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SUBJECT MATTER INDEX

SUBJECT MATTER INDEX

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, 163164, 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, 150151

Monument, display of as government speech, 158, 239

Non-communicative impact aimed at speech, 233

Obscenity, 151152, 241

See also OBSCENITY

Offensive words, 144, 237

Overbreadth

See OVERBREADTH

Political campaign speech, 154156

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, 159161

Public forum, 139, 146147, 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, 146148, 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, 138139, 235

See also “Advocacy of illegal acts” under this main heading

Symbolic expression, 148, 240

Time, place and manner regulations, 139148, 232234

General test for validity, 139141, 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, 109110, 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, 5355

Modern trend, generally, 5355

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, 5455

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, 175188, 250255

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, 150151

MOOTNESS

 Generally, 182183, 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, 151152, 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, 154156

POLITICAL QUESTIONS

 Generally, 186188, 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, 7173, 200201

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), 7576, 203204

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, 187188

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, 6466

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, 118120, 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, 112113, 209, 211, 212, 218

State bans on as equal protection violation, 224

SCHOOL SUSPENSION

Due process and, 91

SECOND AMENDMENT, 123124

SEGREGATION

See EQUAL PROTECTION

SEPARATION OF POWERS

 Generally, 6168, 205207

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, 6367, 206

By Congress, 206

By President, 6367

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, 5960

Conditions set on use of federal funds, 5960

Distinct enumerated power, existence as, 59

“General welfare” requirement, 6061

Regulation, attempt to use for, 61

STANDING

 Generally, 176182, 250251

“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, 177181, 250

Third-party standing, 181182, 252

STATE ACTION

 Generally, 125127, 227229

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, 125126, 228

“Public function” approach, 125126, 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, 4950

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, 97100, 217, 219

National origin, 97, 221

Purposeful discrimination required, 97, 219

Race, 97, 219

Wealth as, 117, 225

TAKING CLAUSE

 Generally, 118120, 225

Denial of all economically viable use, 226

Diminution in value, 120

Landmark preservation, 119120, 225

“Public use” required, 121122

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, 127131, 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

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