[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
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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).
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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\
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\6\ Sabri v. United States, 541 U.S. 600, 605
(2004).
\7\ 541 U.S. at 606.
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--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\
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\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\
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\9\ United States v. Lopez, 514 U.S. 549, 558-59
(1995) (citations omitted). Illustrative of the power to
legislate to protect the channels and instrumentalities of
interstate commerce is Pierce County v. Guillen, 537 U.S.
129, 147 (2003), in which the Court upheld a prohibition on
the use in state or federal court proceedings of highway
data required to be collected by states on the basis that
``Congress could reasonably believe that adopting a measure
eliminating an unforeseen side effect of the information-
gathering requirement . . . would result in more diligent
efforts [by states] to collect the relevant information.''
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[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.
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\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.
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\12\ 125 S. Ct. at 2206-09.
\13\ 125 S. Ct. at 2211, quoting Webster's Third New
International Dictionary 720 (1966).
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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\
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\14\ 125 S. Ct. at 2206, 2210, 2211
\15\ 125 S. Ct. at 2206-09.
\16\ 125 S. Ct. at 2216 (Scalia, J., concurring).
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[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.
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\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).
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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.
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[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\
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\25\ Reliance could not be placed on Executive
statements, the Court explained, since ``the Constitution
expressly grants Congress, not the President, the power to
`regulate Commerce with foreign Nations.'' 512 U.S. at 329.
``Executive Branch communications that express federal
policy but lack the force of law cannot render
unconstitutional California's otherwise valid,
congressionally condoned, use of worldwide combined
reporting.'' Id. at 330. Dissenting Justice Scalia noted
that, although the Court's ruling correctly restored
preemptive power to Congress, ``it permits the authority to
be exercised by silence.'' Id. at 332.
\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\
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\27\ Graham v. John Deere Co., 383 U.S. 1, 5, 9
(1966).
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[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).
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[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\
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\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.
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\39\ 17 U.S. (4 Wheat.) 316 (1819).
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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\
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\40\ Jinks v. Richland County, 538 U.S. 456 (2003).
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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\
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\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