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This index includes references to the Capsule Summary
and to the Exam Tips, but not to Q&A or Flow Charts
ABORTION
Clinics, performance by, standards for
Clinics, protests near
Consent to
By parents
By spouse
Counseling, restrictions on
Immature
Informed consent
Mature or emancipated
Minors
Notice and consultation
By spouse
Parental consent
Partial-birth method
Planned Parenthood v. Casey
Informed consent
Parental consent
Significance
Spousal notification
Undue burden standard
Public facilities
Ban on
Public funding of
Regulations discouraging abortion
Right to privacy
Significance
Types of methods allowed
Undue burden standard
ADMISSIONS
Race-based admissions as equal protection violation
ADULT SEXUAL RELATIONS
See EQUAL PROTECTION, SEXUALITY
ADVISORY OPINIONS
Generally
AFFIRMATIVE ACTION
See EQUAL PROTECTION
AFFORDABLE CARE ACT
Commerce power as basis for
Spending power exceeded in
Taxing power as basis for
ALIENAGE
See EQUAL PROTECTION
APPOINTMENTS CLAUSE
Inferior (lower-level) officers and
Meaning of
Principal officers and
Recess appointments
Removal of officers
BILL OF RIGHTS
Application to states
Selective incorporation approach
BILLS OF ATTAINDER
Generally
BIRTH CONTROL
Generally
Regulation of following Roe v. Wade
Use by minors
CAMPAIGN FINANCE
Free speech and regulation of
Aggregate spending limits
CIVIL RIGHTS LAWS
Congress’ power to modify constitutional rights given by
Congressional enforcement of
Private conduct, Congress’ power to reach
Repeal of as state action
Thirteenth Amendment, laws passed under authority of
Voting rights
COMA
Rights of patient in
COMMERCE CLAUSE
See INTERSTATE COMMERCE
COMMERCIAL SPEECH
See FREEDOM OF SPEECH
CONGRESS’ POWERS
Appointment and removal of federal officers
Commitment of the armed forces
Enforcement of civil rights laws
Executive officers, right to remove
Modification of constitutional rights
Removal of executive officers
Removal of federal officers
Specific powers of
Substantive scope of constitutional rights, modification of
Use of “Necessary and Proper” Clause
CONSTITUTIONAL RIGHTS
Congress’ inability to modify substantive content of
CONTRACT CLAUSE
Generally
Distinction between public and private contracts
Incidental effect on contract
Private contracts, application to
Public agreements, application to
DECLARATORY JUDGMENT
As advisory opinion
DEFAMATION
Generally
Damages for, types of
“Private figures”
“Public figures”
DEFENSE OF MARRIAGE ACT (DOMA)
As due process violation
As equal protection violation
DESEGREGATION
See EQUAL PROTECTION
DUE PROCESS OF LAW
Generally
Abortion
Economic regulation
Summary of modern approach
Family relations
Child-raising
Marriage
Summary of modern approach
Zoning and the “non-nuclear” family
Freedom of inquiry
Fundamental rights
Homosexuality
Incorporation of Bill of Rights
Marriage, right of
Natural father, rights of
Non-economic rights
Birth control use
Personal appearance
Procedural due process
Court proceedings
Criminal defendants and prisoners
Debtors’ rights
DNA testing
Driver’s license
Judicial bias
“Liberty” definition narrowed
Protection from third-party misdeeds
Reputation, interest in
School suspensions
Tenured employees
Welfare benefits
What process is due
Punitive damages as violation of
Purposeful discrimination
Reputation, no protected right in
Right to die
“Clear and convincing” standard
Health-care proxy
Incompetent patient
Living will
Suicide
Same-sex marriage
Sexual conduct
Fornication
Homosexuality
Sexual privacy
Substantive due process
Protection of non-economic rights
Generally
Two-tier standard of review
ECONOMIC AND SOCIAL REGULATION
See EQUAL PROTECTION
EDUCATION
Denial of as equal protection violation
Illegal aliens
ELECTION DISTRICTS
See VOTING RIGHTS
ELEVENTH AMENDMENT
Generally
Congruent-and-proportional requirement
Exclusions
Patent suits, states’ immunity from
State-court suits and
Suits against states, Congress’ general power to allow
Text of
EQUAL PROTECTION
Generally
Admissions based on race
Adoption
Affirmative action
Attempt to remedy past discrimination
Congressionally imposed
Hiring
Lay-offs
Minority set-asides
Congressionally imposed
Preferential admissions to universities
Promotion preferences
Race, consideration of in public universities
Racial classifications, benign use of
Repeal of by voters
Sex-based classes
Intermediate scrutiny rigorously
applied
Stereotypes or generalizations
Standard of review for
University admissions
Alienage
Education of illegal aliens
Exceptions to strict scrutiny of
Strict scrutiny applied
Animus toward unpopular groups
Anti-gay laws
Child custody
Courts, access to
Civil litigation
Counsel during appeal
Transcripts on appeal
Desegregation
Busing to accomplish
De facto/de jure distinction
Economic and social regulation
Hypothetical legislative objectives
Likelihood of bias
Means-end link
Objective of legislature
Education, right to
Federal government, application to
Fundamental rights
Access to courts as
Ballot access as
Education as
Homosexuals, singling out of
Right to travel as
Voting rights as
Illegitimacy
Lay-offs
Mentally ill, discrimination against
Mentally retarded, discrimination against
“Mere-rationality” review
“Mere-rationality” standard
Middle-level review
Close means-end fit required
General principles of
Hypothesizing of state purpose
Mental illness
Mental retardation, not applicable to
Minority set-asides
Congressionally imposed
Operation of the Clause, generally
Over-inclusive classification
Political process, race used in
Poll tax as violation of
Preferrential admissions to universities
Prison cell assignments as violation of
Promotion preferences
Purposeful discrimination
Circumstantial evidence used to prove
Sex discrimination
Statistics used to prove
Quotas, use of
Racial discrimination
Adoption
Child custody
Prison cell assignments
Racially restrictive covenants
Voting
Residency requirements for education
School admissions
Segregation
See also “Desegregation” under this main heading
Remedies to combat
“Separate but equal” doctrine
“Separate but equal” treatment
“Separate but equal” treatment
Sex discrimination
Discriminatory purpose required
Intermediate scrutiny of
Sex-based classes
Intermediate scrutiny rigorously applied
Single-sex education
Stereotypes or generalizations
Standard of review for
Stereotypes, significance of
Strict scrutiny
How much
How strict
Immutability, significance of
Other requirements for
Purposeful discrimination required for
Stereotypes, significance
Strict scrutiny, required
Suspect classifications
See also SUSPECT CLASSIFICATIONS
To cure racial discrimination generally
Travel, right to
Discrimination based on length of residence
University tuition, residency requirements for
Welfare benefits, residency rules for
Under-inclusive classification
University admissions
Voluntary plans by public employers
Voting rights
Ballot access
Felons
Residency requirements
Voter ID requirement
Wealth, classifications based on
Housing
Welfare benefits
Welfare benefits
ESTABLISHMENT CLAUSE
Generally
Ceremonies and displays
Free Exercise Clause, relation to
Graduation ceremony
Holidays, celebration of
Interdenominational preferences
Legislative chaplain
Ministerial exception from government regulation
Nativity scene, display of
Parochial schools aid to
Higher education
Teachers, furnishing of
Textbooks and other materials
Transportation
Prayers during public events
Preference among denominations
Preference for religion over non-religion
Public schools
Anti-evolution laws
Facilities use by student groups
Graduation ceremony
Modification of curriculum
Moment of silence
Prayer reading
Religious instruction
Tuition vouchers
Religious displays
Specific prohibitions
Sunday closing laws
Three-prong test for
Tuition vouchers
EX POST FACTO LAWS
EXECUTIVE POWERS
See also IMMUNITIES
Appointment of officials by President
Commitment of the armed forces
Executive privilege
“Line item” veto
Invalidated
No right to make laws
Right to remove appointees
Veto power
War powers
EXECUTIVE PRIVILEGE
FALSE STATEMENTS
Government power to ban
FEDERALISM
FIRST AMENDMENT
See FREEDOM OF SPEECH, FREEDOM OF ASSOCIATION, FREEDOM OF RELIGION
FLOW CHARTS
See listing of flow charts following Table of Contents
FOREIGN AFFAIRS
Federal government’s power over
FORNICATION
Due process right to commit
FREE EXERCISE CLAUSE
Generally
Animal sacrifice
Conscientious objection
Establishment Clause, relation to
Incidental interference with religious conduct
Intent to interfere with religion
Life-saving medical treatment
Military service, relation to
Ministerial exception from government regulation
Nativity Scene, right to display
Public health objectives as interference with
Religious belief, definition of
Sacrifice of animals
Sincerity of belief
FREEDOM OF ASSOCIATION
Generally
Compulsory disclosure
Modern Court’s approach to
Denial of public jobs or benefits
Loyalty oaths
Patronage dismissals and hirings
Independent contractors
Speech critical of superiors
Illegal groups
Independent contractors
Loyalty oaths
Membership, interference with
FREEDOM OF EXPRESSION
See FREEDOM OF SPEECH, FREEDOM OF ASSOCIATION, FREEDOM OF SPEECH, FREEDOM OF RELIGION
FREEDOM OF RELIGION
Generally
See also ESTABLISHMENT CLAUSE, FREE EXERCISE CLAUSE
Religious belief, definition of
FREEDOM OF SPEECH
Abortion clinics
Protests outside of
Advocacy of illegal acts
Incitement required
Modern standard for
Canvassing and soliciting
Captive audience
Commercial speech
Current status of
Definition of
Harmful products, advertising of
Gambling
Lawyers, regulation of speech of
Lawyers, regulation of speech to
Misleading statements
“Reasonably tailored means”
Communicative impact regulation aimed at speech
Conduct distinguished from speech
Content-neutrality generally required
Courthouse
Criminal trials, access to
Defamation
Defamation,
See also DEFAMATION
Emotional distress, intentional infliction of
Facial attack on statute
Fairgrounds
False statements of fact
Government’s right to ban
“Fighting words” doctrine
Flag desecration and misuse
Federal statute
Gag order to preserve fair trial, 163
Gambling, regulation of advertising about, 242
Government as speaker or funder of speech, 239
“Hate speech,” regulation of, 237, 144
Hostile audience, 144, 236
Anger by audience not sufficient, 144
Crowd-control required, 144, 236
Indecency, regulation of, 151, 241
Internet, 151, 241
Intentional infliction of emotional distress, 135, 150, 240
Internet, 151, 241
Lawyers, comments by, 163
Lawyers, commercial speech by, 154, 242
Legal services furnished by lay groups, 242
Licensing requirements, 141, 235
Media, 163–164, 245
Access to pre-trial proceedings, 164
Confidential information, 163
Criminal trials, right of access to, 164
Disclosure of confidential or illegally-obtained information, 164
Disclosure of sources, 163
Government demands for information held by, 163
Grand jury subpoenas, 163, 245
Non-communicative impact aimed at speech, 135
Prior restraints, 163, 245
Right of access to government-held information, 164, 245
Shield laws, 164
Sources, disclosure of, 163
Military bases, 238
Military honors, lying about, 150–151
Monument, display of as government speech, 158, 239
Non-communicative impact aimed at speech, 233
Obscenity, 151–152, 241
See also OBSCENITY
Offensive words, 144, 237
Overbreadth
See OVERBREADTH
Political campaign speech, 154–156
Pornography, 152
See also OBSCENITY
Child pornography, 152
Pre-trial proceedings, access to, 164
Prior restraints, 141, 245
Gag orders to preserve fair trial, 163
Strict scrutiny of, 163, 245
Private places, 147, 239
Right of access to, 148, 239
Public employees’ speech and association rights, 159–161
Public forum, 139, 146–147, 238
Courthouse, 238
Designated public forums, 147
Jails, 238
Limited public forum, 147
Military bases, 238
Non-public forums, 147, 238
Sidewalk, 238
Significant state interest required for regulation, 146, 238
Traditional public forums, 146–148, 238
Workplace, governmental, 238
Regulation of advertising about, as violation of free speech, 242
Religious speech, 137
Schools, 243
Protest in, 149, 156
Students, speech by, 156, 243
Shopping centers, 148, 239
Signs on public property, 146, 240
Students, speech by, 156, 243
Subject matter forbidden, 234
Subversive advocacy, 138–139, 235
See also “Advocacy of illegal acts” under this main heading
Symbolic expression, 148, 240
Time, place and manner regulations, 139–148, 232–234
General test for validity, 139–141, 234
Narrow tailoring required, 239
Obscenity, regulation of, 151, 241
Sometimes upheld, 236
“Unprotected categories” approach, 136
Unprotected categories, 136
Vagueness
See VAGUENESS
Viewpoint neutrality, 148
Workplace, 148, 239
FUNDAMENTAL RIGHTS
See DUE PROCESS OF LAW, 148
GAY MARRIAGE
Equal protection and, 85
Substantive due process and, 80
GOVERNMENTAL MOTIVE
Discriminatory intent, 97, 219
In freedom of speech cases, 136, 233
HABEAS CORPUS
Separation-of-powers issues posed by, 62
“HATE SPEECH”
See also FREEDOM OF SPEECH
Regulation of as First Amendment violation, 144
HOMOSEXUALITY
See also DUE PROCESS OF LAW, SAME-SEX MARRIAGE and SEXUALITY
Animus toward unpopular groups, 211
Change in Court attitude towards, 211
Fundamental right not found, 211
Sodomy, 211
States cannot criminalize, 211
ILLEGITIMACY
See also EQUAL PROTECTION
Generally, 109–110, 222
IMMUNITIES
Civil immunity of presidential assistants, 68, 207
Civil liability of President for official acts, 67
Civil liability of President for unofficial acts, 68
Federal immunity from state regulation, 74, 202
From taxation, 74, 202
Federal immunity from state regulation, 74, 202
State immunity from federal taxation, 74, 202
Of Congress, 67, 207
Of executive, 68, 207
IMPEACHMENT
Generally, 67, 206
“High crimes and misdemeanors,” meaning of, 67
Reviewability of by the courts, 186
INDEPENDENT AND ADEQUATE STATE GROUNDS
Supreme Court review obviated by, 49
INSURANCE
Forced purchase of as not within Congress’ Commerce power, 56
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
First Amendment and, 135, 233
INTERMEDIATE SCRUTINY
See EQUAL PROTECTION
INTERSTATE COMMERCE
Channels of interstate commerce, 53
Congress’ power over, 57
“Activity” required for, 56
Limits on, 53–55
Modern trend, generally, 53–55
Tenth Amendment as limit on, 57
Disproportionately burdensome to, 199
Instrumentalities of interstate commerce, 53
Outgoing trade, barriers to, 69
Relocation, pressures inducing, 70
State as purchaser or subsidizer, 70, 199
State regulation of, 68, 199
Balancing test, 69, 198
Cumulative burdens, 70, 198
Discrimination, 68, 70, 199
Disproportionately burdensome to, 70
Environmental rules, 69, 199
Health objectives, 69, 199
Incoming trade, barriers to, 68, 199
Lee-restrictive alternatives, 69
Local-processing requirements, 70
“Market participant,” state as, 70, 199
Means-end fit, 68
Modern approach, 68, 199
Natural resources, embargo of, 69, 199
Need for “legitimate state end”, 68
Outgoing trade, barriers to, 69, 199
Protection, 69
Protectionism, 199
Purchaser or subsidizer, state acting as, 70, 199
Taxation, 70, 199
Taxing of natural resources, 69
“Substantially affecting” commerce, 54–55
JUDICIAL BIAS
As due process violation, 90
JUDICIAL BRANCH
Congress’ control of federal judicial power, 50
Supreme Court’s powers, 50
JUDICIAL REVIEW
Legitimacy of, 49
JUSTICIABILITY, 175–188, 250–255
See also ADVISORY OPINIONS, ELEVENTH AMENDMENT, MOOTNESS, POLITICAL QUESTIONS, RIPENESS, and STANDING
LESS RESTRICTIVE ALTERNATIVES
Access to criminal trials, 164
Compulsory disclosure of associational ties, 160
Interstate Commerce, 69
State regulation of commerce, 69
“LINE ITEM” VETO
Invalidated, 61
MARRIAGE
By persons owing child support, 84
By same-sex couples, 80, 85, 95, 112, 113, 209, 211, 212, 218
MEDICAL TREATMENT
Right to refuse, 86, 211
“MERE-RATIONALITY” TEST
See EQUAL PROTECTION
MIDDLE-LEVEL SCRUTINY
See EQUAL PROTECTION
MILITARY HONORS
Government’s right to punish lies about, 150–151
MOOTNESS
Generally, 182–183, 252
“Capable of repetition, yet evading review”, 182, 253
Class actions, 182
Collateral consequences, 183, 253
Voluntary cessation by defendant, 183
MOTIVE
See GOVERNMENTAL MOTIVE
NECESSARY AND PROPER CLAUSE
Broad reading given to, 51, 194
OBSCENITY
Generally, 151–152, 241
Child pornography, possession of, 152
Children as audience, 151
Children as photographic subjects, 152
Community standards, 151, 241
Private possession by adults, 152, 241
OVERBREADTH
Generally, 138, 234
As exception to rule against third-party standing, 181, 234, 252
Defined, 138
Substantial overbreadth now required, 138
PARTIAL-BIRTH ABORTION METHOD, 83
POLICE POWER
Federal, non-existence of, 194
POLITICAL CAMPAIGNS
Speech in connection with, 154–156
POLITICAL QUESTIONS
Generally, 186–188, 255
Commitment to other branches, 186, 255
Factors giving rise to, 186
Gerrymandering, 188
Impeachment, 186, 255
Judicially manageable standards, lack of, 187, 255
Reapportionment, 187, 255
Republican form of government, guarantee of, 187
PRAYERS
As possible Establishment Clause violations, 168
PREEMPTION
Generally, 71–73, 200–201
PRIVACY, RIGHT OF, 81, 208
See also DUE PROCESS OF LAW
PRIVILEGES AND IMMUNITIES, 204, 225
Of national citizenship (14th Amendment), 118
Right to travel, 118, 225
Of state citizenship (Art. IV), 75–76, 203–204
Discrimination, test for, 75, 203
Equal protection, distinguished from, 76, 203
Fundamental rights, limitation to, 75, 203
Market participant, no exception for, 75
PUNITIVE DAMAGES
Due process and, 89, 215
RACIAL CLASSIFICATIONS AND QUOTAS
See also EQUAL PROTECTION
Consideration of in public universities, 221
Minority set-asides by states and cities, 105, 221
REAPPORTIONMENT, 255
Generally, 187–188
Equality, permissible deviation from, 187
Gerrymandering, 188
Local government bodies, 187
“One person, one vote” principle, 187, 255
RECESS APPOINTMENTS
President’s power to make, 64–66
Vacancy not arising during a recess, 65
RETROACTIVITY
Contract Clause as restriction on, 122, 226
Ex post facto rule as restriction on, 124, 227
Taking Clause as restriction on, 118–120, 226
RIGHT OF INTERSTATE MIGRATION
See RIGHT TO TRAVEL, EQUAL PROTECTION
RIGHT TO DIE
See also DUE PROCESS OF LAW, “Right to die”
“Clear and convincing” standard, 86, 212
Health-care proxy, 86, 211
Incompetent patient, 86, 211
Living well, 211
Suicide, 86, 212
RIGHT TO TRAVEL
See also EQUAL PROTECTION, 116
Protected under 14th Amendment Privileges or Immunities Clause, 118, 225
RIPENESS
Generally, 183, 253
Criminal statute, uncertain enforcement of, 184, 253
Specific threatened harm, 184, 253
SAME-SEX MARRIAGE, 80, 85, 95, 112–113, 209, 211, 212, 218
State bans on as equal protection violation, 224
SCHOOL SUSPENSION
Due process and, 91
SECOND AMENDMENT, 123–124
SEGREGATION
See EQUAL PROTECTION
SEPARATION OF POWERS
Generally, 61–68, 205–207
Appointment of federal officers, 205
Commitment of the armed forces, 205
Executive immunity, 67, 207
Executive privilege, 68, 207
Habeas corpus and, 62
Impeachment, 67, 206
President’s power, see EXECUTIVE POWERS
President’s veto power, 61, 205
Removal of appointees, 63–67, 206
By Congress, 206
By President, 63–67
SEXUALITY, 85, 211
See also DUE PROCESS OF LAW, GAY MARRIAGE, and HOMOSEXUALITY
Consensual sexual activity
Constitutional protection for, 211
Homosexual conduct, change in Court attitude towards, 210
Rational relation “with bite” applied to, 86
SOVEREIGN IMMUNITY, 254
Of states before federal agencies, 185
Of states in their own courts, 185
SPEECH AND DEBATE CLAUSE, 67, 207
SPENDING POWER
Generally, 59
Coercion of states as limit on, 59–60
Conditions set on use of federal funds, 59–60
Distinct enumerated power, existence as, 59
“General welfare” requirement, 60–61
Regulation, attempt to use for, 61
STANDING
Generally, 176–182, 250–251
“Actual or imminent” requirement, 178, 251
Causation requirement, 180, 251
Citizenship suits, 177, 252
Federal taxpaper suits, 177
Federal taxpayer suits, 252
Harm
Threat of prosecution as harm, 179, 179
Harm suffered by many, 180
“Injury in fact” requirement, 177, 251
Non-economic harms, 178
Organizations and associations, 180, 251
Prudential standing, 182
Suits by states, 181
Suits not based on taxpayer or citizenship status, 177–181, 250
Third-party standing, 181–182, 252
STATE ACTION
Generally, 125–127, 227–229
Acquiescence by state, 127
Civil rights laws, repeal of, 126
Commandment by state, 126, 228
Company towns and shopping centers, 125
Electoral process as constituting, 125
Encouragement by state, 126, 229
Entanglement by state, 127
Involvement by state, 126, 228
Joint participation by state as a private actor, 127
Licensing by state, 127, 229
Modern approach to, 125, 228
“Nexus” doctrine, 126
Parks and recreation, operation of, 125–126, 228
“Public function” approach, 125–126, 228
Racially-restrictive covenants, 126, 228
State “exclusivity” requirement, 126, 228
“Symbiosis” between state and private actor, 126, 229
Warehouseman’s lien as, 126
STRICT SCRUTINY
See EQUAL PROTECTION
SUBSTANTIVE DUE PROCESS
See DUE PROCESS OF LAW
SUICIDE
See DUE PROCESS OF LAW, RIGHT TO DIE
SUPREMACY CLAUSE
See PREEMPTION
SUPREME COURT’S AUTHORITY
Generally, 49–50
Congress’ control of, 50
Review of state court decisions, 49
Independent and adequate state grounds, 49
Right to judge statute’s constitutionality, 49
SUSPECT CLASSIFICATIONS
Generally, 97–100, 217, 219
National origin, 97, 221
Purposeful discrimination required, 97, 219
Race, 97, 219
Wealth as, 117, 225
TAKING CLAUSE
Generally, 118–120, 225
Denial of all economically viable use, 226
Diminution in value, 120
Landmark preservation, 119–120, 225
“Public use” required, 121–122
States subject, 119
Taking distinguished from regulation, 118, 226
Zonging regulations, 226
Zoning regulations, 119
TAXATION
Apportionment of direct taxes, 58
Cumulative burdens, 70
Exports not taxable, 58
Federal government’s power of, 59
Immunities from, 74
Regulatory effect of, 58, 196
States, power of, 70
Discrimination against commerce, 70
TENTH AMENDMENT
Impairment of state’s essential functions, 57, 196
Law-making mechanisms, use of states’, 57, 196
THIRTEENTH AMENDMENT
Congress’ power to enforce, 127–131, 230
Private conduct reachable under, 129, 230
Self-executing scope of, 129
TREATY POWER
Generally, 63, 197
Executive agreements, 63, 197
VAGUENESS
Generally, 138, 235
VOTING RIGHTS
As being fundamentally right, 114, 223
Ballot access, 116, 224
Candidate eligibility rules, 116, 224
Discriminatory purpose required, 97, 220
Election districts, drawing of, 106
Election districts, racially motivated, 106
Electoral process as state action, 125
Felons, 115
Filing fees payable by candidates, 116
Gerrymandering, 106, 188
Interested-voter limitations, 115
Poll tax, 114
Residency requirements, 115
Statutory protection of, 128
Voter ID requirement, 115, 224
VOTING RIGHTS ACT, 130
WAR POWERS
Commitment of the armed forces, 205