................6
Lindsey v. Washington, 301 U.S. 397 (1937)............................13
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)................68, 69
Lloyd v. Matthews, 155 U.S. 222 (1894)................................30
Locke v. Davy, 540 U.S. 712 (2004)....................................34
Lockyer v. Andrade, 538 U.S. 63 (2003)................................84
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) 
                                                                      68
Lozada v. Deeds, 498 U.S. 430 (1991)..................................77
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).........69
Mallory v. United States, 354 U.S. 449 (1957).........................65
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).........................17
Maryland v. Pringle, 540 U.S. 366 (2003)..........................56, 58
Massachusetts v. Mellon, 262 U.S. 447 (1923)..........................26
Massiah v. United States, 377 U.S. 201 (1964).........................78
Matter of Farber, 394 A.2d 330 (N.J. 1978)............................45
McConnell v. Federal Election Commission, 540 U.S. 93 (2003)......42-44, 
                                                                     107
McCreary County v. ACLU of Kentucky, 125 S. Ct. 2722 (2005)...........33
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)..................10
McDaniel v. Paty, 435 U.S. 618 (1978).................................35
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)............39
McMillan v. Pennsylvania, 477 U.S. 79 (1986)..........................72
McNabb v. United States, 318 U.S. 332 (1943)..........................65
Medley, Petitioner, 134 U.S. 160 (1890)...............................13
Meese v. Keene, 481 U.S. 465 (1987)...................................40
Metro-Goldwin-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 
 (2005)...............................................................10
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)..........39
Michigan v. Tucker, 417 U.S. 433 (1974)...............................65
Middleton v. McNeil, 541 U.S. 43 (2004)...............................94
Miller-El v. Dretke, 125 S. Ct. 2317 (2005)..........................100
Miranda v. Arizona, 384 U.S. 436 (1966)...........................64, 65
Missouri v. Seibert, 542 U.S. 600 (2004)..............................64
Mt. Healthy City Bd. of Educ. v. Doyle, U.S. 274 (1977)..............105
Muehler v. Mena, 544 U.S. 93 (2005)...................................56
Mugler v. Kansas, 123 U.S. 623 (1887)..................................5
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)........36
National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 
 1999)................................................................20
National Mut. B. & L. Ass'n v. Brahan, 193 U.S. 635 (1904)............30
Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721 (2003)..........104
Nevada v. Hall, 440 U.S. 410 (1979)...................................30
New York Times v. Jascalevich, 439 U.S. 1301 (1978)...................45
New York v. Belton, 453 U.S. 454 (1981)...............................58
New York v. Ferber, 458 U.S. 747 (1982)...............................37
Nike, Inc. v. Kasky, 45 P.3d 243 (Cal. 2002)..........................49
Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)..........38
Nollan v. California Coastal Commission, 483 U.S. 825 (1987)......68, 69
Northern Insurance Company of New York v. Chatham County, 126 S. 
 Ct. 1689 (2006)......................................................85
Ohio v. Roberts, 448 U.S. 56 (1980)..........................74, 75, 112
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)................8
Oregon v. Elstad, 470 U.S. 298 (1985).................................64
Oregon v. Guzik, 126 S. Ct. 1226 (2006)...............................80
Overton v. Bazzetta, 539 U.S. 126 (2003)..................45, 47, 84, 98
O'Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003)............35
Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 
 493 (1939)...........................................................30
Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1 
 (1986)...............................................................39
Palazzolo v. Rhode Island, 533 U.S. 606 (2001)........................69
Parke v. Raley, 506 U.S. 20 (1992)....................................72
Parker v. Levy, 417 U.S. 733 (1974)...................................37
Paul v. Davis, 424 U.S. 693 (1976)................................90, 92
Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)....68, 69
Pennell v. City of San Jose, 485 U.S. 1 (1988)........................68
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 
 (1984)...............................................................86
Pennsylvania Fire Ins. Co. v. Gold Issue Mining Co. 243 U.S. 93 
 (1917)...............................................................30
Penry v. Lynaugh, 492 U.S. 302 (1989)............................82, 112
Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 
 644 (2003)............................................................7
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).................30
Pierce County v. Guillen, 537 U.S. 129 (2003)..........................4
Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702 (D. 
 Del. 1998)...........................................................38
Procunier v. Martinez, 416 U.S. 396 (1974)............................46
Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834 (6th Cir. 
 2000)................................................................52
Queen v. Oxford, 173 Eng. Rep. 941 (1840).............................96
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).......................49
Randall v. Sorrell, 126 S. Ct. 2479 (2006).......................44, 110
Rasul v. Bush, 542 U.S. 466 (2004)................................16, 25
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978) 
                                                                100, 101
Reno v. ACLU, 521 U.S. 844 (1997).............................36, 37, 52
Rhodes v. Iowa, 170 U.S. 412 (1898)....................................6
Rice v. Collins, 126 S. Ct. 969 (2006)................................99
Riley v. National Fed'n of the Blind of North Carolina, 487 U.S. 
 781 (1988)...........................................................39
Ring v. Arizona, 536 U.S. 584 (2002).....................72, 73, 83, 112
Roe v. Wade, 410 U.S. 113 (1973)..................................88, 91
Rompilla v. Beard, 125 S. Ct. 2456 (2005).............................77
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).....................27
Roper v. Simmons, 543 U.S. 551 (2005)............................81, 110
Rosato v. Superior Court, 124 Cal. Rptr. 427 (1975)...................45
Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 
 S. Ct. 1297 (2006)...............................................40, 48
Rumsfeld v. Padilla, 542 U.S. 426 (2004)..........................16, 25
Rust v. Sullivan, 500 U.S. 173 (1991).................................47
Sable Communications of California v. FCC, 492 U.S. 115 (1989)........37
Sabri v. United States, 541 U.S. 600 (2004).....................2, 3, 11
Saffle v. Parks, 494 U.S. 484 (1990)..................................83
Samson v. California, 126 S. Ct. 2193 (2006)..........................59
San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973)..............91
San Remo Hotel, L.P. v. City and County of San Francisco, 125 S. 
 Ct. 2491 (2005)......................................................70
Sanabria v. United States, 437 U.S. 54 (1978).....................63, 64
Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)......................17
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003)........................63
Sawyer v. Smith, 497 U.S. 227 (1990)..................................83
Schlup v. Delo, 513 U.S. 298 (1995)...................................83
Schriro v. Summerlin, 542 U.S. 348 (2004).................27, 80, 83, 97
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).......................29
Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 
 947 (1984)...........................................................37
Sell v. United States, 539 U.S. 166 (2003)............................97
Sherbert v. Verner, 374 U.S. 398 (1963)...............................35
Smalis v. Pennsylvania, 476 U.S. 140 (1986)...........................64
Smith v. Doe, 538 U.S. 84 (2003)..................................11, 12
Smith v. Massachusetts, 543 U.S. 462 (2005).......................63, 64
Smithsonian Institution v. St. John, 214 U.S. 19 (1909)...............29
Snyder v. Massachusetts, 291 U.S. 97 (1934)...........................74
Solem v. Helm, 463 U.S. 277 (1983)....................................84
Sony Corp. of America v. Universal City Studios, 464 U.S. 417 
 (1984)................................................................8
South Carolina v. Katzenbach, 383 U.S. 301 (1966)....................105
Spaziano v. Florida, 468 U.S. 447 (1984)..............................73
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002)........................7
Stanford v. Kentucky, 492 U.S. 361 (1989).........................81, 82
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).......93
State v. Jones, 50 N.H. 369 (1871)....................................96
Stogner v. California, 539 U.S. 607 (2003).......................12, 109
Stone v. Graham, 449 U.S. 39, 41 (1980)...............................33
Strickland v. Washington, 466 U.S. at 668 (1984)......................77
Strickler v. Greene, 527 U.S. 263 (1999)..............................95
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning 
 Agency, 535 U.S. 302 (2002)......................................68, 69
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) 
                                                                      40
Taylor v. Alabama, 457 U.S. 687 (1982)................................65
Teague v. Lane, 489 U.S. 288 (1989)...................................82
Tenet v. Doe, 544 U.S. 1 (2005).......................................22
Tennard v. Dretke, 542 U.S. 274 (2004)................................80
Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004).......85
Tennessee v. Lane, 541 U.S. 509 (2004)...............................104
Terry v. Ohio, 392 U.S. 1 (1968)......................................57
Texas & N.O.R.R. v. Miller, 221 U.S. 408 (1911).......................30
Thompson v. Oklahoma, 487 U.S. 815 (1988).............................82
Thompson v. Western States Medical Center, 535 U.S. 357 (2002)....37, 38
Thornburgh v. Abbott, 490 U.S. 401 (1989).............................46
Thornton v. United States, 541 U.S. 615 (2004)........................58
Totten v. United States, 92 U.S. 105 (1875)...........................22
Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005)...............92
Trop v. Dulles, 356 U.S. 86 (1958)....................................82
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994)................38
Turner v. Safley, 482 U.S. 78 (1987)...........................45-47, 98
United Public Workers v. Mitchell, 330 U.S. 75 (1947).................21
United States v. Georgia, 125 S. Ct. 877 (2006)......................105
United States v. American Library Association, Inc., 539 U.S. 194 
 (2003)............................................47, 48, 50-52, 55, 56
United States v. Arvizu, 534 U.S. 266 (2002)......................57, 58
United States v. Banks, 540 U.S. 31 (2003)............................56
United States v. Belmont, 301 U.S. 324 (1937).........................18
United States v. Booker, 543 U.S. 220 (2005).....................73, 107
United States v. Cronic, 466 U.S. 648 (1984)..........................77
United States v. Di Re, 332 U.S. 581 (1948)...........................56
United States v. Drayton, 536 U.S. 194 (2002).....................57, 58
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)...........38
United States v. Flores-Montano, 541 U.S. 49 (2004)...................57
United States v. Gonzalez-Lopez, 126 S. Ct. 2557 (2006)...............76
United States v. Inadi, 475 U.S. 387 (1986)...........................74
United States v. Knights, 534 U.S. 112 (2005).........................59
United States v. Lara, 541 U.S. 193 (2004).........................8, 63
United States v. Lopez, 514 U.S. 549 (1995).........................4, 5
United States v. Martin Linen Supply Co., 430 U.S. 564 (1977).....63, 64
United States v. Matlock, 415 U.S. 164 (1974).........................58
United States v. Morrison, 529 U.S. 598 (2000).........................4
United States v. National Treasury Employees Union, 513 U.S. 454 
 (1995)...............................................................41
United States v. Nixon, 418 U.S. 683 (1974)...........................22
United States v. One Bag of Paradise Feathers, 256 F. 301 (2d Cir. 
 1919)................................................................17
United States v. O'Brien, 391 U.S. 367 (1968).........................48
United States v. Patane, 542 U.S. 630 (2004)..........................65
United States v. Pink, 315 U.S. 203 (1942)........................18, 19
United States v. Reynolds, 345 U.S. 1 (1953)..........................22
United States v. Scott, 437 U.S. 82 (1978)............................64
United States v. Virginia, 518 U.S. 515 (1996).......................104
Van Orden v. Perry, 125 S. Ct. 2854 (2005)............................33
Vernonia School Dist. 47j v. Acton, 515 U.S. 646 (1995)...........59, 60
Vieth v. Jubelirer, 541 U.S. 267 (2004).......................1, 27, 102
Village of Schaumburg v. Citizens for a Better Environment, 444 
 U.S. 620 (1980)......................................................37
Virginia v. Black, 538 U.S. 343 (2003)...........................49, 109
Virginia v. Hicks, 539 U.S. 113 (2003)................................37
Walton v. Arizona, 497 U.S. 639 (1990).......................73, 79, 112
Walz v. Tax Comm'n, 397 U.S. 664 (1970)...............................34
Ward v. Rock Against Racism, 491 U.S. 781 (1989)......................37
Washington v. Harper, 494 U.S. 210 (1990).............................97
Webster v. Doe, 486 U.S. 592 (1988)...................................22
West Virginia State Board of Education v. Barnette, 319 U.S. 624 
 (1943)...............................................................49
Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914).......30, 81, 82
Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834).........................9
White v. Illinois, 502 U.S. 346 (1992)................................75
Wickard v. Filburn, 317 U.S. 111 (1942)................................4
Wiggins v. Smith, 539 U.S. 510 (2003).................................77
Wilkinson v. Austin, 125 S. Ct. 2384 (2005).......................92, 98
Williamson County Regional Planning Commission v. Hamilton Bank, 
 473 U.S. 172 (1985)..................................................70
Wilson v. Arkansas, 514 U.S. 927 (1995)...............................60
Woodford v. Visciotti, 537 U.S. 19 (2002).............................77
Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869).......................5
Wooley v. Maynard, 430 U.S. 705 (1977)................................49
Yarborough v. Alvarado, 541 U.S. 652 (2004)...........................64
Ybarra v. Illinois, 444 U.S. 85 (1979)................................56
Youngblood v. West Virginia, 126 S. Ct. 2188 (2006)...................95
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)............15
Zablocki v. Redhail, 434 U.S. 374 (1978)..............................91
Zadvydas v. Davis, 533 U.S. 678 (2001)................................65
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).......40
Zschernig v. Miller, 389 U.S. 429 (1968)...........................19-21
                                  INDEX

                                                                    Page
Affirmative action
  college admissions............................................100, 101
  Alcohol prohibition..................................................6
Aliens
  deportation, due process protections................................65
  exclusion of........................................................65
Arrest
  arrestee's right to be told reason for..............................55
  custody, what constitutes...........................................64
Association, freedom of
  blanket primaries...................................................40
  Authorization for Use of Military Force.........................15, 66
Bipartisan Campaign Reform Act of 2002
  constitutionality...................................................43
Bribery
  of state and local officials, Congress' power to prohibit............2
Campaign finance regulation
  First Amendment validity........................................42, 43
Capital punishment
  aggravating factors.........................................27, 77, 79
  evidence of low intelligence........................................80
  evidence, introduction of new...................................80, 83
  habeas corpus limits on challenges..............................80, 82
  juveniles, execution of.............................................80
  mental retardation..................................................97
  of innocent persons.................................................27
Children's Internet Protection Act
  constitutionality...............................................47, 50
Commerce
  foreign commerce, preemption of state regulation.....................7
  original package doctrine............................................5
  with Indian tribes...................................................8
Confession
  fruits of...........................................................65
Confrontation Clause
  reliability test....................................................74
  testimonial evidence, opportunity to cross-examine..................75
  testimonial evidence, what constitutes..............................75
Congress
  commerce power.......................................................3
  Fourteenth Amendment enforcement powers.......................104, 105
  spending power.......................................................2
Consent decrees
  state's sovereign immunity claim....................................86
Copyrights and patents
  Copyright Term Extension Act.........................................8
  Copyrights and patents............................................8, 9
Counsel, assistance of
  waiver of right.....................................................76
Cruel and unusual punishment
  proportionality, three-strikes law..................................83
Double jeopardy
  after acquittal by judge............................................63
  dual sovereign rule, tribal and Federal prosecutions................63
Due process, procedural
  burden of proof.................................................95, 96
  delay in processing fines...........................................93
  enemy combatants, right to hearing on status........................66
  insanity, evidence..................................................96
  notice requirement..............................................91, 93
  sex offenders, Internet posting.....................................92
Due process, substantive
  compelled medication................................................97
  compensable violation...........................................87, 92
  liberty, autonomy interests, sexual privacy......................88-91
  liberty, reputation.................................................92
  punitive damages....................................................93
  unwanted antipsychotic drugs........................................97
Education
  college admissions, affirmative action........................100, 101
Eleventh Amendment
  validity of..........................................................2
Enemy combatants
  detention, rights to hearing on status..........................15, 66
Equal Protection
  affirmative action, college admissions.............................100
  burden of proof.....................................................99
  prison restrictions.................................................98
  state action........................................................99
  taxation............................................................99
Establishment Clause
  Ten Commandments....................................................33
  Ex post facto laws..................................................12
  Megan's law not ex post facto.......................................11
  revival of action after limitations period has run..................12
Executive agreements
  status as law of land...............................................17
Executive privilege
  Vice-presidential task force........................................22
Fair trial
  burden of proof.....................................................95
  physical restraints, use of in front of jury........................94
  prosecutorial misconduct........................................94, 95
  suppression of evidence.............................................95
  Foreign relations...................................................18
  preemptive scope of federal power...................................18
Free Exercise of Religion
  Refusal to fund religion............................................34
  Religious Land Use and Institutionalized Persons Act............34, 35
Freedom of Speech
  overbreadth.........................................................36
Full faith and credit
  application to laws versus judgments................................29
  conflict of laws....................................................30
  taking of property claim............................................70
Gerrymandering
  partisan gerrymandering.........................................1, 103
  partisan, justiciability....................................1, 27, 102
Guantanamo detainees
  federal court jurisdiction..........................................16
  Habeas corpus.......................................................25
  federal court jurisdiction, prisoners at Guantanamo Bay.........16, 25
  jurisdiction, location of prisoner's custodian......................25
  Hatch Act...........................................................21
Highway checkpoints
  soliciting aid in crime solving.....................................57
  Holocaust Victim Insurance Relief Act...............................18
Homosexual conduct
  prohibition, denial of due process..................................87
  Individuals with Disabilities Education Act..........................3
Insanity defense
  tests of insanity...................................................96
  International Court of Justice......................................17
Internet usage
  in public libraries, constitutionality of restrictions..............51
Jury trial, right to
  capital sentencing, factual findings................................73
  enhanced sentencing, factual basis..................................72
  sentencing factor, proof of.........................................71
Libraries
  restrictions on Internet access, constitutionality..................51
Marijuana
  use for medical purposes.............................................4
Megan's Law
  constitutionality, Ex Post Facto Clause.............................11
  Military commissions................................................10
Native Americans
  tribal courts, dual sovereignty, double jeopardy....................63
  tribal sovereignty...................................................8
  Necessary and Proper Clause......................................5, 10
  legislation protecting spending power...............................11
  Orders, Resolutions, and Votes Clause................................1
  Overruled decisions................................................112
Pledge of Allegiance
  dismissal of challenge for lack of standing.........................33
  Preemption..........................................................20
  foreign relations, state laws impinging on federal powers........18-20
  state laws conflicting with executive agreements................18, 20
President
  foreign relations powers, executive agreements..................17, 18
  power to detain enemy combatants....................................15
Prisons
  discrimination, racial..............................................98
  speech restrictions.................................................46
  visitation rules............................................45, 84, 98
Privacy
  abortion............................................................88
  sexual autonomy, homosexual conduct.........................87, 89, 90
Punitive damages
  excessive, due process violation....................................93
  ratio to compensatory damages, due process..........................93
Racial discrimination
  burden of proof.....................................................99
Religion
  theology students, exclusion from scholarship.......................35
  Rooker-Feldman doctrine.............................................27
Search and seizure
  anticipatory warrant................................................55
  drug testing in schools.............................................59
  highway checkpoint..................................................57
  knock-and-announce procedure........................................60
  objection by co-occupant............................................58
  particularity requirement, warrants.................................56
  Terry stop, identity request........................................57
  use of reasonable force.............................................56
  warrant, particularity requirement..................................56
  warrantless entry...................................................55
Self-incrimination
  Miranda warning, two-step questioning...............................64
  Self-representation.................................................78
  Sentencing Guidelines, federal......................................73
  September 11, 2001 attack...........................................15
Speech
  ``adult'' business..................................................36
  campaign finance restrictions.......................................42
  Censorship of Internet..............................................50
  charitable solicitors...............................................52
  Child Online Protection Act.........................................50
  Children's Internet Protection Act..............................47, 50
  commercial speech...................................................49
  compelled speech................................................39, 48
  cross burning prohibition...........................................49
  government employees................................................40
  harm caused by, not merely conjectural..............................38
  indecent material, evidence of harm.................................38
  Internet restrictions, libraries and schools................47, 50, 51
  journalists' privilege..............................................45
  narrow tailoring requirement........................................37
  overbreadth doctrine................................................36
  prison restrictions.................................................46
  public forum doctrine, Internet.....................................51
  unconstitutional conditions.........................................47
  vagueness...........................................................36
Spending power
  prohibition on bribing state and local officials.....................2
Standing to sue
  taxpayer standing...................................................26
States
  immunity from suit in federal courts................................85
  Supremacy Clause....................................................20
  executive agreements as preempting conflicting state laws...........17
Taking of property
  exhaustion of state remedies........................................70
  just compensation...................................................68
  public use..........................................................67
  regulatory..........................................................68
Three-strikes law
  not cruel and unusual punishment....................................83
Treaties
  determining their meaning...........................................16
Unconstitutional conditions
  not imposed by Children's Internet Protection Act...............47, 51
  Webb-Kenyon Act......................................................5
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