CONSTITUTIONAL LAW - [CONNECTED EBOOK WITH STUDY CENTER] - 6.ª ED. 2019

Dedication
Summary of Contents
Contents
Preface
Acknowledgments
The Constitution of the United States
Chapter 1. The Federal Judicial Power
A. The Authority for Judicial Review
Marbury v. Madison
Notes on Marbury v. Madison
Authority for Judicial Review of State Judgments
Martin v. Hunter’s Lessee
Cohens v. Virginia
B. Limits on the Federal Judicial Power
1. Interpretive Limits
How Should the Constitution Be Interpreted? The Second Amendment as an Example
District of Columbia v. Heller
2. Congressional Limits
The Exceptions and Regulations Clause
Ex Parte McCardle
Separation of Powers as a Limit on Congress’s Authority
United States v. Klein
Notes on United States v. Klein
Robertson v. Seattle Audubon Society
Bank Markazi v. Peterson
3. Justiciability Limits
a. Prohibition of Advisory Opinions
Opinion of the Justices
Hayburn’s Case
Plaut v. Spendthrift Farm, Inc.
Notes on Advisory Opinions
Nashville, C. & St. L. Ry. v. Wallace
b. Standing
i. Constitutional Standing Requirements
Allen v. Wright
Massachusetts v. Environmental Protection Agency
Notes on Constitutional Standing Requirements: Injury, Causation, and Redressability
City of Los Angeles v. Lyons
Lujan v. Defenders of Wildlife
Clapper v. Amnesty International USA
Linda R. S. v. Richard D.
Warth v. Seldin
Simon v. Eastern Kentucky Welfare Rights Organization
Duke Power Co. v. Carolina Environmental Study Group, Inc.
ii. Prudential Standing Requirements
The Prohibition of Third-Party Standing
Singleton v. Wulff
Barrows v. Jackson
Craig v. Boren
Gilmore v. Utah
The Prohibition of Generalized Grievances
United States v. Richardson
Flast v. Cohen
c. Ripeness
Poe v. Ullman
Abbott Laboratories v. Gardner
United Public Workers v. Mitchell
Regional Rail Reorganization Act Cases
Lake Carriers Assn. v. MacMullan
Susan B. Anthony List v. Driehaus
d. Mootness
Moore v. Ogilvie
Roe v. Wade
DeFunis v. Odegaard
Friends of the Earth, Inc. v. Laidlaw Environmental Services
United States Parole Commission v. Geraghty
e. The Political Question Doctrine
i. The Political Question Doctrine Defined
What Is a Political Question? The Issues of Malapportionment and Partisan Gerrymandering
Baker v. Carr
Rucho v. Common Cause
ii. The Political Question Doctrine Applied: Congressional Self-Governance
Powell v. McCormack
iii. The Political Question Doctrine Applied: Foreign Policy
Goldwater v. Carter
Zivotofsky v. Clinton
iv. The Political Question Doctrine Applied: Impeachment and Removal
Nixon v. United States
Chapter 2. The Federal Legislative Power
A. Introduction: Congress and the States
The Framework for Analysis: McCulloch v. Maryland
McCulloch v. Maryland
What Role Should Concern over Protecting States Have in Defining Congress’s Powers?
National Federation of Independent Business v. Sebelius
B. The Necessary and Proper Clause
C. The Commerce Power
1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power
Gibbons v. Ogden
2. The 1890s-1937: A Limited Federal Commerce Power
a. What Is “Commerce”?
b. What Does “Among the States” Mean?
c. Does State Sovereignty Limit Congressional Power?
3. 1937-1990s: Broad Federal Commerce Power
Key Decisions Changing the Commerce Clause Doctrine
NLRB v. Jones & Laughlin Steel Corp.
United States v. Darby
Wickard v. Filburn
The Meaning of “Commerce Among the States”
Heart of Atlanta Motel, Inc. v. United States
Katzenbach v. McClung, Sr. & McClung, Jr.
Hodel v. Indiana
Perez v. United States
The Tenth Amendment Between 1937 and the 1990s
Garcia v. San Antonio Metropolitan Transit Authority
4. 1990s-???: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress
a. What Is Congress’s Authority to Regulate “Commerce Among the States”?
United States v. Lopez
United States v. Morrison
Gonzales v. Raich
b. Does the Tenth Amendment Limit Congress’s Authority?
New York v. United States
Printz v. United States
Reno v. Condon
Murphy v. National Collegiate Athletic Association
D. The Taxing and Spending Power
For What Purposes May Congress Tax and Spend?
United States v. Butler
Chas. C. Steward Mach. Co. v. Davis
Sabri v. United States
Conditions on Grants to State Governments
South Dakota v. Dole
E. Congress’s Powers Under the Post-Civil War Amendments
1. Whom May Congress Regulate Under the Post-Civil War Amendments?
United States v. Morrison
2. What Is the Scope of Congress’s Power?
Katzenbach v. Morgan & Morgan
City of Boerne v. Flores
Shelby County, Alabama v. Holder
Chapter 3. The Federal Executive Power
A. Inherent Presidential Power
Youngstown Sheet & Tube Co. v. Sawyer
The Scope of Inherent Power: The Issue of Executive Privilege
United States v. Richard M. Nixon, President of the United States
The Authority of Congress to Increase Executive Power
B. The Constitutional Problems of the Administrative State
1. The Nondelegation Doctrine and Its Demise
A.L.A. Schechter Poultry Corp. v. United States
Panama Refining Co. v. Ryan
Gundy v. United States
2. The Legislative Veto and Its Demise
Immigration & Naturalization Service v. Jagdish Rai Chadha
3. Checking Administrative Power
The Appointment Power
Alexia Morrison, Independent Counsel v. Theodore B. Olson
NLRB v. Noel Canning
The Removal Power
The Impeachment of Andrew Johnson
Myers v. United States
Humphrey’s Executor v. United States
Wiener v. United States
Bowsher v. Synar
Morrison v. Olson
Free Enterprise Fund v. Public Company Accounting Oversight Board
C. Separation of Powers and Foreign Policy
1. Are Foreign Policy and Domestic Affairs Different?
United States v. Curtiss-Wright Export Corp.
Notes on Curtiss-Wright
Zivotofsky v. Kerry
2. Treaties and Executive Agreements
Dames & Moore v. Regan, Secretary of the Treasury
3. War Powers
50 U.S. Code Chapter 33 — War Powers Resolution
D. Presidential Power and the War on Terrorism
1. Detentions
Hamdi v. Rumsfeld
Boumediene v. Bush
2. Military Tribunals
Ex Parte Quirin
E. Presidential Power over Immigration
Trump v. Hawaii
F. Checks on the President
1. Suing and Prosecuting the PresidentRichard Nixon v. A. Ernest Fitzgerald
William Jefferson Clinton v. Paula Corbin Jones
2. Impeachment
Chapter 4. Limits on State Regulatory and Taxing Power
A. Preemption of State and Local Laws
1. Express Preemption
Lorillard Tobacco Co. v. Reilly
2. Implied Preemption
a. Conflicts Preemption
Florida Lime & Avocado Growers, Inc. v. Paul, Director, Department of Agriculture of California
b. Preemption Because State Law Impedes the Achievement of a Federal Objective
Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission
c. Preemption Because Federal Law Occupies the Field
Arizona v. United States
B. The Dormant Commerce Clause
1. Why a Dormant Commerce Clause?
Tennessee Wine and Spirits Retailers Association v. Thomas
2. The History of the Dormant Commerce Clause
Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia ex rel. Society for Relief of Distressed Pilots
3. Analyzing Whether a Law Violates the Dormant Commerce Clause
a. Determining Whether a Law Is Discriminatory
Facially Discriminatory Laws
City of Philadelphia v. New Jersey
Facially Neutral Laws
Hunt, Governor of the State of North Carolina v. Washington State Apple Advertising Commission
Exxon Corp. v. Governor of Maryland
West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food & Agriculture
State of Minnesota v. Clover Leaf Creamery Co.
b. Analysis If a Law Is Deemed Discriminatory
Dean Milk Co. v. City of Madison, Wisconsin
Maine v. Taylor & United States
c. Analysis If a Law Is Deemed Nondiscriminatory
Loren J. Pike v. Bruce Church, Inc.
Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight Lines, Inc.
Summary
d. Exceptions to the Dormant Commerce Clause
Congressional Approval
Western & Southern Life Insurance Co. v. State Board of Equalization of California
The Market Participant Exception
Reeves, Inc. v. William Stake
White v. Massachusetts Council of Construction Employers, Inc.
South-Central Timber Development, Inc. v. Commissioner, Department of Natural Resources of Alaska
C. The Privileges and Immunities Clause of Article IV, §2
1. Introduction
2. Analysis Under the Privileges and Immunities Clause
What Are the “Privileges and Immunities of Citizenship”?
Toomer v. Witsell
United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of Camden
Lester Baldwin v. Fish & Game Commission of Montana
What Justifications Are Sufficient to Permit Discrimination?
Supreme Court of New Hampshire v. Kathryn A. Piper
Chapter 5.The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
A. Introduction
B. The Application of the Bill of Rights to the States
1. The Rejection of Application Before the Civil War
Barron v. Mayor & City Council of Baltimore
2. A False Start in Applying the Bill of Rights to the States: The Privileges or Immunities Clause and the Slaughter-House Cases
Slaughter-House Cases: Butchers’ Benevolent Association of New Orleans v. Crescent City Live-Stock Landing & Slaughter-House Co.
Saenz v. Roe
3. The Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment
The Debate over Incorporation
Palko v. Connecticut
Adamson v. California
The Current Law as to What’s Incorporated
McDonald v. City of Chicago
Timbs v. Indiana
The Content of Incorporated Rights
C. The Application of the Bill of Rights and the Constitution to Private Conduct
1. The Requirement for State Action
The Civil Rights Cases: United States v. Stanley
2. The Exceptions to the State Action Doctrine
a. The Public Functions Exception
Marsh v. Alabama
Jackson v. Metropolitan Edison Co.
Terry v. Adams
Evans v. Newton
Manhattan Community Access Corporation v. Halleck
Hudgens v. National Labor Relations Board
b. The Entanglement Exception
Judicial and Law Enforcement Actions
Shelley v. Kraemer
Lugar v. Edmondson Oil Co.
Edmonson v. Leesville Concrete Co.
Government Regulation
Burton v. Wilmington Parking Authority
Moose Lodge No. 107 v. Irvis
Government Subsidies
Norwood v. Harrison
Rendell-Baker v. Kohn
Entwinement
Brentwood Academy v. Tennessee Secondary School Athletic Association
Chapter 6. Economic Liberties
A. Introduction
Historical Overview
Organization of the Chapter
B. Economic Substantive Due Process
1. Introduction
2. The Early History of Economic Substantive Due Process
3. Substantive Due Process of the Lochner Era
Allgeyer v. Louisiana
Lochner v. New York
Laws Protecting Unionizing
Maximum Hours Laws
Muller v. Oregon
Minimum Wage Laws
Adkins v. Children’s Hospital
Consumer Protection Legislation
Weaver v. Palmer Bros. Co.
4. Economic Substantive Due Process Since 1937
Pressures for Change
The End of Lochnerism
West Coast Hotel Co. v. Parrish
United States v. Carolene Products Co.
Economic Substantive Due Process Since 1937
Williamson v. Lee Optical of Oklahoma, Inc.
The Rebirth of Economic Due Process? Constitutional Limits on Punitive Damages
BMW of North America, Inc. v. Gore
State Farm Mutual Automobile Insurance Co. v. Campbell
Too Much Deference?
C. The Contracts Clause
1. Introduction
2. The Modern Use of the Contracts Clause
Home Building & Loan Association v. Blaisdell
Government Interference with Private Contracts
Energy Reserves Group, Inc. v. Kansas Power & Light Co.
Government Interference with Government Contracts
United States Trust Co. v. New Jersey
D. The Takings Clause
1. Introduction
2. Is There a “Taking”?
Possessory Takings
Loretto v. Teleprompter Manhattan CATV Corp.
Horne v. Department of Agriculture
Regulatory Takings
Pennsylvania Coal Co. v. Mahon
Miller v. Schoene
Penn Central Transportation Co. v. New York City
Lucas v. South Carolina Coastal Council
Nollan v. California Coastal Commn.
Dolan v. City of Tigard
Palazzolo v. Rhode Island
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
3. Is It for “Public Use”?
Kelo v. City of New London
4. What Is the Requirement for “Just Compensation”?
Brown v. Legal Foundation of Washington
Chapter 7. Equal Protection
A. Introduction
1. Constitutional Provisions Concerning Equal Protection
2. A Framework for Equal Protection Analysis
Question 1: What Is the Classification?
Question 2: What Is the Appropriate Level of Scrutiny?
Question 3: Does the Government Action Meet the Level of Scrutiny?
The Protection of Fundamental Rights Under Equal Protection
B. The Rational Basis Test
1. Introduction
2. Does the Law Have a Legitimate Purpose?
What Constitutes a Legitimate Purpose?
Romer v. Evans
Must It Be the Actual Purpose, or Is a Conceivable Purpose Enough?
3. The Requirement for a “Reasonable Relationship”
Tolerance for Underinclusiveness Under Rational Basis Review
Railway Express Agency, Inc. v. New York
Tolerance for Overinclusiveness Under Rational Basis Review
New York City Transit Authority v. Beazer
Cases in Which Laws Are Deemed Arbitrary and Unreasonable
U.S. Department of Agriculture v. Moreno
City of Cleburne, Texas v. Cleburne Living Center, Inc.
C. Classifications Based on Race and National Origin
1. Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments
Dred Scott v. Sandford
Dred Scott v. Sandford
The Post-Civil War Amendments
2. Strict Scrutiny for Discrimination Based on Race and National Origin
3. Proving the Existence of a Race or National Origin Classification
a. Race and National Origin Classifications on the Face of the Law
Race-Specific Classifications That Disadvantage Racial Minorities
Korematsu v. United States
Racial Classifications Burdening Both Whites and Minorities
Loving v. Virginia
Palmore v. Sidoti
Laws Requiring Separation of the Races
Plessy v. Ferguson
The Initial Attack on “Separate but Equal”
Brown v. Board of Education
Brown v. Board of Education
The Invalidation of Segregation in Other Contexts
b. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration
The Requirement for Proof of a Discriminatory Purpose
Washington v. Davis
McCleskey v. Kemp
City of Mobile v. Bolden
Is Proof of a Discriminatory Effect Also Required?
Palmer v. Thompson
How Is a Discriminatory Purpose Proven?
Personnel Administrator of Massachusetts v. Feeney
Village of Arlington Heights v. Metropolitan Housing Development Corp.
Application: Discriminatory Use of Peremptory Challenges
4. Remedies: The Problem of School Segregation
Introduction: The Problem of Remedies
Brown v. Board of Education
Massive Resistance
Judicial Power to Impose Remedies in School Desegregation Cases
Swann v. Charlotte-Mecklenburg Board of Education
Milliken v. Bradley
When Should Federal Desegregation Remedies End?
Board of Education of Oklahoma City Public Schools v. Dowell
Parents Involved in Community Schools v. Seattle School District No. 1
5. Racial Classifications Benefiting Minorities
The Emergence of Strict Scrutiny as the Test
Richmond v. J.A. Croson Co.
The Arguments for and Against Strict Scrutiny
The Use of Race to Benefit Minorities in College and University Admissions
Grutter v. Bollinger
Gratz v. Bollinger
Fisher v. University of Texas at Austin
Drawing Election Districts to Increase Minority Representation
D. Gender Classifications
1. The Level of Scrutiny
Early Cases Approving Gender Discrimination
The Emergence of Intermediate Scrutiny
Frontiero v. Richardson
Craig v. Boren
United States v. Virginia
2. Proving the Existence of a Gender Classification
When Is It “Discrimination”?
Geduldig v. Aiello
3. Gender Classifications Benefiting Women
Gender Classifications Based on Role Stereotypes
Orr v. Orr
Mississippi University for Women v. Hogan
Michael M. v. Superior Court of Sonoma County
Rostker v. Goldberg
Gender Classifications Benefiting Women as a Remedy
Califano v. Webster
Classifications Benefiting Women Because of Biological Differences Between Men and Women
Nguyen v. Immigration & Naturalization Service
E. Discrimination Against Non-United States Citizens
1. Strict Scrutiny as the General Rule
Graham v. Richardson
2. Alienage Classifications Related to Self-Government and the Democratic Process
Foley v. Connelie
Ambach v. Norwick
3. Congressionally Approved Discrimination
4. Undocumented Aliens and Equal Protection
Plyler v. Doe
F. Discrimination Against Nonmarital Children
Laws Denying Benefits to All Nonmarital Children
Laws That Provide a Benefit to Some Nonmarital Children
G. Other Types of Discrimination: Only Rational Basis Review
1. Age Classifications
Massachusetts Board of Retirement v. Murgia
2. Discrimination Based on Disability
3. Wealth Discrimination
4. Discrimination Based on Sexual Orientation
Chapter 8. Fundamental Rights Under Due Process and Equal Protection
A. Introduction
The Concept of Fundamental Rights
The Ninth Amendment
Procedural Due Process
B. Framework for Analyzing Fundamental Rights
First Issue: Is There a Fundamental Right?
Second Issue: Is the Constitutional Right Infringed?
Third Issue: Is There a Sufficient Justification for the Government’s Infringement of a Right?
Fourth Issue: Is the Means Sufficiently Related to the Purpose?
C. Constitutional Protection for Family Autonomy
1. The Right to Marry
Loving v. Virginia
Obergefell v. Hodges
2. The Right to Custody of One’s Children
Stanley v. Illinois
Michael H. v. Gerald D.
3. The Right to Keep the Family Together
Moore v. City of East Cleveland, Ohio
4. The Right of Parents to Control the Upbringing of Their Children
Meyer v. Nebraska
Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary
Troxel v. Granville
D. Constitutional Protection for Reproductive Autonomy
1. The Right to Procreate
Buck v. Bell
Skinner v. Oklahoma ex rel. Williamson
2. The Right to Purchase and Use Contraceptives
Griswold v. Connecticut
Eisenstadt v. Baird
3. The Right to Abortion
a. The Recognition and Reaffirmation of the Right to Abortion
Roe v. Wade
Planned Parenthood v. Casey
b. Government Regulation of Abortions
Whole Woman’s Health v. Hellerstedt
Gonzales v. Carhart
c. Government Restrictions on Funds and Facilities for Abortions
Maher v. Roe
Harris v. McRae
d. Spousal Consent and Notice Requirements
Planned Parenthood v. Danforth
Planned Parenthood v. Casey
e. Parental Notice and Consent Requirements
Bellotti v. Baird
E. Constitutional Protection for Medical Care Decisions
Right to Refuse Treatment
Cruzan v. Director, Missouri Department of Health
Right to Physician-Assisted Death
Washington v. Glucksberg
Vacco v. Quill
F. Constitutional Protection for Sexual Orientation and Sexual Activity
Lawrence v. Texas
G. Constitutional Protection for Control over Information
Whalen v. Roe
H. Constitutional Protection for Travel
Saenz v. Roe
Restrictions on Foreign Travel
I. The Right to Vote
1. The Right to Vote as a Fundamental Right
2. Restrictions on the Ability to Vote
Poll Taxes
Harper v. Virginia State Board of Elections
Property Ownership Requirements
Kramer v. Union Free School District
Literacy Tests
Prisoners’ and Convicted Criminals’ Right to Vote
Requirement for Photo Identification for Voting
Crawford v. Marion County Election Board
3. Dilution of the Right to Vote
Reynolds v. Sims
Evenwel v. Abbott
4. Counting “Uncounted” Votes in a Presidential Election: Bush v. Gore
The Events Leading to Bush v. Gore
Bush v. Gore
Issues to Consider Concerning Bush v. Gore
J. Constitutional Protection for Access to Courts
Filing Fees
Boddie v. Connecticut
United States v. Kras
Prisoners’ Right of Access to the Courts
Bounds v. Smith
Lewis v. Casey
K. Constitutional Protection for a Right to Education
San Antonio Independent School District v. Rodriguez
L. Procedural Due Process
1. What Is a “Deprivation”?
Is Negligence Sufficient to Constitute a Deprivation?
Daniels v. Williams
County of Sacramento v. Lewis
When Is the Government’s Failure to Protect a Person from Privately Inflicted Harms
DeShaney v. Winnebago County Department of Social Services
2. Is It a Deprivation of “Life, Liberty, or Property”?
The “Rights-Privileges” Distinction and Its Demise
Goldberg v. Kelly
What Is a Deprivation of Property?
Board of Regents of State Colleges v. Roth
What Is a Deprivation of Liberty?
Reputation as a Liberty Interest
Goss v. Lopez
Paul v. Davis
Liberty Interest for Prisoners
Sandin v. Conner
3. What Procedures Are Required?
Mathews v. Eldridge
Government Employment
Family Rights
Substantive and Procedural Due Process: The Relationship
District Attorney’s Office for the Third Judicial District v. Osborne
Chapter 9. First Amendment: Freedom of Expression
A. Introduction
1. Historical Background
2. Why Should Freedom of Speech Be a Fundamental Right?
a. Self-Governance
b. Discovering Truth
c. Advancing Autonomy
d. Promoting Tolerance
e. Conclusion
3. The Issues in Free Expression Analysis
B. Free Speech Methodology
1. The Distinction Between Content-Based and Content-Neutral Laws
a. The Importance of the Distinction
Reed v. Town of Gilbert
b. How Is It Determined Whether a Law Is Content-Based?
The Requirement for Viewpoint Neutrality
Matal v. Tam
Subject-Matter Restrictions
Williams-Yulee v. Florida Bar
Content-Neutral Laws
c. Problems in Applying the Distinction Between Content-Based and Content-Neutral Laws
i. Permissible Purposes and Content Neutrality
City of Renton v. Playtime Theatres, Inc.
ii. When the Government Must Make Content-Based Choices
National Endowment for the Arts v. Finley
iii. Government Speech
Pleasant Grove City, Utah v. Summum
Walker v. Texas Division, Sons of Confederate Veterans
2. Vagueness and Overbreadth
a. Vagueness
Coates v. City of Cincinnati
b. Overbreadth
Schad v. Borough of Mount Ephraim
c. Relationship Between Vagueness and Overbreadth
Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.
3. Prior Restraints
a. What Is a Prior Restraint?
b. Are Prior Restraints Really So Bad?
i. Court Orders as a Prior Restraint
Near v. State of Minnesota ex rel. Olson
ii. Court Orders to Protect National Security
New York Times Co. v. United States
iii. Court Orders to Protect Fair Trials
Nebraska Press Association v. Stuart
iv. Court Orders Seizing the Assets of Businesses Convicted of Obscenity Violations
Alexander v. United States
c. Licensing as a Prior Restraint
Lovell v. City of Griffin, Ga.
Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton
i. Important Reason for Licensing
ii. Clear Standards Leaving Almost No Discretion to the Government
City of Lakewood v. Plain Dealer Publishing Co.
iii. Procedural Safeguards
4. What Is an Infringement of Freedom of Speech?
Civil Liability and Denial of Compensation for Speech
Prohibitions on Compensation
United States v. National Treasury Employees Union
Compelled Speech
West Virginia State Board of Education v. Barnette
National Federation of Family and Life Advocates v. Becerra
Rumsfeld v. Forum for Academic & Institutional Rights, Inc.
McIntyre v. Ohio Elections Commission
Unconstitutional Conditions
Speiser v. Randall
Rust v. Sullivan
Legal Services Corp. v. Velazquez
Government Pressures
C. Types of Unprotected and Less Protected Speech
1. Incitement of Illegal Activity
a. The “Clear and Present Danger” Test
Schenck v. United States
Frohwerk v. United States
Debs v. United States
Abrams v. United States
b. The Reasonableness Approach
Gitlow v. New York
Whitney v. California
c. The Risk Formula Approach
Dennis v. United States
d. The Brandenburg Test
Brandenburg v. Ohio
Holder v. Humanitarian Law Project
2. Fighting Words, the Hostile Audience, and the Problem of Racist Speech
a. Fighting Words
Chaplinsky v. New Hampshire
i. Narrowing the Fighting Words Doctrine
ii. Fighting Words Laws Invalidated as Vague and Overbroad
Gooding v. Wilson
iii. Narrow Fighting Words Laws as Content-Based Restrictions
R.A.V. v. City of St. Paul, Minnesota
b. The Hostile Audience Cases
The Problem of Racist Speech
Virginia v. Black
3. Sexually Oriented Speech
a. Obscenity
i. Supreme Court Decisions Finding Obscenity Unprotected
Roth v. United States
Paris Adult Theatre I v. Slaton
Miller v. California
ii. Should Obscenity Be a Category of Unprotected Speech?
iii. Should There Be a New Exception for Pornography?
b. Child Pornography
New York v. Ferber
c. Protected but Low-Value Sexual Speech
i. Zoning Ordinances
Young v. American Mini Theatres, Inc.
ii. Nude Dancing
City of Erie v. Pap’s A.M.
iii. Should There Be Such a Category as Low-Value Sexual Speech?
d. Government Techniques for Controlling Obscenity and Child Pornography
Stanley v. Georgia
Osborne v. Ohio
e. Profanity and “Indecent” Speech
Cohen v. California
i. The Broadcast Media
Federal Communications Commission v. Pacifica Foundation
ii. Telephones
iii. The Internet
Reno v. American Civil Liberties Union
iv. Cable Television
4. A New Exception for Violent Speech?
United States v. Stevens
Brown v. Entertainment Merchants Association
5. Commercial Speech
a. Constitutional Protection for Commercial Speech
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
Overview of the Section
b. What Is Commercial Speech?
Bolger v. Youngs Drug Products Corp.
Sorrell v. IMS Health Inc.
c. The Test for Evaluating Regulation of Commercial Speech
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York
Is Least Restrictive Alternative Analysis Applicable?
d. Advertising of Illegal Activities
e. False and Deceptive Advertising
f. Advertising That Inherently Risks Deception
Restrictions on Trade Names
Attorney Solicitation of Prospective Clients
Solicitation by Accountants
g. Regulating Commercial Speech to Achieve Other Goals
i. “For Sale” Signs on Houses
ii. Alcohol Products
44 Liquormart, Inc. v. Rhode Island
iii. Tobacco Products
Lorillard Tobacco Co. v. Reilly
iv. Gambling
v. Advertising by Lawyers and Other Professionals
6. Reputation, Privacy, Publicity, and the First Amendment: Torts and the First Amendment
a. Defamation
i. Public Officials as Defamation Plaintiffs
New York Times Co. v. Sullivan
ii. Public Figures as Plaintiffs
Gertz v. Welch
iii. Private Figures, Matters of Public Concern
iv. Private Figures, Matters Not of Public Concern
v. Conclusion
b. Intentional Infliction of Emotional Distress
Hustler Magazine v. Falwell
Snyder v. Phelps
c. Public Disclosure of Private Facts
Cox Broadcasting Corp. v. Cohn
Information from Nongovernment Sources
d. Right of Publicity
7. Conduct That Communicates
a. What Is Speech?
b. When Is Conduct Communicative?
c. When May the Government Regulate Conduct That Communicates?
i. The O’Brien Test
United States v. O’Brien
ii. Flag Desecration
Texas v. Johnson
iii. Spending Money as Political Speech
Buckley v. Valeo
Criticisms of Buckley
The Continuing Distinction Between Contributions and Expenditures
When Are Contribution Limits Too Low?
Are Corporate Expenditures Protected Speech?
First National Bank of Boston v. Bellotti
Citizens United v. Federal Election Commission
The Constitutionality of Public Financing of Elections
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett
D. What Places Are Available for Speech?
1. Government Properties and Speech
a. Initial Rejection and Subsequent Recognition of a Right to Use Government Property for Speech
Hague v. Committee for Industrial Organization
Schneider v. New Jersey
b. What Government Property and Under What Circumstances?
c. Public Forums
i. Content Neutrality
Police Department of the City of Chicago v. Mosley
ii. Time, Place, and Manner Restrictions
Hill v. Colorado
McCullen v. Coakley
iii. Licensing and Permit Systems
iv. No Requirement for Use of the Least Restrictive Alternative
Ward v. Rock Against Racism
d. Designated Public Forums
e. Limited Public Forums
Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez
f. Nonpublic Forums
2. Private Property and Speech
3. Speech in Authoritarian Environments: Military, Prisons, and Schools
a. Military
Parker v. Levy
b. Prisons
Thornburgh v. Abbott
c. Schools
Tinker v. Des Moines Independent Community School District
Bethel School District No. 403 v. Fraser
Morse v. Frederick
d. The Speech Rights of Government Employees Garcetti v. Ceballos
E. Freedom of Association
1. Laws Prohibiting and Punishing Membership
2. Laws Requiring Disclosure of Membership
NAACP v. State of Alabama ex rel. Patterson
Campaign Finance Disclosure
3. Compelled Association
Janus v. American Federation of State, County, and Municipal Employees, Council 31
Board of Regents of the University of Wisconsin System v. Southworth
4. Laws Prohibiting Discrimination
Roberts v. United States Jaycees
Boy Scouts of America v. Dale
F. Freedom of the Press
1. Introduction: Are There Special Rights for the Press?
2. Freedom of the Press as a Shield to Protect the Press from the Government
a. Taxes on the Press
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue
b. Application of General Regulatory Laws
Cohen v. Cowles Media Co.
c. Keeping Reporters’ Sources and Secrets Confidential
Branzburg v. Hayes
d. Laws Requiring That the Media Make Access Available
3. Freedom of the Press as a Sword: A First Amendment Right of Access to Government Places and Papers?
a. Access to Judicial Proceedings
Richmond Newspapers v. Virginia
b. Prisons
Houchins v. KQED
Chapter 10. First Amendment: Religion
A. Introduction
1. Constitutional Provisions Concerning Religion and the Tension Between Them
2. History in Interpreting the Religion Clauses
3. What Is Religion?
The Attempt to Define Religion Under the Selective Service Act
United States v. Seeger
Requirement for Sincerely Held Beliefs
United States v. Ballard
The Relevance of Religious Dogma and Shared Beliefs
B. The Free Exercise Clause
1. Introduction: Free Exercise Clause Issues
2. The Law Before Employment Division v. Smith
a. Government Benefit Cases
b. Compulsory Schooling
c. Cases Rejecting Exemptions Based on the Free Exercise Clause
3. The Current Test
Employment Division, Department of Human Resources of Oregon v. Smith
4. Supreme Court Decisions Since Employment Division v. Smith
a. Animus Against Religion
Masterpiece Cake Shop, Ltd. v. Colorado Civil Rights Commission
b. Interfering with Choices as to Clergy
c. Denial of Funding to Religious Entities
Locke v. Davey
Trinity Lutheran Church of Columbia, Inc. v. Comer
5. Statutory Protection of Religious Freedom
C. The Establishment Clause
1. Competing Theories of the Establishment Clause
a. Strict Separation
b. Neutrality Theory
c. Accommodation
d. The Theories Applied: An Example
County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter
2. Government Discrimination Among Religions
3. The Lemon Test for the Establishment Clause
Lemon v. Kurtzman
The Requirement for a Secular Purpose
The Requirement for a Secular Effect
The Prohibition of Excessive Entanglement
4. Religious Speech and the First Amendment
a. Religious Group Access to School Facilities
b. Student Religious Groups’ Receipt of Government Funds
5. When Can Religion Become a Part of Government Activities?
a. Religion as a Part of Government Activities: Schools
Release Time
School Prayers and Bible Reading
Engel v. Vitale
Lee v. Weisman
Santa Fe Independent School District v. Doe
Curricular Decisions
b. Religion as a Part of Government Activities: Legislative Chaplains
Town of Greece v. Galloway
c. Religion as a Part of Government Activities: Religious Symbols on Government Property
McCreary County v. American Civil Liberties Union of Kentucky
Van Orden v. Perry
American Legion v. American Humanist Association
6. When Can Government Give Aid to Religion?
Aid to Parochial Elementary and Secondary Schools
Mitchell v. Helms
Zelman v. Simmons-Harris
Tax Exemptions for Religious Organizations
Aid to Religious Colleges and Universities
Aid to Religious Institutions Other than Schools
Table of Cases
Index

A leading text by a prominent scholar, Constitutional Law is known for its concise, yet comprehensive presentation. Professor Chemerinsky’s distinctive approach for the Sixth Edition presents the law solely through case excerpts and his own essays. With the author’s context and background information, the law becomes more readily understood. A flexible organization accommodates a variety of course structures; no chapter assumes that students have read preceding material.

New to the Sixth Edition:
- New cases decided since the Fifth Edition, including those on partisan gerrymandering, the travel ban, state action, freedom of speech, and the religion clauses
- Significant reorganizations of some of the chapters (including chapters on federal limits on state power and the religion clauses)

Professors and students will benefit from:
- Renowned authorship
- Concise, yet comprehensive presentation
- Distinctive approach presents the law solely through case excerpts and author-written essays
- Straightforward, accessible writing style that provides context and background information for greater understanding
- Flexible organization—no chapter assumes that students have read the rest
- Cases and materials have been edited to be as ideologically neutral as possible