Constitutional Law, 20th Edition [20 ed.] 1684672155, 9781684672158

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vi

PREFACE TO THE 'l'wENTIETH EDITION

Judge Jeffrey Sutton for suggestions on state constitutional law; to Dan Coenen for very thoughtful detailed comments on the whole manuscript; and to Charles Fried, Martha Minow, and Laurence Tribe for many helpful suggestions over the years. Finally, we are thankful for excellent research assistance from Harleen Gambhir, Clare Duncan, Medha Gargeya, Sarah Grant, Victoria Hall-Palerm, Cate McCaffrey, Zach ZhenHe Tan and Grace Wallack. We hope that you will enjoy teaching from this edition of the casebook, and that Gerald Gunther would continue to recognize his great presence in its pages. NOAH FELDMAN CAMBRIDGE, MASSACHUSETIS KATHLEEN M . SULLIVAN

NEW YORK, NEW YORK June 2019

SUMMARY OF CONTENTS PREFACE TO THE TwENTIETH EDITION .............. .. ....... .. ..... ...... .... ....... ............... V T ABLE OF CASES ····························································································· XXV TABLE OF AUTHORITIES .......... ...... .... .... ...... .. ................ ..... .. ...... ..... .. . ......... XXXIX THE CONSTITUTION OF THE UNITED STATES OF AMERICA ............ .... ... .......... LIX

Chapter 1. The Supreme Court's Authority and Role ............ ....... .... .. . 1 Section 1. The Power of Judicial Review ...... .. .... ......................................... .... 1 Section 2. Supreme Court Authority to Review State Court Judgments ... 16 Section 3. Judicial Exclusivity in Constitutional Interpretation .............. . 20 Section 4. Constitutional and Prudential Limits on Constitutional Adjudication: The "Case or Controversy" Requirements ................ ..... 34 Chapter 2. Federalism: History and Principles ........ ........................... 75 Section 1. Enumerated Powers and McCulloch v. Maryland ........... .... ....... 77 Section 2. The Limits of the Necessary and Proper Clause ........ ............. .. . 91 Section 3. The Location of Sovereignty in the Federal System .................. 97 Section 4. Values Served by Federalism ....................... ................... ......... . 107 Chapter 3. The Commerce Power and Its Federalism-Based Limits ........................ .................. .... ....... ..... ....... ..... ...................... .. ...... 113 Section 1. The Commerce Power Before the New Deal.. .......... ........ .... ... .. 114 Section 2. The Commerce Power and the New Deal ................ ................. 122 Section 3. 'l'he Commerce Power After the New Deal ........... ........... .... ..... 128 Section 4. The Contemporary Commerce Power ................... .................... 139 Section 5. The Tenth Amendment as an External Constraint on the Federal Commerce Power ..... .... ....... .............. .... ................. ...... ....... ..... 167 Section 6. State Sovereign Immunity and the Eleventh Amendment ..... 183 Chapter 4. The National Taxing and Spending Powers and Their Federalism-Based Limits .......... ................. .................. .... ........ ........ 191 Section 1. The Taxing Power as a Regulatory Device ..... .. ............. ........... 191 Section 2. The Spending Power as a Regulatory Device ... ........ .... ..... ...... . 200 Chapter 5. Federal Limits on State Regulation of Interstate Commerce ............... .... ......................................................................... 221 Section 1. The Dormant Commerce Clause .. ............... ................... ........ .... 221 Section 2. The Interstate Privileges and Immunities Clause of Article IV ... ................... ............. .......... .. ... ..................................... ... ..... 271 Section 3. Congressional Ordering of Federal-State Relationships by Preemption and Consent .......................... ............................................ 27 Section 4. Other spects of Federal-State Relationships ......................... 290 Chapter 6. Separation of Powers ..... .. .... .. ...... .... ......... ..... .... :.. ............... 297 Section 1. Executive Assertions of Power .. ................... ................... .. ......... 29 Section 2. Congressional War and Treaty Powers, and th Implied Power over Foreign Affairs ..... .................. .... ....... ........ ...... ................... 333 vii

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section 3.

Executive and Congressional Discretion in Times of War or Te1Torism ............................................................................................... 341 section 4. Congressional Authority to Restrain and Enable the Executive ................................................................................................ 3 90 Section 5. Executive Privileges, Immunities and Congress's Power of Impeachment ......................................................................................... 424

Chapter 7. The Post-Civil War Amendments and the "Incorporation" of Fundamental Rights ...................................... 443

Section 1. Individual Rights Before the Civil War ..................................... 444 section 2. The Post-Civil War Amendments .............................................. 451 Section 3. The "Incorporation" of the Bill of Rights Through the Due Process Clause ....................................................................................... 465

Chapter 8. Due Process ............................................................................ 485

Substantive Due Process and Economic Liberties .................... 485 Section 2. substantive Due Process and Privacy ....................................... 509 S ection 3. Procedural Due Process and the Right to a Hearing ................ 604 S ection 4. Textual Guarantees of Economic Liberties: The Takings Clause and the Contracts Clause ......................................................... 611

section 1.

Chapter 9. Equal Protection ................................................................... 645

Section 1. Minimum Rationality Review of Economic Regulation ......... ... 646 S ection 2. Race Discrimination ................................................................... 656 section 3. Sex Discrimination ..................................................................... 755 S ection 4. Discrimination Based on Other Potentially "Suspect" Classifications ........................................................................................ 793 S ection 5. The "Fundamental Interests" Branch of Equal Protection ...... 805

Chapter 10. Congress's Civil Rights Enforcement P owers ............. 853

S ection 1. The Civil Rights Statutes of the Reconstruction Era ............... 853 Section 2. The Requirement of State Action .......................................... .... 856 Section 3. Congressional Power to Reach Private Interference with Constitutional Rights .......................................................................... .. 878 Section 4. Congressional Power to Enforce Civil Rights Under the 14t h and 15th Amendments ...................................•• ....• ......................... ..... .. 888

Chapter 11. Freedom of Speech-Categories of Speech-Degrees of Protected Expression ....................................................... ............ 931

Section 1. Section 2 . S ection 3. Section 4. Section 5 . Secti on 6. S ection 7.

Free Speech: An Overview ......................................................... 931 Incitement to Violence or Subversion ........................................ 946 Fighting Words and Hostile Audiences .............................. ....... 985 Injury to Reputation, Sensibility, Dignity, Equality .............. 1 002 Sexually Explicit Expression ................................................... 1055 Spe ech in New Media ............................................................... 1099 Commercial Speech ................................................................... 1132

Chapter 12. Freedom of Speech-Modes of Regu lation and Standards of Review ...................• • ............................................ .... .. 115 9

Section 1. Content-Based and Content-Neutral Regulations ......... ........ 1159

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Section 2. Government Power to Limit Speech in Conferral of Benefits as Regulator and Employer ... ................ ..... .... .................................... 1210 Section 3. Overbreadth, Vagueness and Prior Restraint ............... ......... 1347 Chapter 13. Beyond Speaking-Compelled Speech, Association, Money and the Media ...................... ......... .. ... .......... .... ......... ...... .... 1389 Section 1. Compelled Speech: The Right Not to Speak ....................... .... 1389 Section 2. Freedom of Expressive Association .... .......... ....... ....... .... ........ . 1418 Section 3. Money and Political Campaigns ............. ........................ ......... 1460 Section 4. Journalism and Media .................... ......................... ................ 1513 Chapter 14. The Religion Clauses: Free Exercise and Establishment ............. ... ...... ... .............. ... ... ................ ... ...... .... .... ..... 1557 Section 1. A Brief History of the Religion Clauses ..... .............. ....... ........ 1558 Section 2. The Definition of "Religion" ........ .... ............... ................. .... ..... 1565 Section 3. The Free Exercise of Religion ........................... ........ ............ .. . 1570 Section 4. The Establishment Clause ........ .... .............. ............... ...... ....... . 1615 Section 5. Reconciling the Religion Clauses ............................................ . 1695 Appendix. Table of Justices ..................................... ... .. ... .......... .......... . 1711 INDEX ....... .. .................. .. .... ..... .. ........... .. .. .... .... ... ........ ...... .... ..... .. .... ..... .. .. .. 1719

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TABLE OF CONTENTS PREFACE TO THE TWENTIETH EDITION ....... ... ..... ................. ...... ....... ................. V TABLE OF CASES .... .. ......... ..... ... .... ....... ........ .................... ... ................ ............ XXV TABLE OF AUTHORITIES· ·· ······· ··········· ·· ···· ··································· ·· ······ ········ XXXIX THE CONSTITUTION OF THE UNITED STATES OF AMERICA .......... ...... .... ... ... .. . LDC

Chapter 1. The Supreme Court's Authority and Role ........................ .. 1 Section 1. The Power of Judicial Review ...... ..................... .... ........ .......... .... .... 1 Marbury v. Madison .................................................................. ................. 2 The Background and Meaning of Marbury v. Madison ................... ........ 9 Section 2. Supreme Court Authority to Review State Court Judgments ... 16 Martin v. Hunter's Lessee ....................... ... ........................................... . 17 Further Clashes Between Supreme Court and State Court Authority ................................................... ..................... .............. .... 19 Section 3. Judicial Exclusivity in Constitutional Interpretation .. ........ ..... 20 Cooper v. Aaron ........................ ............... .... .......................... .. ................ 21 The Authoritativeness of Supreme Court Decisions ............. ................ 22 Political Restraints on the Supreme Court .............. ... ....................... .. 30 Section 4. Constitutional and Prudential Limits on Constitutional Adjudication: The "Case or Controversy'' Requirements .......... ........... 34 Advisory Opinions ............... ..... ............................. ..... .... ......... .... .. .......... 35 Standing .... ................. ..... ............................................................. ........... 38 Lujan v. Defenders of Wildlife ................................................ .. ........ ...... 38 Massachlc.setts v. Environmental Protection Agency .......................... . 43 The Com,titutional and Prudential Elements of Standing .................. 47 Mootncds and Ripeness ....... ..... ........ ............. .............. .... .... .. .... .............. 58 Political Questions ........................ ........................................... ...... .... .... . 59 Baker v. Carr ....... ..... ....... .................. ... .............................................. ..... 60 Distinguishing Legal from Political Questions ................................. .... 66 Chapter 2. Federalism: History and Principles .. ..... ... .... ..................... 75 Section 1. E numerated Powers and McCulloch v. Maryland ...... ................ 77 McCulloch v. Maryland .... ......... ............ .............. .... ..... .............. ..... ...... .. 79 Section 2. The Limits of the Necessary and Proper Clause .. .... .......... ........ 91 United States v. Comstock ...................................... ......... ............. ......... 92 F ederalism-Based Limits on the Necessary and Proper Clause? ........ 94 Section 3. The Location of Sovereignty in the Federal System ......... ......... 97 Recent Challenges to the Location of Sovereignty in the Constitutional System ................ ............. .... ................................. 100 U .S. Term Limits, Inc. v. Thornton ................................ ..................... 101 Term Limits and McCulloch ............................................... .................. 105 Section 4. Valu~s Served by Federalism .................................................... 107 Chapter 3. The Commerce Power and Its Federalism-Based Limits ..... ........... .. ....................................... .. ............................. ........ .... 113 Section 1. The Commerce Power Before the New Deal ............................. 114 Gibbons v. Ogden .................................................................................. 114 xi

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Judicial Limits on the Commerce Power ................................. ..... .... ... 116 Hammer v. Dagenhart [The Child Labor Case] ............ ...... .... .......... .. 120 ection 2. The Commerce Power and the New Deal.. ................. ............ ... 122 Section 3. The Commerce Power After the New Deal ............... .... ...... ...... 128 NLRB v. Jones & Laughlin Steel Corp . ................................... .......... .. 129 United States v. Darby ..................................................... ......... ..... ... ... 131 Wickard v. F'ilburn .................................................................... ........... . 134 Judicial Deference Toward Exercise of the Commerce Power ..... ... ... 135 Section 4. The Contemporary Commerce Power ................. ........... ...... .... .. 139 United States v. Lopez ........................................................... .............. . 140 Rehnquist-Era Restrictions on the Commerce Power .............. .... ... ... 147 United States v. Morrison ............................... .................................... .. 148 The Commerce Power Strikes Back? ............. ............................ ....... ... 151 Gonzales v. Raich ... ............................................................................... 152 Commerce Clause Review Leading up to the Affordable Care Act .... 157 ational Federation oflndependent Business v. Sebelius .............. .. . 160 FIB and the Commerce Power ................................ ........ ........ .... ....... 166 Section 5. The Tenth Amendment as an External Constraint on the Federal Commerce Power ........................................... .......................... 167 New York v. United States ................................................... .... ............ 173 The Scope and Limits of the Anticommandeering Principle ...... ....... . 177 Section 6. State Sovereign Immunity and the Eleventh Amendment ..... . 183

Chapter 4. The National Taxing and Spending Powers and The ir. Federalism-Based Limits ........................................................... ...... 191 Section 1. The Taxing Power as a Regulatory Device ................. ........ ....... 191 Child Labor Tax Case [Bailey v. Drexel Furniture Co.] ..... ........... ..... 191 National Federation oflndependent Business v. Sebelius .. ... ...... ...... 196 The Taxing Power as a Federal Regulatory Device After NFIB ....... . 199 Section 2. The Spending Power as a Regulatory Device ................ ........... 200 United States v. Butler .................................................................. ....... 201 The Spending Power After the New Deal.. ............. ..... ........................ 204 South Dakota v. Dole ...... ......................................... ............. ... ..... .... .... 207 The Spending Power Between Dole and NFIB ............... .... ... ............. 21 1 National Federation oflndependent Business v. Sebelius .... .... ......... 212 The Spending Power After NFIB ................ ..................... ............ .... .... 21 7

Chapter 5. Federal Limits on State Regulation of Interstate Commerce ....................... .......... ................... .......... .................. ............ 221 Section 1. The Dormant Commerce Clause ........................................ ..... .. . 22 l The Nondiscrimination Principle ................................... ........ ..... .. .. ..... 222 The History of the Dormant Commerce Clause ......... .... ......... .. ...... .. .. 225 Gibbons v. Ogden .............. .... •···•· ............... •··........... . 226 The Nascent Dormant Commerce Clause ...............::::::::::::::::::: :::::::::: 2 28 Facial Discrimination Against Out-of-State Commerce ... ......... ..... .... 231 Philadelphia v. New Jersey .................... ........ .................... .......... 2 31 Home Processing Req~irements ......... .... .... ........... ............ ...... ..... :::::::: 238 Dean Milk Co. v. Madison........ ........................... ... 239 C & A Carbone, Inc. v. Clarkstown ................ ....... ::::::::: :::: :::::::::: ::: ::::: 2 41

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United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority ........................................ ................ ........ 243 The Dean Milk-Carbone-United Haulers Trilogy ............................ ... 245 The Market Participant Exception .......... ........................ ................. ... 248 South-Central Timber Development, Inc. v. Wunnicke ..................... 248 The Theory and Limits of the Market Participant Exception ............ 252 Facially Neutral Laws with Protectionist Purpose or Effect .......... ... 253 Baldwin v. G.A.F. Seelig, Inc ......................................... ............ ......... . 254 H .P . Hood & Sons v. Du Mand ...................................... ..... .... .............. 255 Identifying Protectionism in Facially Neutral Laws .......................... 256 Balancing Facially Neutral Laws with a Disproportionate Adverse Effect on Commerce ...................................................................... 260 Kassel v. Consolidated Freightways Corp ....... .................................... 262 Balancing Interstate Harm Against Local Benefit ............................. 267 Section 2. The Interstate Privileges and Immunities Clause of Article IV .............................................................................. ................. 271 United Building & Construction Trades Council v. Mayor and Council of Camden ............................................................ ... .... .. ... 271 Th e Scope and Limits of Interstate Privileges and Immunities ........ 277 Section 3. Congressional Ordering of Federal-State Relationships by Preemption and Consent ........................... ........................................... 278 Congressional Preemption of State Regulation ................. ................. 278 Pacific Ga s & Elec. Co. v. State Energy Resources Conservation & Development Comm'n ............ ............. ......... ........................... ... ... 278 Modes of P-teemption Analysis .................. ........................... ................ 283 Congressional Consent to State Regulation ... ......................... ......... ... 287 Section 4. Oth er Aspects of Federal-State Relationships ......................... 290 State Taxation of Interstate Business and Income .......................... .. 290 Intergover n mental Tax Immunities ............... ..... ................................ 293 Intergovernmental Regulatory Immunities ............. ............ ............... 294 Mutual Obligations Among the States .. .. ................. ... ..... ................... 295 Chapter 6. Separation of Powers .......... ..... .... ....... ......... .............. .......... 297 Section 1. Executive Assertions of Power .......... ................... .... ......... ......... 29 Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] ....... ..... ............. ..... ........... ................................... ..... .......... .... 29 Executive Authority to Make ational Domestic Policy .......... ..... ..... 306 Zivotofsky v . Kerry .. ........ ................ ....................... ............. .................. 309 Executive Authority over Foreign and Military Affairs ... .................. 315 Dames & Moore v. Regan ............. .... ..................... .... ..... .............. ........ 317 Dames & Moore in Light of Youngstown ..... .... .... ........................... ..... 321 Executive Power, Immigration and Religious Bias ............................ 324 Section 2. Congressional War and Treaty Powers, and the Implied Pow r over Foreign Affairs .......... ........ ......... .. ....... ..... .... ...................... 333 Woods v. Cloyd W. Mill r Co ........................ ......... ............................... 333 Missouri v. Holland ..... ..... ............. ............................... ......................... 335 The War and Treaty Powers ............................................................ .... 336

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ection 3. Executive and Congressional Discretion in Times of War or Terrorism ........................................................................................... .... 341 The President, Congress and War Powers ............................. ..... .... .... 341 Emergency Constitutionalism .............................................................. 345 Executive Detention and Trial of "Enemy Combatants" ................ .... 350 Ex parte Quirin ................................................................. .................... 353 From Quirin to the 9/11 Response ....................................................... 355 Hamdi v. Rumsfeld ................................................................................ 360 The Scope of Hamdi .............................................................................. 369 Hamdan v. Rumsfeld ................................................................. ............ 372 The Aftermath of Hamdan ............................................................... .... 378 Boumediene v. Bush ....................................................................... .... ... 379 Assessing Hamdi, Hamdan and Boumediene ..................................... 388 Section 4. Congressional Authority to Restrain and Enable the Executive................................................................................................ 390 Congressional Control over the Actions of the Executive Branch ..... 391 INS v. Chadha ....................................................................................... 393 Bicameralism and Presentment ........................................................... 399 Clinton v. ew York ...................................................................... ........ 401 Congressional Constraints on Appointment and Removal of Executive Officers .......................................................................... 404 Bowsher v. Synar .................................................................................. 409 Morrison v. Olson ............................................................................... ... 414 The Aftermath of Morrison v. Olson .................................................... 419 Section 5. Executive Privileges, Immunities and Congress's Power of Impeachment ......................................................................................... 424 United States v. Nixon .......................................................................... 425 The Scope and Limits of Executive Privilege ...................................... 427 Clinton v. Jones ..................................................................................... 429 The Implications and Aftermath of Clinton v. Jones .......................... 435

Chapter 7. The Post-Civil War Amendments and the "Incorporation" of Fundamental Rights ...... ......... ...... ... .............. 443 Section 1. Individual Rights Before the Civil War ................................... .. 444 Barron v. Mayor and City Council of Baltimore ............................... .. 444 Dred Scott v. Sandford .......................................................................... 446 The Aftermath of Dred Scott ......................................... ....................... 449 Section 2. The Post-Civil War Amendments .............................................. 451 Slaughter-House Cases ............................. ............................... ............. 451 The Meaning of the Slaughter-House Cases ...................................... . 455 Saenz v. R.oe ........................................................................................... 459 Saenz v. Roe and the ''Right to Travel" ............................................... 462 ection 3. The ''Incorporation" of the Bill of Rights Through the Due Process Clause .......................... •·•••··•··•··•···•·•·•·•··••••·••·•• ......................... 465 D""'caD V WUisiana ........ ,..... ·· ··· ··· ··· ····· ·· ·········· ·· ····· ··· ·· ··· ··· 468 T-corporation Since Duncan ................................................ 471 lllJ ••••••·•••••••••· McDonald v City of Chicago.............................................. 4 75 The Meanin~ and Implications of Heller and McDonald .. :::::::::::::::::: 482 \A..1..1!

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Chapter 8. Due Process ............................................ ............... ................. 485 Section 1. Substantive Due Process and Economic Liberties ................... 485 Lochner v. New York ............................................................................ 489 The Meaning and Implications of Lochner.......................................... 495 Nebbia v. New York .............................................................................. 500 The Demise of Lochner After the New Deal........................................ 501 Minimum Rationality Review of Economic Legislation ..................... 504 Williamson v. Lee Optical Co. .............................................................. 504 Closer Scrutiny of Economic Classifications? ..................................... 506 Section 2. Substantive Due Process and Privacy ....................................... 509 Substantive Due Process, Childbearing and Contraception .............. 510 Griswold v. Connecticut ........................................................................ 511 The Meaning and Implications of Griswold ........................................ 518 Substantive Due Process and Abortion ............................................... 520 Roe v. Wade ........................................................................................... 521 The Meaning and Implications of Roe ................................................. 524 Planned Parenthood of Southeastern Pa. v. Casey ............................ 531 The Meaning and Implications of Casey ............................................. 538 Gonzales v. Carhart .............................................................................. 541 Whole Woman's Health et al. v. Hellerstedt, Commissioner, Texas Dep!utment of State Health Services, et al................................. 544 Substantive Due Process and Marriage and Family Relationships ................................................................................. 547 Substantive Due Process, Sexuality and Hybrid Due Process-Equal Protection Rights ........................................................................... 553 Romer v. Evans ..................................................................................... 556 The Meaning and Implications of Romer ............................................ 561 Lawrence v. Texas................................................................................. 563 The Meaning and Implications of Lawrence ....................................... 571 United States v. Windsor ..................................................................... 575 The Meaning and Implications of Windsor ......................................... 582 Obergefell v. Hodges ............................................................................. 583 The Meaning and Implications of Obergefell ...................................... 591 Substantive Due Process and Rights over the Timing and Circumstances of One's Death...................................................... 592 Washington v. Glucksberg.................................................................... 595 The Meaning and Implications of Glucksberg .................................... 602 Section 3. Procedural Due Process and the Right to a Hearing ............... 604 . . Defimmg "Proper ty" and "L 1berty" ....................................................... 604 What Process Is "Due"? ........................................................................ 60 Section 4. Textual Guarantees of Economic Liberties: The Takings Clause and the Contracts Clause......................................................... 611 The Takings Clause .............................................................................. 611 The "P ublic Use" Requireme nt............................................................. 612 Kela v. City of ew London .................................................................. 61-1 The Meaning and Implications of Kel a ................................................ 619 Regulatory "Takings" ............................................................................ 622 Pennsylvania Coal Co. v. Mahon ......................................................... 623 The Meaning and Implications of Pennsylvania (' oal ........................ 625

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The Contracts Clause .................................................•·····•·•······••· •····· ... 636 Home Building & Loan Ass'n v. Blaisdell ..................... ..•····••··••· •· ... .... 638 The Scope and Limits of Blaisdell ................................. ..••. ••••••• ......... .. 640 Chapter 9. Equal Protection ..... ....... .... .... ... ........ ............. .............. .... .... . 645 ection 1. Minimum Rationality Review of Economic Regulation ..... ....... 646 Railway Express Agency v. ew York ................................................. 647 Judicial Deference to Economic Regulation ........ ............. ............ ....... 649 Should Rationality Review Be Stricter? .................... .......................... 654 ection 2. Race Discrimination ...................................................... ..... ........ 656 The Unconstitutionality of Racial Segregation ........................... ........ 656 Brown v. Board of Education [Brown I] ...................................... ......... 661 The Meaning and Implications of Brown v. Board .................... ...... ... 663 Implementing Brown v. Board ............................................................. 667 Eliminating Other Vestiges of Segregation ................................ ......... 671 Loving v. Virginia ................................................................................. . 672 Facial Discrimination Against Racial Minorities ............... ................. 676 Racially Discriminatory Purpose and Effect ......................... .............. 680 Washington v. Davis ............................................. ................................ 684 The Meaning and Implications of Washington v. Davis .................... . 687 Affirmative Action and Race Preferences ..................... ...... ................ . G91 Regents of Univ. of California v. Bakke ........................................ ..... .. 692 Bakke and Amicus Briefs .................................. .................................. . 698 Race Preferences in Employment and Contracting ................... ....... .. li99 Adarand Constructors, Inc. v. Pena ............................................. ....... . 704 Affirmative Action After Croson and Adarand ...................... ............. . 709 Grutter v. Bollinger ................................. ......................................... ..... 710 Gratz v. Bollinger ........................................................... .................... ... '719 The Meaning and Implications of Grutter and Gratz .................. ....... 722 Fisher v. University of Texas at Austin et al. ............................ ........ . 729 Racial Diversity in K- 12 Public Education ................................ ......... 735 Parents Involved in Community Schools v. Seattle School District .............................................................. .............. ........... ... . 736 The Meaning and Implications of Parents Involved ................. .. ........ 7 44 Race Preferences in Electoral Districting .................................. .......... 7 44 Shaw v. Reno [Shaw I] ............ ...... .................. ......... ............................. 7 45 The Aftermath of Shaw I ....... .............................................................. . 750 Section 3. Sex Discrimination ..................................................................... 755 Discriminating on the Basis of Sex ................................... ............... .... 756 Craig v. Boren ..................... ................................................................... 761 Sex Equality After Craig v. Boren ......................................... .............. 765 United States v. Virginia .................................... ............. ..... ................ 768 Sex Equality, Sex Differences and the Question of Gender .......... .... . 775 Sex-Based Purpose and Effect ...................................... ........................ 786 Sex-Based Preferences: Affirmative Action for Women ....... ..... .......... 78 9 tion 4. Discrimination Based on Other Potentially "Suspect" Classifications ........................... •······························••········. .......... ········· 793 Sexual Orientation ·-························································· ···················· 793 Alienage ...................................................................................... 794

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Disability, Age, Poverty .................. .... ........... ........................... ............ 798 Cleburne v. Cleburne Living Center, Inc .............. .... ... ....................... 799 The Cabining of Suspect Classifications .. .... ... ... ....... ......................... . 803 Section 5. The "Fundamental Interests" Branch of Equal Protection ...... 805 Fundamental Interest in Voting ............... .... ...... ........................ ......... 805 Harper v. Virginia State Board of Elections ... ....... ...................... .. ..... 806 Kramer v. Union Free School District No. 15 ..................................... 808 Strict Scrutiny of Vote Denials ................. .... ...... ..... ............. .... ........... 809 Vote "Dilution": Reapportionment and Gerrymandering ................... 813 Reynolds v. Sims ...... .......... ...... .................. ....... .... ...... .... ... .... ....... ........ 814 Judicial Scrutiny of Political Gerrymanders ... ................. ..... ....... ....... 819 Davis v. Bandemer ....... ......................................................................... 820 Political Gerrymanders After Davis ...... ................................... ..... ...... 822 Fundamental Right of Access to Courts ... ........ .... ...... ... ..... ...... ........... 828 Economic Barriers and the Criminal Process ..................................... 828 Economic Barriers and Civil Litigation ...................... ............ ............. 832 M.L.B. v. S.L.J .. ...................... ... .............................................. ............ .. 834 No Fundamental Interest in Food, Shelter, Education ...... ................ 839 San Antonio Independent School Dist. v. Rodriguez ........... ...... ..... .... 841 Chapter 10. Congress's Civil Rights Enforcement Powers .... ... .... .. 853 Section 1. Th•3 Civil Rights Statutes of the Reconstruction Era ............... 853 Section 2. The Requirement of State Action ........ .............. ........................ 856 Civil Right.s Cases ......................................................... ................... ..... 856 The Scope and Limits of State Action After the Civil Rights Cases ................................... ........... ................................................ 860 Shelley v. Kraemer ................................................................................ 863 State ction After Shelley v. Kraemer ................................................ 865 Jackson v. Metropolitan Edison Co . ................................................... . 870 The State Action Doctrine After Moose Lodge and Jackson .............. 872 Section 3. Congressional Power to Reach Private Interference with Constitutional Rights .............................................. ............ ........... ... .... 878 United States v. Guest.. ....... .......... ................................................ ....... 878 Criminal Sanctions for Private Interference with Fourteenth Amendment Rights ....................................................................... 881 Civil Sanctions for Private Interference with Fourteenth Amendment Rights ....................................................................... 883 Congressional Power to Reach Private Conduct Under the Thirteenth Amendment ............................ ................... ....... .......... 885 Jones v. Alfred H. Mayer Co ................................ ...... .... ...................... 885 Thirteenth Amendment Powers and the 1866 Civil Rights Act ........ 6 Section 4. Congressional Power to Enforce Civil Rights Under the 14th and 15th mendments ....................... ..... ... ............. .... ....................... .. Congressional Protection of Voting Rights .. ............... ....................... .. Katzenbach v. Morgan ......................................................................... . The Meaning and Aftermath of Katzenbach v. Morgan. .................... 97 City of Boerne v. Flores ........................................................................ 902 The Meaning and Scope of Boerne ....................................................... 907 Shelby County v. Holder ....................................................................... 909

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The Voting Rights Act After Shelby County .......................... ........ ...... 913 United States v. Morrison ................................................ .......... ..... ...... 915 The Meaning and Scope of Morrison ........ ........................ ......... ........ ... 917 Chapter 11. Freedom of Speech-Categories of Speech-Degrees of Protected Expression ........ ......... ... ......... ...... .. .............................. 931 Section 1. Free Speech: An Overview ................................................ .. ....... 931 First Amendment History ............................... ...................................... 932 First Amendment Theory .................................................................. .. . 935 First Amendment Jurisprudence ................................................ ... ...... 940 Section 2. Incitement to Violence or Subversion .............................. .......... 946 Schenck v. United States ............................................................. ......... 94 7 - The "Clear and Present Danger" Test ................. ....... .......... ................ 948 Abrams v. United States ................................................................. ...... 950 Alternatives to Clear and Present Danger .......... .......................... ... ... 954 Masses Publishing Co. v. Patten ................................ ..................... ... .. 956 Comparing the Holmes and Hand Approaches ................................... 959 Gitlow v. ew York .......................................................................... ..... 961 Whitney v. California ................................................................... ......... 965 Criminal Anarchy and Syndicalism Laws ........................... ....... ......... 969 Dennis v. United States ........................................................... .... ....... .. 970 "Clear and Present Danger" After Dennis .................................. ......... 976 Brandenburg v. Ohio .................................................................... .... ... .. 978 The Meaning and Implications of Brandenburg ................................. 981 Section 3. Fighting Words and Hostile Audiences .................. ............. ...... 985 Fighting Words ................................................................................ .... .. 986 Chaplinsky v. New Hampshire ..................................................... 986 Fighting Words Since Chaplinsky ......................... ...... ........ ........ . 987 Hostile Audiences and the Heckler's Veto ..................................... .... .. 990 · Early Hostile Audiences Cases .. .......................................... ........ . 990 Feiner v. New York .................... .................................... ... ...... ....... 993 Distinguishing Feiner in Later Cases ................................ .......... 995 Cohen v. California ............................................................... ...... ... 998 Offensive Speech.................................. ... ............... ........ .......... .... 1002 Section 4. Injury to Reputation, Sensibility, Dignity, Equality .............. 1002

Libel. ..................................................................................................... 1003 Beauharnais v. Illinois ........................... ...................... ........ ... .... 1003 The Legacy of Beauharnais ...................................... ....... ........... 1005 First Amendment Limits on Libel .................................. ........ .... 1006 New York Times Co. v. Sullivan ................................................. 1006 The Meaning and Implications of New York Times .................. 1009 The Scope of New York Times .................................................... 1013 Gertz v. Robert Welch, Inc ..... ••••••••••.... •.. •................................... 1o15 Defamation of Private Parties After Gertz ................................ l0l9 Privacy Torts.................................................................... ........ 1020 Bartnicki v. Vopper .................................................................... 1023 Intentional Infliction of Emotional Distress .......................... :::::::::::: 1027 Hustler Magazine v. Falwell ....................................................... 1028 nyder v. Phelps ........................................................... 1030

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H ate Speech ......................................................................... ................ 1033 Collin v. Smith ....... .............................. ........................................ 1033 R.A.V. v. City of St. Paul ................. .............. ..................... ........ 1038 The Meaning and Implications of R.A.V .... ...... ...................... .... 1044 Virginia v. Black ................. .................. ....... ..................... ........... 1049 Section 5. Sexually Explicit Expression ............ .... ......... ....... ..... ... ..... .. .... 1055 Obscenity ............................................ ............. ... ................... .............. 1056 Roth v. United States; Alberts v. California ........ .......... ... ........ 1056 Obscenity Between Roth and Miller ...... .......................... .......... 1058 Miller v. California ............................................. .... ..................... 1061 Paris Adult Theatre I v. Slaton ....................................... ....... .... 1064 Obscenity Law After Miller and Paris ..................... .................. 1069 Sexually Explicit but Nonobscene Expression .......... ...... .................. 1074 Regulating Pornography as Subordination of Women ...... ....... 1076 American Booksellers Ass'n v. Hudnut ......... ... ................ .... ..... 1076 Hudnut and the Social Harms of Pornography ................... ...... 1080 Nudity Bans ........... ................................................................. ..... 1081 Erznoznik v. Jacksonville .............. ........... ................. .... ....... ..... . 1082 Nudity Bans After Erznoznik ......................... ....... ..... ........ ...... .. 1084 Zoning Commercial Sexual Expression ............................. ........ 1085 Young v. American Mini Theatres .............................. .............. . 1085 Renion v. Playtime Theatres, Inc. ............................................. 1089 City of Los Angeles v. Alameda Books, Inc............................... 1090 Zoning Laws and Secondary Effects ........................... ............... 1094 Child Pornography .............. .................................................... .... ........ 1094 New York v. Ferber .............. ... ............................................... ..... 1095 Child Pornography as Unprotected Speech ............................... 1098 Section 6. Speech in New Media .... ................................. .......................... 1099 Indecent and Sexual Speech in New Media ...................................... 1100 FCC v. Pacifica Foundation ............................................. ........... 1100 The Limits of Pacifica .................... ............ ....... ....... .... ............... 1105 Sable Communications, Inc. v. FCC .......................................... 1108 Total Bans on Indecent Speech on Cable and Online .... ....... .... 1109 Reno v. American Civil Liberties Union .............. ...................... 1111 Online Regulations After Reno ......... .......................... ......... ...... 111 7 Ashcroft v. Free Speech Coalition ..... .... .... ......... .. ... .... .. .. .... . ..... . 1121 Violent Speech in New Media ......... ................................................... 1126 United States v. Stevens ................. .................. ......... .. ............... 1126 Regulating Violent Speech in ew Media After Stevens ......... 112 Brown v. Entertainment Merchants Ass'n ....... ......................... 1129 Section 7. Commercial Speech ....................... ....... .................................... 1132 Virginia Pharmacy Board v. Virginia Citizens Consumer Council .......................................................... .. ............................. 1133 Commercial Speech and First Amendment Theory .......................... 1137 Commercial Speech After Virginia Pharmacy .................................. 1140 Central Hudson Gas v. Public Service Comm'n ........................... ..... 1142 Commercial Speech Regulation After Central Hud on .................... 1145 44 Liquormart, Inc. v. Rhode Island ...... ............................................ 114 Commercial Speech Regulation After Liquormart ........................... 1152

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The Voting Rights Act After Shelby County ..................................... ... 913 United States v. Morrison ......................... .................................. ......... . 915 The Meaning and Scope of Morrison ............................... ..................... 91 7 Chapter 11. Freedom of Speech- Categories of Speech-Degrees of Protected Expression .. .. ...... ....... .. ............... ..... .. .......... ..... .. ..... .... 931 Section I. Free Speech: An Overview .................................................. ....... 931 First Amendment History ........................................................ ....... .. .... 932 First Amendment Theory ....................................................... .... ..... ..... 935 First Amendment Jurisprudence ............ ......................... .. ........ .......... 940 Section 2. Incitement to Violence or Subversion .............................. .......... 946 Schenck v. United States ...................................................................... 94 7 , The "Clear and Present Danger" Test ....................... .................... ....... 948 Abrams v. United States ................................................ ............ .... ....... 950 Alternatives to Clear and Present Danger .......................................... 954 Masses Publishing Co. v. Patten ....................................................... ... 956 Comparing the Holmes and Hand Approaches ...................... .... ......... 959 Gitlow v. ew York ...................................................................... .. .... ... 961 Whitney v. California .................................................................. .......... 965 Criminal Anarchy and Syndicalism Laws ................ ................. .... ...... 969 Dennis v. United States ....................... .............................................. ... 970 "Clear and Present Danger" After Dennis .................................... ....... 976 Brandenburg v. Ohio ...................................................... ............. .... .... .. 978 The Meaning and Implications of Brandenburg ................................. 981 Section 3. Fighting Words and Hostile Audiences ........................ ... ........ .. 985 Fighting Words ............................................................ ............ ............ .. 986 Chaplinsky v. New Hampshire ....................................... .............. 986 Fighting Words Since Chaplinsky ............................................. ... 987 Hostile Audiences and the Heckler's Veto ........................................... 990 · Early Hostile Audiences Cases ................................... ................ .. 990 Feiner v. New York ........................ ........................... .................. ... 993 Distinguishing Feiner in Later Cases ................................ .......... 995 Cohen v. California .......................................... ........................... ... 998 Offensive Speech..................................................................... ..... 1002 Section 4. Injury to Reputation, Sensibility, Dignity, Equality .. ............ 1002 Llbel. ............................................................................ ......................... 1003 Beauharnais v. Illinois .......... ............. ................................. ........ 1003 The Legacy of Beauharnais ............... ......................... ... ............. 1005 First Amendment Limits on Libel.. ........................................... . 1006 ,. New York Times Co. v. Sullivan ................................................. 1006 The Meaning and Implications of New York Times .................. 1009 The Scope of New York Times ................. ................................... 1013 Gertz v. Robert Welch, Inc .......................................................... 1015 Defamation of Private Parties After Gertz ........................... .... . 1019 Privacy Torts ............................................................................... 1020 Bartnicki v. Vopper ......................................................... .. ...... 1023 Intentional Infliction of Emotional Distress .......................... :::::::::::: 1027 Hustler Magazine v. Falwell ....................................................... 1028 Snyder v. Phelps ................................. :....... .................. 1030

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Hate Speech ........ ............... .................................................................. 1033 Collin v. Smith ....................................................... ...................... 1033 R.A.V. v. City of St. Paul ........................ ................................ ... . 1038 The Meaning and Implications of R.A.V .... ................................ 1044 Virginia v. Black .... ........................ ... .................. .... ... .................. 1049 Section 5. Sexually Explicit Expression ............................................ ....... 1055 Obscenity .............................................................. .......... .............. ....... 1056 Roth v. United States; Alberts v. California ............... .............. 1056 Obscenity Between Roth and Miller .......... .................. .............. 1058 Miller v. California.... ................................................ ....... ........... 1061 Paris Adult Theatre Iv. Slaton .................................... .............. 1064 Obscenity Law After Miller and Paris ....................................... 1069 Sexually Explicit but Nonobscene Expression .................................. 1074 Regulating Pornography as Subordination of Women ........... .. 1076 American Booksellers Ass'n V. Hudnut ·· ··· ·················· ·· ·····•• 1076 Hudnut and the Social Harms of Pornography ......................... 1080 Nudity Bans ................................................................................. 1081 Erznoznik v. Jacksonville ...... ......................................... ............ 1082 Nudity Bans After Erznoznik ..................................... ................ 1084 Zoning Commercial Sexual Expression ..................................... 1085 Young v. American Mini Theatres ..................................... ... ..... 1085 Renton v. Playtime Theatres, Inc ................... ........... ................ 1089 City of Los Angeles v. Alameda Books, Inc............................... 1090 Zoning Laws and Secondary Effects .............................. ............ 1094 Child Pornography .............................................................................. 1094 New York v. Ferber ..................................................................... 1095 Child Pornography as Unprotected Speech ......... ........ .............. 1098 Section 6. Speech in New Media ............................................................... 1099 Indecent and Sexual Speech in New Media ...................................... 1100 FCC v. Pacifica Foundation .......................... .............................. 1100 The Limits of Pacifica ................................................................. 1105 Sable Communications, Inc. v. FCC .......................................... 1108 Total Bans on Indecent Speech on Cable and Online ............... 1109 Reno v. American Civil Liberties Union .................................... 1111 Online Regulations After Reno ............................................... ... 1117 Ashcroft v. Free Speech Coalition .............................................. 1121 Violent Speech in New Media ........................................................... . 1126 United States v. Stevens .................................... ......................... 1126 Regulating Violent Speech in ew Media After Stevens ......... 112 Brown v. Entertainment Merchants Ass'n .............................. .. 1129 Section 7. Commercial Speech .................................................................. 1132 Virginia Pharmacy Board v. Virginia Citizens Consumer Council .................................................. .... .... ... .... ........................ 1133 Commercial Speech and First Amendment Theory .......... ................ 1137 Commercial Speech After Virginia Pharmacy .......... ........................ 1140 Central Hudson Gas v. Public ervice Comm'n ....................... ......... 1142 Commercial Speech Regulation After Central Hudson ....... ............. 1145 44 Liquormart, Inc. v. Rhode Island .................................................. 114 Commercial Speech Regulation After Llquormart ........................... 1152 00

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Chapter 12. Freedom of Speech-Modes of Regulation and Standards of Review ....... ............... .... ......................... .................... 1159 ection 1. Content-Based and Content-Neutral Regulations ............. ... . 1159 The Distinction Between Content-Based and Content-Neutral Laws ......................................................... .................................... 1160 Reed v. Town of Gilbert ............................................................... 1160 Content-Neutral Regulation and Symbolic Conduct ........................ 1176 United States v. O'Brien ..................... .... .................................... 1176 The Significance of O'Brien .............................................. ....... .. . 1180 Flag Desecration ............................................................................... ... 1184 Texas v. Johnson .............................................. ........................... 1186 Texas v. Johnson and Its Aftermath .. ..................................... ... 1192 Holder v. Humanitarian Law Project...................................... ... 1195 The Implications of Humanitarian Law Project ........................ 1202 ude Dancing .................................................................. :.... ....... 1204 Barnes v. Glen Theatre, Inc ................................. ....................... 1204 Applying Barnes .......................................................................... 1207 Speech Versus Conduct in Pricing ... .......................................... 1209 Section 2. Government Power to Limit Speech in Conferral of Benefits as Regulator and Employer ................................................................ 1210 Public Forums and Public Property ................................................... 1210 Early Public Forum Cases .......................................................... 1211 The ''Time, Place and Manner" Test .................................................. 1221 Public Order and Safety .............................................................. 1222 Aesthetics ..................................................................................... 1224 Members of City Council v. Taxpayers for Vincent ................... 1227 Clark v. Community for Creative Non-Violence ... ..................... 1232 Tranquility, Privacy and Repose ............................................ .... 1236 Invalid Time, Place, or Manner Regulation ............................... 1245 Speaker Access to Public Places Other than Traditional Public Forums ............................................................................... .. ........ 124 7 Libraries, Jails and Schools ........................................................ 124 7 Buses, Theaters and Military Bases .......................................... 1251 Public and Nonpublic Forums ............................................. .. ..... 1255 Religious Speech on Public Property ................................ ... ....... 1283 Spheres of Government Control: Government as Educator, Employer and Patron ............................................... .............. ..... 1290 Student Speech in Public Schools ........................................ .. ..... 1290 Speech and Association by Public Employees and Contractors ............................................................ ............... 1301 Public Employee Speech ... .......................................................... 1302 Connick v. Myers ....... ............................................... ................... 1304 Pickering and Connick Compared .......... ..... ...................... ......... 1307 Public Employee Political Party Affiliation ............................... 13 15 Speech-Restrictive Conditions on Public Funds .................... .... 1322 Agency for International Development v. Alliance for Open Society International, Inc .................................................... 1338 Matal v. Tam.................. .... ................................................ 1343 Viewpoint Discrimination ........................................... ..... ·········· 1347

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Section 3. Overbreadth, Vagueness and Prior Restraint ................. .. ..... 1347 Overbreadth ................. .................... ......... .............. ...... ...................... 1348 Vagueness ..... .. .... .......... .................................................. .... ....... .......... 1363 Prior Restraint ....................................... ........ ......... .......... ............... ... 1365 Licensing .. .................................... ............................................ ... . 1366 Injunctions ...... ................................ .............. ...... .... .................. ... 1373 Near v. Minnesota ex rel. Olson ......................... ... ................. .... 1374 Prior Restraint and National Security .............. ........................ 1377 New York Times Co. v. United States [The Pentagon Papers Case] ........... ....................... .......................................... .. ..... .. 1377 The Scope and Limits of Pentagon Papers ............... ........... ...... 1383 Prior Restraint and Fair Trial.. ....................... ....... .... .... ............ 1385 Chapter 13. Beyond Speaking-Compelled Speech, Association, Money and the Media .. ... .... .. ........... ... .... ............. .......... .. ... .. .......... 1389 Section 1. Compelled Speech: The Right Not to Speak ............... .... ........ 1389 Compelled Individual Speech ..................................................... ........ 1390 National Institute of Family and Life Advocates v. Becerra ........... 1399 State Compelled Access to Private Forums .............. ...... ................... 1402 Compelled Speech, Commercial Speech and Economic Regulation ........................... ......................................................... 1408 Compelled Speech and Private Discrimination .... .................. .......... 1414 Hurley v. Irish -American Gay, Lesbian and Bisexual Group of Boston [GLIB] ............................................................. ... ... ........ ... 1414 H urley's Reach ... .......... .... .... ......... ........... ............................. .............. 1416 Section 2. Freedom of Expressive Association ......... ............................. ... 1418 Compelled Disclosure of Membership .................. ............................. 1419 NAACP v. Alabama .............. ........... ..................... ................. .............. 1420 Compelled Disclosure in the Civil Rights Era .............. .................. .. 1421 Compelled Disclosure of Political Campaign Contributions ............ 1424 Restrictions on Organizational Activity ... ............................ ....... ...... 142 NAACP v. Button ............................................. ................................... 1428 The Meaning and Implications of NAACP v. Button ...... ..... ... ........ . 1430 Denial of Government Benefits Because of Association ................... 1436 Compelled Association: The Right ot to Associate ......... ........... ..... 1439 Boy Scouts of America v. Dale ............................................................ 1449 Dale and Compelled Speech and Association .................................... 1451 Freedom of Association and Political Party Procedures ................... 1452 Section 3. Money and Political Campaigns ......... .......... ............ .... .. ......... 1460 Buckley v. Valeo ....... ....... ................. ..................... ... ........ ........... ... ..... 1461 Buckley's Approach and Aftermath ....... ....... ... ................ ... ... .... ........ 146 Pa rties, Corporations, P Cs, uper PACs and Political Money ...... 1473 Enactment of and Constitutional Challenges to BCRA ............... .... 1479 McConnell v. Federal Election Commission .................... .................. 14 0 Federal Election omm'n v. Wisconsin Righ t to Life ....................... 14 6 McCon nell om pared with WRTL .. ... ................................................ 1490 itizens United v. Federal Election Commission ............................. 1494 After itizens United ............................................. ............. ................ l - 0 2 Mc u tch on v. F.E. . .................... ....... ...... .... ... ................................. 150 7

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Section 4. Journalism and Media .............................................................. 1513 Press Access to Government Information .......................................... 1515 Governmental Demands for Information from the Press ................. 1526 Branzburg v. Hayes ............................................................................. 1527 Journalistic Privilege After Branzburg ............................................. 1532 Laws Singling Out the Press .............................................................. 1534 Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue ........................................................................................ 1534 The Implications and Limits of Minneapolis Star ............................ 1538 The First Amendment and the Broadcast Media ............................. . 1543 Scarcity and Access ........................................................ ................ ..... 1544 The Information Age ...................................................................... ..... 1550

Chapter 14. The Religion Clauses: Free Exercise and Establishment .................. ......................... ..................... ....... ....... :.. .. 1557 Section 1. A Brief History of the Religion Clauses .............................. .... 1558 Section 2. The Definition of ''Religion" .................................................. .... 1565 The Limits of Judicial Inquiry into Religious Belief.. ....................... 1568 Section 3. The Free Exercise of Religion .................................................. 1570 Laws Discriminating Against Religion .................................. ............ 1570 Church of the Lukumi Babalu Aye v. City of Hialeah ..................... . 1571 Identifying Antireligious Purpose ............................................. ....... .. 1575 Religious Exemptions .......................................................................... 1580 Sherbert v. Verner ............................................................................... 1583 Limiting the Scope of Mandatory Religious Exemptions? ................ 1585 Employment Division, Dept. of Human Resources v. Smith ............ 1593 Smith and Religious Exemptions ...................................................... . 1601 Constitutional Law by Statute: Legislative Reponses to Smith ...... 1607 Section 4. The Establishment Clause ..................................................... .. 1615 Public Financial Aid to Religious Institutions .................................. 1616 Everson v. Board of Education ................................................... 1617 . . a ''Wall of separat·10n"?...................................... ..... 1619 MaintaJ.nmg Mueller v. Allen ........................................................................... 1623 Religious Inclusion in Public Subsidies: Everson vs. Mueller ................................................................................. 1627 Zelman v. Simmons-Harris ......................................................... 1635 The Meaning and Implications of Zelman .............. ........... ........ 1642 Religion in Public Schools ........... ••••••••••••••• •• ••.. ••••••• ••••• ....................... 1644 Prayer in Public Schools ............. •••.. ••••••••••••••. ••.......................... 1644 Lee v. Weisman ............................... ..................................... ........ 1648 Coercl·on vs. Endorsement........................................... ··············· 1655 Religion and the Public School Curriculum ............................... 1657 Edwards v. Aguillard ··········· .. ··············· .. ······•............................. 1660 Defining Religion vs. Science ................................... ................... 1664 Public Displays of Religious Symbols ................................................ 1665 Lynch v. Donnelly ........................................................................ 1671 Applying the Endorsement Test ................................................. 16 77 Mc reary County v. ACLU of Kentucky .................................. .. 1682 Van Orden v. Perry............................................................ 1688

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...

Section 5. Reconciling the Religion Clauses .. .... ... ... ... .......... .................... 1695 Values Reconciling the Religion Clauses ........... ............. .. ....... .......... 1695 Funding for Religious Education and Institutions ....... .................... 1696 Funding for Religious Entities ........................................ ... ... .... ... ...... 1699 Trinity Lutheran Church of Columbia, Inc. v. Comer ... ... .... ... ......... 1699 Legislative Accommodation of Religion ............. ......... ....................... 1703 Appendix. Table of Justices .... ............. ............................... ... ... ............ 1711 INDEX ········ ···· ···· ············· ······ ····························· ····· ···················· ·················· 1719

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_

TABLE OF CASES T he principal cases are in bold type.

44 Liquormart, Inc. v. Rhode Island, 1148 Abington School District v. Schempp, 1645 Abood v. Detroit Board of Educ., 1440 Abrams v. United States, 950 Adair v. United States, 496 Adams v. Tanner, 497 Adamson v. California, 466 Adarand Constructors, Inc. v. P ena, 704 Adderley v. Florida, 1249 Adickes v. S.H. Kress & Co., 885 Adkins v. Children's Hospital, 498 Adler v. Board of Education, 1436 Agency for International Development v . Alliance for Open Soc iety International, Inc., 1338 Agostini v. Felton, 1633 Aguilar v. Felton, 1633 Akron v. Akron Center for Reproduc~ive Health (Akron D, 527 Al H aramain Is!amic Found., Inc. v. U .S. Dep't of Treasury, 1202, 1204 Ala bama Tombigbee Rivers Coal. v. Kempthr,-ne. 159 Albertini, u,-,ited States v., 1255 Alberts v. CaJ{fornia, 1056 Alden v. Mair~. 185 Allegheny County v. American Civil Liberties Union. 1677 Allegheny Pittsburgh Coal v. Webster County. 652 Allen v. Wright, 49 Allgeyer v. Louisiana, 489 Allied Structural Steel Co. v. Spa nnaus,641 Allied Tube & Conduit Corp. v. I ndian Head, Inc., 1433 Alvarez, United States v., 1012 Ama lgamated Food Employees Union v. Logan Valley Plaza, Inc .. 861, 1280 Ambach v. Norwick. 796 American Booksellers Ass'n v . Hudnut, 1076 Ame rican Freedom Defense Initiative v. King Cty., 1256 American Fr eedom Defen,e Initiative v. Mass. Bay 'I'ransp. uth., 1252 Amer ican Library Ass'n, United S tates v., 1274, 1336 American P arty of Texas v. White, 1453 American Tradition Partnership, Inc. v. Bullock , 1506

Anderson v. Celebrezze, 1453, 1454 Anderson v. Liberty Lobby, Inc., 1011 Andrus v. Allard, 627 Arcara v. Cloud Books, Inc., 1182 Arizona Christian School Tuition Org. v. Winn, 52 Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 1492 Arizona State Legislature v. Arizona Independent Redistricting Commission, 825, 827 Arizona v. California, 399 Arkansas Educational Television Commission (AETC) v. Forbes, 1273, 1275, 1549 Arkansas Writers' Project, Inc. v. Ragland, 1539 Arlington Heights v. Metropolitan Housing Corp ., 687, 1182 Arnett v. Kennedy, 605 Ashcroft v. American Civil Liberties Union, 1117, 1119 Ashcroft v . Free Speech Coalition, 1099, 1121, 1354 Ashwander v. Tennessee Valley Authority, 36 Associated Press v. NLRB, 1542 Associated Press v. United States, 1542 Atascadero State Hosp. v. Scanlon, 1 4 Atkins v. Virginia, 573 Austin v. Michigan Chamber of Commerce, 1477 Ayestas v. Davis, 92 Ayotte v. Planned Parenthood of orthern New England, 540 Bacchus Imports, Ltd. v. Dias, 257 Baggett v. Bullitt, 1364, 1437 Bailey v. Alaba ma, 499 Baird v. tate Bar of Arizona, 1439 Baker v. Carr, 60 Baldwin v. G.A.F. Seelig, Inc., 254 Baldwin v. Montana Fish and Game Comm'n, 273 Ballard, U nited tates v., 156 Bantam Books, Inc. v. ullivan, 1365 Barne v. Glen The atre, Inc., 120-t Barron v. May or and Cit Council of Baltimore, 444 Barrows v. Jackson, 65 Bartnicki v. Voppe r, 1023 Bas , United tatcs v., 1-l l Bate v. Little Rock, 1419 Bate v. tate Bar of ·izona, 1141 Ba umgartner, United tate:s v., 1202

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Beauharnais v. Illinois, 1003 Belle Terre, Village of v. Boraas, 550 Bellotti v. Baird, 528 Belmont, United States v., 316 Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 262 Benton v. Maryland, 466 Berman v. Parker, 613, 615 Bernal v. Fainter, 796 Bethel School District o. 403 v. Fraser, 1295 Bibb v. Navajo Freight Lines, Inc., 268 Bigelow v. Virginia, 1133 Binderup v. Atty. Gen. U.S. of Am., 484 Bishop v. Wood, 605 Blum v. Yaretsky, 873 BMW of orth America, Inc. v. Gore, 507 Board of Airport Commissioners v. Jews for Jesus, 1361 Board of County Commissioners v. Umbehr, 1320 Board of Directors of Rotary International v. Rotary Club, 1448 Board of Education of Kiryas Joel v. Grumet, 1 709 Board of Education of Oklahoma City v. Dowell, 670 Board of Education v. Allen, 1620 Board of Education v. Mergens, 1706 Board of Education v. Pico, 1292 Board of Regents of The University of Wisconsin v. Southworth, 1445 Board of Regents v. Roth, 605 Board of Trustees of The University of Alabama v. Garrett, 187, 919 Board of Trustees, State Univ. of New York v. Fox, 1145 Bob Jones University v. United States, 1589 Boddie v. Connecticut, 832, 834 Boerne, City of v. Flores, 902, 1601, 1607 Bolger v. Youngs Drug Products Corp., 1107, 1140 Bolling v. Sharpe, 663 Bond v. Floyd, 978 Bond v. United States, 56, 109, 338 Booker, United States v., 422 Bormuth v. County of Jackson, 1670 Bose Corp. v. Consumers Union, 1011 Boumediene v. Bush, 379 Bowen v. Kendrick, 1629 Bowen v. Roy, 1591 Bowers v. Hardwick, 554 Bowman v. White, 1257

Bow her v. Synar, 409 Boy Scouts of America v. Dale, 1449

Boyd v. United States, 512

Bradfield v. Roberts, 1617 Bradwell v. State, 756

Brandenburg v. Ohio, 978 Branti v. Finkel, 1317

Branzburg v. Hayes, 1527 Braunfeld v. Brown, 1582 Bray v. Alexandria Women's Health Clinic, 884 Breard v. Alexandria, 1272 Breedlove v. Suttles, 806 Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 877 Bridges v. California, 1524 Broadrick v. Oklahoma, 1351 Brockett v. Spokane Arcades, Inc., 1356 Bronson v. Kinzie, 637 Bronx Household of Faith v. Board of Education of New York City, 1286 Brotherhood of Railroad Trainmen v. Virginia, 1430

Brown v. Board of Education [Brown I], 20, 21, 661 Brown v. Board of Education [Brown II] , 667

Brown v. Entertainment Merchants Ass'n, 1129 Brown v. Glines, 1255 Brown v. Legal Foundation of Washington, 627 Brown v. Louisiana, 1247 Brown v. Socialist Workers '74 Campaign Committee, 1426 Brown v. United States, 389 Brown, United States v., 1436 Bryant v. Zimmerman, 1421 Buck v. Bell, 510 Buck v. Kuykendall, 230 Buckley v. Valeo, 405, 1424, 1461 Bullock v. Carter, 14531 1454 Bunting v. Oregon, 498 Burdick v. Takushi, 1454 Burnside v. Byars, 1291 Burr, United States v., 427, 432 Burson v. Freeman, 1167 Burton v. Wilmington P arking Authority, 866 Burwell v. Hobby Lobby, 1608 Bush v. Gore, 70, 813 Bush v. Holmes, 1644 Bush v. Vera, 752, 753 754 Butler v. Michigan, 1103, 1104

Butler, United States v 201 C & A Carbone, Inc. v. ·, Clarkstown, 241 , 243

Caban v. Mohammed 78l Calder v. Bull 485 ' Califano v. Gdldfarb 79 1 Cal~fano_v. Webs ter ,' 79 l Cahforrua Democratic Pa t J 1456, 1458 r Y v. ones,

TABLE OF CASES

California, United States v., 168 Camps Newfound/Owatonna, Inc. v. Town of Harrison, 223, 237 Cantwell v. Connecticut, 990, 1581 Capitol Square Review Board v. Pinette, 1287, 1679 Cardona v. Power, 895 Carey v. Brown, 1165 Carey v. Population Services, International, 520, 1140 Carolene Products Co., United States v ., 28, 503, 941 , 1391

Carroll Towing Co., United States v. , 977

Carroll v. President & Commissioners of Princess Anne, 1376

Carter v. Carter Coal Co. , 124 Castle Rock, Town of v. Gonzales, 606

Causby, United States v., 627 Cavanaugh v. Bartelt, 1569 CBS, Inc. v. FCC, 1548, 1549 Central Hudson Gas v. Public Service Comm'n, 1142 Cent ral Virginia Community College v. Katz, 189 Chae Chan Ping v. United States, 680 Champion v. Ames [The Lottery Case], 118 Chaplinsky v . New Hampsh ire , 986 Ch arles C. Steward Machine Co. v. Davis, 204 Ch arles River Bridge v. Warren Bridge, 637 Ch emical Waste Management, Inc. v. Hunt, 236 Chicago, Burlington & Quincy R'wy Co. v. Chicago, 469, 611 Ch icago, M. & St. P. Ry. Co. v. Minnesota, 488 Child Labo r Tax Case [Bailey v . Drexel F urnitu re Co.] , 191 Chis holm v. Georgia, 167, 183 Chovan, United States v., 484 Christian Legal Society Chapter of t he University of California H astings College of Law v. Martinez, 1277 Church of Holy Trinity v. United States, 1676 Church of the Lukumi Babalu Aye v . City of Hiale ah , 1182, 1571 Cincinnati, City of v. Discovery Network, Inc., 1146 Ciprian o v. Houma, 809 Citizen P ublish ing Co. v. United S ta tes, 1542, 1596

Citizens United v. Federal Election Commission, 1426, 1479, 1494 Civil Rights Cases, 856 Clapper v. Amnesty International USA, 48 Clark v. Community for Creative Non-Violence, 1173, 1232 Classic, United States v., 861 Cleburne v. Cleburne Living Center, Inc. , 799, 919 Clements v. Fashing, 1453 Cleveland Board of Education v. Loudermill, 606 Clingman v. Beaver, 1457 Clinton v. Jones, 429 Clinton v. New York, 401 Coates v. Cincinnati, 1364 Cohen v. California, 998 Cohen v. Cowles Media Co., 1541 Cohens v. Virginia, 19 Cole v. Richardson, 1439 Colegrove v. Green, 60, 813 Coleman v. Court of Appeals of Maryla nd, 926 Coleman v. Miller , 61 Colgate v. Harvey, 457 Collector v. Day, 29 3 College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 187 Collin v . Smith, 1005, 1033 Collins v. Hardyman, 883 Colorado Republican Federal Campaign Committee v. FEC, 1473 Columbia Broadcasting, Inc. v. Democratic National Comm., 1547 Committee for Public Education v. Nyquist, 1621 Committee for Public Education v. Regan, 1620 Community for Creative NonViolence v. Watt, 1232 Complete Auto Transit, Inc. v. Brady, 290 Comptroller of Treasury of Md. v . Wynne, 223, 292 Comstock, U nited States v ., 92 Connally v. General Constr. Co .. 1363 Connick v . My ers, 1304 Connolly v. Pension Benefit Gu aran ty Corp., 62 Consolidated Edison [Con Ed.Iv. Public Service Comm'n [P ]. 1107 Con stantine, United tates v., 194 Cooley v. Board of Wardens, 22 Cooper v . Aaron, 21 Coppage v. Kansas, -197 Corfield v. Coryell, 271, 273 . P Legal D fense & Cornelius v. Ed. Fund, 1260

xxvii

xxviii

TABLE OF CASES

Corporation of P.residing Bishop v. Amos, 1704 Cox Broadcasting Corp. v. Cohn, 1022 Cox v. Louisiana, 995, 1222 Cox v. ew Hampshire, 1213, 1214 Coyle v. Oklahoma, 168 Craig v. Boren, 34, 51, 761 Craig v. Harney, 1525 Cramp v. Board of Public Instruction, 1437 Crandall v. evada, 454, 458 Crawford v. Marion County Election Board, 810 Crosby v. ational Foreign Trade Council, 286 Cruikshank, United States v., 472 Cruzan v. Director, Missouri Dept. of Health, 592 CTS Corp. v. Dynamics Corp. of America, 269 Cummings v. Missouri, 1436 Curtis Publishing Co. v. Butts and Associated Press v. Walker, 1013 Curtiss-Wright Export Corp., United States v., 340, 392 Cutterv. Wilkinson, 1707 Dallas v. Stanglin, 1419 Dames & Moore v. Regan, 317 Dandridge v. Williams, 839 Daniel v. Paul, 139 Dan.ks, United States v., 147 Darby, United States v., 131 Dartmouth College v. Woodward, 637 Davenport v. Washington Education Ass'n, 1441 Davidson v. New Orleans, 488

Davis v. Bandemer, 820 Davis v. Federal Election Comm'n, 1490 Davis v. Massachusetts, 1211 Davis v. Michigan Dept. of Treasury, 294 Davis, Helvering v., 206 De Geofroy v. Riggs, 337 De Jonge v. Oregon, 1418 Dean Milk Co. v. Madison, 239 Debs v. United States, 949

Dennis v. United States, 970 Denver Area Educational Telecommunications Consortium v. FCC, 1109, 1552 Department of Revenue of Kentucky

v. Davis, 246 DeShaney v. Winnebago County Social Services Department, 874 Di Sant.o v. Pennsylvania, 229 Dickerson v. United States, 23 Discount Tobacco City & Lottery, Inc. v. United Stat.es, 1154 District of Columbia v. Heller, 473, 475

Doe v. Bolton, 527 Doe v. Reed, 1396 Doe v. University of Mich., 1037 Dolan v. City of Tigard, 634 Dombrowski v. Pfister, 1348 Doremus, United States v. , 193 Dorsey, United States v. , 147 Douglas v. California, 829 Downes v. Bidwell, 341 Dred Scott v. Sandford, 25, 446, 487 Dudgeon v. United Kingdom, 30, 566, 573 Dun & Bradstreet, Inc. v. Greenmoss Builders, 1019 Duncan v. Louisiana, 466, 468 Dunn v. Blumstein, 462 E.C. Knight Co., United States v . [The Sugar Trust Case], 116 Easley v. Cromartie, 754 Eastern Enterprises v. Apfel, 628 Edelman v. Jordan, 184 Edgar v. Mite Corp., 269 Edge Broadcasting Co., United States v., 1147 Edmonson v. Leesville Concrete Co., 876 Edwards v. Aguillard, 1182, 1660 Edwards v. California, 458, 459 Edwards v. South Carolina, 995 Eichman, United States v. , 1193 Eisenstadt v. Baird, 519 El Paso v. Simmons, 640 Elane Photography v. Willock, 16 15 Elfbrandt v. Russell, 1437 Elk Grove Unified School District v. Newdow, 1658 Ellis v. Brotherhood of Clerks 58 Elonis v. United States, 1054 ' Elrod v. Burns, 1316

Employment Division, Dept. of Human Resources v. Smith

1593 l Engel v. Vitale, 1644 Epperson v. Arkansas, 1659 Erie Railroad Company v. Tompkins 225 l Erie, City of v. Pap's A.M., 120 7 Erznoznik v. Jacksonville 108 2 EU v. San F!ancisco County' Democratic Central Committee 1456 l Euclid v. Ambler Realty Co., 6 28 Evans v. Abney, 865,866 Evans v. Newton, 861 Evenwel v. Abbott, 818

Everson v. Board of Educat· 1561, 1617 ion, Expressions Hair Design v Schneiderman, 1209 · Exxon Corp. v. Governor of Maryland, 258

TABLE OF CASES

Exxon Shipping Co. v. Baker, 508 F .S. Royster Guano Co. v. Virginia, 647 Fairfax's Devisee v. Hunter's Lessee, 17 FCC v. Fox Television Stations, Inc., 1105 FCC v. League of Women Voters, 1324, 1549, 1550 FCC v. Pacifica Foundation, llOO Federal Election Comm'n v. Akins, 54 Federal Election Comm'n v. Colorado Republican Federal Campaign Committee, 1473 Federal Election Comm'n v. Massachusetts Citizens For Life, Inc., 1477 Federal Election Comm'n v. Wisconsin Right to Life, 1486 Federal Maritime Commission v. South Carolina State Ports Authority, 188 Feiner v. New York, 993 Ferguson v. Skrupa, 506 First Agric. Nat. Bank v. State Tax Comm'n, 293 First E nglish Evangelical Lutheran Church v. Los Angeles County, 632 First National Bank of Boston v. Bellotti, 147~, 1514 Fisher v. University of Texas, 728, 729 Fiske v. Kansas, 469 Fitzpatrick v Bitzer, 184 Flagg Bros., me. v. Brooks, 862, 872 Flast v. Cohen, 52 Fletcher v. Peck, ~87, u06 Florida Bar v. Went For It, Inc., 1142 Florida Lime & Avocado Growers, Inc. v. Paul, 284 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 1 7, 914 Florida Star v. B.J.F., 1022 Flower v. United States, 1253 Foley v. Connelie, 795 Fong Yue Ting v. United States, 680 Forsyth County, Georgia v. ationalist Movement, 997 Foster-Fountain Packing Co. v. H aydel, 239 Free Enterprise Fund v. Public Company Accounting Oversight Board,422 Freedman v. Maryland, 1368 Freedom from Religion Found., Inc. v. McCallum, 1643, 1644 Freytag v. Com missioner, -106 Frie nds of the Earth v. Laidlaw Environmenta l Services, 58 Frisby v . Schultz, 1237 Frohwerk v. United States, 948

Frontiero v. Richardson, 34, 759 Frothingham v. Mellon, 51 FTC v. Superior Court Trial Lawyers Ass'n, 1434 Fullilove v. Klutznick, 700 FW/PBS, Inc. v. Dallas, 1369 Gade v. National Solid Wastes Management Ass'n, 285 Gaffney v. Cummings, 819 Gannett Co. v. Depasquale, 1517 Garcetti v. Ceballos, 1311 Garcia v. San Antonio Metropolitan Transit Authority, 110, 170 Garland, Ex parte, 1436 Garner v. Los Angeles Bd. of Public Works, 1436 Garrison v. Louisiana, 1010 Gayle v. Browder, 664 Geduldig v. Aiello, 777 General Electric Co. v . Gilbert, 778 Georgia v. Tennessee Copper Co., 44 Georgia, United States v., 924 Gerhardt, Helvering v., 293 Gertz v. Robert Welch, Inc. , 1015 Gibbons v. Ogden, 114, 226 Giboney v. Empire Storage & Ice Co., 1431 Gibson v. Brewer, 1569 Gibson v. Florida Legislative Investigation Comm., 1422 Gideon v. Wainwright, 469 Gill v. Whitford, 824, 825, 1460 Gillette v. United States, 1567 Ginsberg v. ew York, 1059, 1102, 1112 Ginzburg v. United States, 1058, 1059 Gitlow v. New York, 961 Givhan v. Western Line Con solidated School District, 1303 Glickman v. Wileman Bros., 1409 Globe ewspaper Co. v. Superior Court, 1521 Gloucester County School Board v. G.G., 7 5 Goesaert v. Cleary, 758 Goldberg v. Kelly, 604 Goldblatt v. Hempstead, 62 Goldman v. Weinberger, 15 9 Gold tein v. California, 221 Goldwater v. Carter, 67 Gomillion v. Lightfoot, 6 2 Gonzales v. Carhart, 541 Gonzales v. 0 Centro Espu:ita Beneficente Uniao do Vegetal, 160 Gonzale v. Raich, 152 Good ews Club v. Milford Central chool, 12 5, 1657 Gooding v. Wilson, 9 Good ridge v. Department of Public Health , 574 Grace, Umted ..,tates ., 12-16

xxix

--, TABLE OF CASES

Graham v. Richardson, 794 Grand Jury Subpoena: Judith Miller, In re, 1532 Grand Rapids School District v. Ball, 1633 Granholm v. Heald, 235

Gratz v. Bollinger, 719 Graves v. ew York ex rel. O'Keefe, 293 Grayned v. Rockford, 1250 Greece, Town of v. Galloway, 1667 Green v. County School Board, 668 Greer v. Spock, 1254 Gregory v. Ashcroft, 108 Griffin v. Breckenridge, 883 Griffin v. California, 467 Griffin v. County School Board of Prince Edward County, 682 Griffin v. Illinois, 828 Griffiths, In re, 794 Griggs v. Allegheny County, 627

Griswold v. Connecticut, 511 Grosjean v. American Press Co., 1535 Grovey v. Townsend, 861

Grutter v. Bollinger, 710 Guest, United States v., 878 Gulf, C. & S. F. Ry. v. Ellis, 645 H.P. Hood & Sons v. Du Mond, 222,255 Haddock v. Haddock, 576 Hague v. CIO, 1211, 1212 Halbert v. Michigan, 831

Hamdan v. Rumsfeld, 372 Ham.div. Rwnsfeld, 360 Hamilton v. Kentucky Distilleries Co., 333 Hamling v. United States, 1072

Hammer v. Dagenhart [The Child Labor Case], 120, 122 Hampton v. Mow Sun Wong, 797

Hans V. Louisiana, 183 Harlow v. Fitzgerald, 429 Harper & Row v. Nation Enterprises, 1023

Harper v. Virginia State Board of Elections, 806, 895

Harris v. McRae, 529 Harris v. Quinn, 1441

Heller v. District of Columbia, 484 Henneford v. Silas Mason Co., 236 Herbert v. Lando, 1011 Hernandez v. Texas, 679 Hess v. Indiana, 981 Hicklin v. Orbeck, 271, 274, 275 Hicklin, Regina v., 1057 Hill v. Colorado, 1243, 1244 Hines v. Davidowitz, 284 Hipolite Egg Co. v. United States, 119 Hirabayashi v. United States, 676 Hishon v. King & Spalding, 1448 Hobbie v. Unemployment Appeals Comm'n, 1586 Hoke v. United States, 120 Holden v. Hardy, 490

Holder v. Humanitarian Law Project, 1195, 1434 Hollenbaugh v. Carnegie Free Library, 554 Hollingsworth v. Perry, 56 Holmes v. Atlanta, 664 Holt v. Hobbs, 1614

Home Building & Loan Ass'n v . Blaisdell, 638 Home for Incurables of Baltimor e City v. Univ. of Md. Med. Sys. Corp., 866 Honda Motor Co., Ltd. v. Oberg, 50 7 Hosanna-Tabor Evangelical Lutheran Church and School v . Equal Employment Opportunity Commission, 1605 Houchins v. KQED, Inc., 1516 Houston v. Hill, 1360 Houston, East & West Texas Railway Co. v. United States [The Shreveport Rate Case], 117 Hudgens v. NLRB, 861, 1281 Hughes v. Alexandria Scrap Corp. 248 ' Humphrey's Executor v. United States, 413 Hunt v. Cromartie, 754 Hunt v. McNair, 1628 Hunt v. Washington State Apple Advertising Comm'n 257 Hunter v. Erickson, 733 Hunter v. Underwood, 689 Hurd v. Hodge, 865

Harris, United States v., 916 Hawaii Housing Authority v. Midkiff, 613, 616 Haynes v. Lapeer, Circuit Judge, 510 Hazelwood School District v. Kuhlmeier, 1296 Healy v. James, 1280, 1428 Heart of Atlanta Motel v. United States, 136 Heffernan v. City of Paterson, 1314 Heffron v. International Society for Kri hna Consciousness, 1222

Hutchinson v. Proxmire, 10 14 ' Hynes v. Mayor of Oradell 1213 1272 ' ' Illinois v. Telemarketing As . Inc., 1358 soc1ates ,

H in v. Freedom From Religion Fdn., 52

INS v. Chadha, 393

Hurley v. Irish-American Gay Lesbian and Bisexual Grou ' of Boston [GLIB], 1414 P Hustl~r Magazine v. Falwell 1028

Ingraham v. Wright, 60 9

TABLE OF CASES

International Brotherhood of Teamsters v. Vogt, Inc., 1431 International Longshoremen's Ass'n v. Allied International, Inc., 1433 International Society for Krishna Consciousness, Inc. (ISKCON) v. Lee, 1264 J .E .B. v. Alabama ex rel. T.B., 767 J .S. ex rel. Snyder v. Blue Mountain School District, 1301 Jackson v. Metropolitan Edison Co., 862, 870 Jacobellis v. Ohio, 1058, 1059 Jacobson v. Massachusetts, 494, 955 James v. Valtierra, 804 J a nus v. American Federation of State, County, and Municipal Employees, Council 31, 1442 J enkins v. Georgia, 1071 J enkins v. Missouri, 665, 670 Jenness v. Fortson, 1453 Johanns v. Livestock Marketing Association, 1411 Johnson v. California, 675 Johnson v. Eisentrager, 356 Johnson v. Haydel, 239 Johnson v. Maryland, 294 Johnson v. Twitter, Inc., 1125, 1404 Johnson v. Virginia, 664 Jones v. Alfred H. Mayer Co., 885 Jones v. Wolf, 1569 Jordan v. De George, 1363 Joseph Burstyn, Inc. v. Wilson, 1368 Kadrmas v. Dickinson Public Schools, 851 Kahn v. Shevin, 789 Kahriger, United States v., 195 Kassel v. Consolidated Freightweys Corp., 262 Katzenbach v. McClung, 137 Katzenbach v. Morgan, 892 Kebodeaux, United States v., 96 Kelo v. City of New London, 614 Kentucky v. Dennison, 295 Kerry v. Din, 608 Kewanee Oil Co. v. Bicron Corp., 221 Keyes v. School District, 669 Keyishian v. Board of Regents, 143 Keystone Bituminous Coal Ass'n v. Debenedictis, 626 Kimel v. Florida Board of Regents, 187,918 King v. Burwell, 53 King v. Governor of State of .J., 1203 Kingsley Books, Inc. v. Brown, 1372 Kingsley Int'l Pictures Corp. v. Regents, 1059 Kitzmiller v. Dover Area chool District, 1664 Kleindienst v. Mandel, 327 Klopfer v. orth arolina, 469

Knight First Amendment Inst. at Columbia Univ. v. Trump, 1125, 1269 Knox v. Serv. Employees Int'l Union (SEIU), 1441 Kohl v. United States, 611 Kokinda, United States v. , 1262 Kolbe v. Hogan, 484 Kolender v. Lawson, 1363 Konigsberg v. State Bar, 1437 Konigsberg v. State Bar of California [Konigsberg II], 943, 1437 Korematsu v. United States, 676, 679 Kotch v. Board of River Port Pilot Commissioners, 649 Kovacs v. Cooper, 942, 1216 Kramer v . Union Free School District No. 15, 808 Kras, United States v., 832, 834 Kunz v. New York, 996 Ladue, City of v. Gilleo, 1218 Laird v. Tatum, 59 Lakewood v. Plain Dealer Publishing Co., 1213, 1226, 1366 Lamb's Chapel v. Center Moriches Union Free School District, 1285 Landmark Communications, Inc. v. Virginia, 1524 Lane v. Franks, 1313 Larkin v. Grendel's Den, Inc., 1703 Larson v. Valente, 1575, 1576 Lassiter v. Department of Social Services, 833 Lassiter v. orthampton County Election Bd., 890 Law Students Civil Rights Research Council v. Wadmond, 1439 Lawrence v. Texas, 563 Lawyer v. Department of Justice, 753 Layshock ex rel. Layshock v. Hermitage School District, 1301 League of United Latin American Citizens v. Perry, 823 League of Women Voters v. Pennsylvania, 827 Leathers v. Medlock, 1540 Lee v. I KCO , 1264 Lee v. Weisman, 1563, 1648 Lee, United States v., 1588 Legal Services Corporation v. Velazquez, 1334 Lehman v. Shaker Heights. 1251 Lemon v. Kurtzman, 1615, 1620 Leslie Miller, Inc. v. Arkansas, W4 Levitt v. Committee for Public Education, 1620 Lewis v. BT Inve tment Ma nag r-, Inc., 269 Lexmark International, lnc. \ 'tati ontrol Components, lnc, 53 Lindh, United tate v., 359 Lindsey v. ormet, 40

xxxi

xxxii

TABLE OF CASES

Lindsley v. atural Carbonic Gas Co., 647 Linmark Associates, Inc. v. Town of Willingboro, 1140 Little Sisters Book and Art Emporium v. Canada, 1081 Little v. Streater, 833 Lloyd Corp. v. Tanner, 861, 1281 Lochner v. New York, 489,941, 1401 Locke v. Davey, 1696 Lopez, United States v., 140 Loretto v. Teleprompter Manhattan CATV Corp., 629 Lorillard Tobacco Co. v. Reilly, 1153 Los Angeles Police Department v. United Reporting, 1146 Los Angeles v. Preferred Communications, Inc., 1550 Los Angeles, City of v. Alameda Books, Inc., 1090 Louisiana ex rel. Gremillion v. AACP, 1419 Lovell v. Griffin, 1366 Loving v. United States, 392 Loving v. Virginia, 547,672 Lubin v. Panish, 1453 Lucas v. Forty-Fourth Gen. Assembly, 816 Lucas v. South Carolina Coastal Council, 630 Lucia v. SEC, 405 Lugar v. Edmondson Oil Co., 875 Lujan v. Defenders of Wildlife, 38 Luke Records, Inc. v. Navarro, 1073 Lund v. Rowan County, 1670 Luther v. Borden, 62 Lynch v. Donnelly, 1671 Lyng v. Northwest Indian Cemetery Protective Ass'n, 1591 M.L.B. v. S.L.J., 834 Madden v. Kentucky, 457 Madsen v. Women's Health Center, Inc., 1239 Maher v. Roe, 528 Maine v. Taylor, 236 Malicki v. Doe, 1569 Malloy v. Hogan, 467,469 Mapp v. Ohio, 469, 4 71 Marbury v. Madison, 2, 34, 35, 59 Marigold, United States v., 116 Marsh v. Alabama, 860, 1280 Marsh v. Chambers, 1666 Martin v. City of Struthers, 1215 Martin v. Hunter's Lessee, 17 Martinez v. Bynum. 851 Mas achusetts Bd. of Retirement v. Murgia. 803 Mas achusetts v. Dav.is, 1211

Mu acbu ett v. Environmental Protection Agency, 43

Ma ach

tt.s v. Oakes, 1359

Massachusetts v. United States, 293 Masses Publishing Co. v. Patten, 956,959 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 1417, 1576 Matal v. Tam, 1343 Mathews v. Diaz, 798 Mathews v. Eldridge, 363, 609 Mayer v. Chicago, 835 Mayor of Baltimore v. Dawson, 664 McAuliffe v . Mayor of New Bedford, 1301 McCardle, Ex parte, 32 McCollum v. Board of Education, 1621 McConnell v. Federal Election Commission, 1426, 1480 McCray v. United States, 193 McCreary County v. ACLU of Kentucky, 1682 McCullen v. Coakley, 1244 McCulloch v. Maryland, 79 McCutcheon v. F.E.C., 1507 McDaniel v. Paty, 1570 McDonald v. City of Chicago, 475 McDonnell v. United States, 1512 McGowan v. Maryland, 1665 McIntyre v. Ohio Elections Commission, 1394, 1396 McLaughlin v. Florida, 671 McLaurin v. Oklahoma State Regents, 660 Medellin v. Texas, 322 Meek v. Pittenger, 1620 Meltzer v. C. Buck LeCraw & Co. 832 ' Members of City Council v. Taxpayers for Vincent 1227 Memoirs v. Massachusetts '1059 Memorial Hospital v. Mari~opa County, 462 Merryman, Ex parte, 346 Metro Bro~dcasting, Inc. v. FCC, 706 Metromedia, Inc. v. San Diego 1145

1225

'

'

Metropolitan Life Ins. Co. v. Ward 289 ' Meyer v. Nebraska 509 Miami Herald Pub.' Co. v. Tornillo 1402 ' ~chael H. v. Gerald D., 552 M~chae_l M. v. Superior Court, 778 M~lkovich v. Lorain Journal Co 1010 M~ller v. ~~lifornia, 106l ·, Miller v. Civil City of South B d 1209 en • Miller v. Johnson 750 M~ller v. Schoene: 625, 626 M~ll~r, United States v., 472 474 M~~gan, Ex parte, 349, 3 50 ' Milliken v. Bradley, 6 69

...

TABLE OF CASES

Mills v. Alabama, 937 Minersville School Dist. v. Gobitis, 1390, 1581 Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue , 1534 Minnesota v. Barber, 238 Minnesota v. Clover Leaf Creamery Co., 259 Minnesota Voters Alliance v. Mansky, 1281 Minor v. Happersett, 757 Miranda v. Arizona, 23 Mishkin v. New York, 1059 Mississippi University for Women v. Hogan, 765 Mississippi v. Johnson, 427 Missouri ex rel. Gaines v. Canada, 660 Missouri Pac. Ry. v. Nebraska, 611 Missouri v. Holland, 335, 336, 337 Missouri v. Jenkins, 670 Mistretta v. United States, 419 Mitchell v. Helms. 1634, 1635 Mobile v. Bolden, 689 Monroe v. Pape, 885 Moore v. East Clevf'land, 549 Moose Lodge No. 107 v. Irvis, 868 Morehead Y. New York ex rel. Tipalrlo 502 Morey\'. I10,·d, 650 Morrison v. Olson, 414 Morrison, U11ited States v., 148, 915 Morse v. Fr0derick, 1298 Mt. Health:;· City School Dist. Bd. of Educ. v. Doyle, 688 Mueller v. Allen, 1623 Mugler v. Kansas, 488 Muller v. Oregon, 497 Munn v. Illinois, 488 Murdock v. Pennsylvania, 1272 Murphy v . ational Collegiate Athletic Ass'n , 182 Murray's Lessee v. Hoboken Land & Improvement Co., 465 Myers v . United States, 297, 412 NAACP v. Alabama, 1420 NAACP v. Button, 1428 NAACP v. Claiborne Hardware Co., 981, 1431, 1433 National Broadcasting Co. v. United States, 1544 National Endowment for the Arts ( EA) v. Finley, 1330, 1365 National Federation of Independent Business v. Sebelius, 92, 160, 191, 196, 212 National Institute of Family and Life Advocates v. Becerra, 1399, 1408

ational League of Cities v. Usery, 169 National Socialist Party v. Skokie, 1036 National Treasury Employees Union (NTEU), United States v., 1308 Near v. Minnesota ex rel. Olson, 1374 Nebbia v. New York, 500 Nebraska Press Ass'n v. Stuart, 1385 Nectow v. Cambridge, 628 Nevada Department of Human Resources v. Hibbs, 924 New Energy Co. oflndiana v. Limbach, 238 New Mexico, United States v., 293 New Orleans City Park Improvement Association v. Detiege, 664 New Orleans v. Dukes, 651 New State Ice Co. v. Liebmann, 108, 497 New York City Transit Auth. v. Beazer, 652 New York Magazine v. Metro. Transp. Auth., 1252 New York State Board of Elections v. Lopez Torres, 1454 New York State Club Ass'n v. City of New York, 1448 New York State Rifle & Pistol Ass'n v. Cuomo, 483, 484 New York Times Co. v. Sullivan, 1006 New York Times Co. v. United States [The Pentagon Papers Case], 1377 New York v. Ferber, 1095, 1353 New York v. United States, 168, 173 Nguyen v. INS, 782 Nixon v. Condon, 861 ixon v. Fitzgerald. 428, 429, 430 r i.xon v. Herndon, 861 ixon v. Shrink Missouri Government PAC, 1469 ixon v. United States, 68, 436, 437 ixon, United States v. , 425 NLRB v. Jones & Laughlin Steel Corp., 129 NLRB v. Noel Canning, 407 Nollan v. California Coastal Comm'n, 634 Nordlinger v. Hahn, 653 orth American Cold torage Co. v. Chicago, 609 orth Dakota v. United tates. 294 orthwest Austin Municipal Utility District o. One v. Holder, 92, 908 orwood v. Horney, 622 RA v. Bureau of Alcohol, Tobacco, Firearms , E plo ives. 4

xxxiii

x.xxiv

TABLE OF CASES

O'Brien v. United States, 1177 O'Brien, United States v., 778, 1176 O'Hare Truck Service, Inc. v. City of orthlake, 1321 Obama for America v. Husted, 813 Obergefell v. Hodges, 583 Ogden v. Saunders, 637 Ohralik v. Ohio State Bar Association, 1141 Oklahoma Press Publishing Co. v. Walling, 1542 Oliver, In re, 469 Oregon v. Mitchell, 898 Oregon Waste Systems, Inc. v. Department of Environmental Quality, 236 Orr v. Orr, 790 Ortwein v. Schwab, 833 Osborn v. Thomson, 510 Osborne v. Ohio, 1098, 1360 Pacific Gas & Elec. Co. [PG & E] v. Public Util. Comm'n, 1404 Pacific Gas & Elec. Co. v. State

Energy Resources Conservation & Development Comm'n, 278 Pacific Mutual Life Insurance Co. v. Haslip, 507 Pacific States Tel. & Telegraph Co. v. Oregon, 63 Packingham v. North Carolina, 1124, 1269, 1556 Padilla v. Rumsfeld, 370 Palazzolo v. Rhode Island, 632 Palko v. Connecticut, 465, 932 Palmer v. Thompson, 682 Palmore v. Sidoti, 673, 674 Panama Ref. Co. v. Ryan, 391 Papachristou v. Jacksonville, 1363

Parents Involved in Community Schools v. Seattle School District, 736 Paris Adult Theatre I v. Slaton, 1058, 1064 Patel v. Texas Department of Licensing and Regulation, 508 Patterson v. Colorado, 932, 948 Paul v. Davis, 607 Paul v. Virginia, 271, 459 Peaslee, Commonwealth v., 948 Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 1142 Pell v. Procunier, 1515 Penn Central Transportation Co. v. ew York City, 628 Pennekamp v. Florida, 1525

Penn ylvania Coal Co. v. Mahon , 623, 626 Pennsylvania v. Board of Directors of Trusts, 865 P nnsylvania v. Union Gas Co., 184

Perez v. Brownell, 340 Perez v. Campbell, 221 Perez v. United States, 139 Perry Education Ass'n v. Perry Local Educators' Ass'n, 1258 Perry v. Sindermann, 605, 609 Personnel Administrator of Mass. v. Feeney, 786 PETPO v. U.S. Fish & Wildlife Serv., 159 PHH Corp. v. Consumer Financial Protection Bureau, 424 Philadelphia Newspapers, Inc. v. Hepps, 1011

Philadelphia v. New Jersey, 231, 233 Philip Morris USA v. Williams, 507 Phillips v. Washington Legal Foundation, 627 Phoenix v. Kolodziejski, 809 Pickering v. Board of Education, 1302 Pickup v. Brown, 1203 Pierce v. Society of Sisters, 509, 1619 Pike v. Bruce Church, Inc., 230, 261 Pilcher, State v. , 571 Pink, United States v., 316 Planned Parenthood Ass'n/Chi. Area v. Chicago Transit Auth. , 1252 Planned Parenthood of Central Missouri v. Danforth, 528

Planned Parenthood of Southeastern Pa. v. Casey, 531 Planned Parenthood of Southeast e rn Pennsylvania v. Casey, 1399 Planned Parenthood v. American Coalition of Life Activists, 982 Playb_oy Entertainment Group, Urnted States v., 1110 Pleasant Grove City v. Summum 1287 ' Plessy v. Ferguson, 657 Plyler v. Doe, 849 Poe v. Ullman, 514 Pointer v. Texas, 469 Poletown Neighborhood Council v · Detroit, 621 Police Department v. Mosley 1165 Pope v . Illinois, 1072 ' Posada~ de Puerto Rico Assocs. v. Touris m Company of Puerto Rico 1147 ' Poulos v. New Hampshire, 1371 Powell v. Alabama, 469 Powell v. McCormack, 66 Powell v. State, 555 Presbyterian Church v. Hull Ch h 1569 urc ' Press-Enterprise Co. v. Super· Court, 1522 1523 ior Pr~ce Wa~erhduse v . Hopkins 785 Price, United States v., 881 '

TABLE OF CASES

Primus, In re, 1141 Printz v. United States, 178 Progressive, Inc., United States v. , 1383 Providence Bank v. Billings, 637 Prudential Insurance Co. v. Benjamin, 288 PruneYard Shopping Center v. Robins, 1403 Puerto Rico v. Branstad, 295 Quill Corp. v. North Dakota, 290 Quirin, Ex parte, 353 R.A.V. v. City of St. Paul, 1038 R.J. Reynolds Tobacco Co. v. FDA, 1408 Railroad Commission Cases, 488 Railroad Retirement Board v. Alton Railroad Co., 122 Railway Express Agency v. New York, 647 Raines v. Byrd, 55 Randall v. Sorrell, 1470, 1472 Rankin v. McPherson, 1307 Rasulv.Bush, 357,358 Red Lion Broadcasting Co. v. FCC, 1402, 1545 Redrup v. New York, 1059 Reed v. Reed, 759 Reed v. Town of Gilbert, 1160 Reeves, In•!. v. Stake, 248, 249 Regan v. Tax~tion With Represe t1tat.ioii of Washington, 1323 Regents of Univ. of California v. Bakke. 692 Reid v. Covert, 337 Reitman v Mulkey, 867 Rendell-Baker v. Kohn, 873, 874 Reno v. American Civil Liberties Union, 1111, 1268, 1555 Reno v. Condon, 181, 182 Renton v. Playtime Theatres, Inc., 1089 Republican Party of Minnesota v. White, 1168, 1170, 1171 Rescue Army v. Municipal Comt of Los Angeles, 36 Reuben Quick Bear v. Leupp, 1617 Reynolds v. Sims, 814, 816 Reynolds v. United States, 1561, 1581 Ricci v. DeStefano, 690 Rice v. Cayetano, 679 Rice v. Paladin Enters., 983 Rice v. Santa Fe Elevator Corp., 2 3 Richardson v. Ramirez, 810 Richardson, United States v., 52 Richmond ewspapers, Inc. v. Virginia, 1518 Richmond v. J .A. Croson Co., 701 Riley v. National Federation of the Blind, 1358

Rita v. United States, 422 Robel, United States v., 1349 Roberts v. United States Jaycees, 1446 Rochin v. California, 468 Roe v. Wade, 58,521 Roemer v. Maryland Public Works Board, 1628 Rogers v. Lodge, 689 Rohr Aircraft Corp. v. San Diego County, 293 Rome v. United States, 899 Romer v. Evans, 556 Rosenberger v. Rector & Visitors of University of Virginia, 1328, 1563, 1631 Rosenbloom v. Metromedia, Inc., 1014 Rosenfeld v. New Jersey, 989 Ross v. Moffitt, 830, 831 Rostker v. Goldberg, 780, 1255 Roth v. United States, 1056 Rowan v. U.S. Post Office Department, 1106 Rowland v. Mad River School District, 562 Rubin v. Coors Brewing Co., 1148 Rubin v. United States, 428 Ruckelshaus v. Monsanto Co., 627 Rumsfeld v. Forum for Academic and Institutional Rights, 1416, 1452 Rumsfeld v. Padilla, 370 Runyon v. McCrary, 887 Ruppert v. Caffey, 333 Rust v. Sullivan, 530, 1326 Rutan v. Republican Party of Illinois, 1318 Sable Communications, Inc. v. FCC. 1108 Saenz v. Roe, 459 Saia v. New York, 1212 Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 809 San Antonio Independent School Dist. v. Rodriguez, 841 an Diego, City of v. Roe, 1310 andvig v. Sessions, 1126 Santa Clara County v. Southern Pac. Railroad, 488 anta Fe Independent School Di trict v. Doe, 1655 aunders, State v., 571 axbe v. Washington Post Co., 1515 Schacht v. United tates, 11 9 chad v. Mount Ephraim, 10 -1 Schaumburg v. Citizen for a B tter Environment, 1272, 1356 Schechter Poultry orp. v. United States, 26, 123 chenck v. Pro- hoice etwork of Western ew York, 1242 Schenck v. Unit d tat , 947

XX..'(V

x.xxvi

TABLE OF CASES

Schlesinger v. Ballard, 792 Schlesinger v. Reservists Committee to Stop the War, 52 Schneider v. ew Jersey, 1214 Schuette v. Coalition to Defend Affirmative Action, 733 Schware v. Board of Bar Examiners, 1437 Screws v. United States, 881 Seaboard Air Line Ry. v. Blackwell, 229 Sealed Case, In re, 428 Seattle Mideast Awareness Campaign v. King County, 1252 Secretary of State v. Joseph H. Munson Co., 1357 Seeger, United States v., 1566 Sei Fujii v. State, 337 Seminole Tribe of Florida v. Florida, 184 Sessions v. Morales-Santana, 783 Shapero v. Kentucky Bar Ass'n, 1141 Shapiro v. Thompson, 462 Shaw v. Hunt, 751 Shaw v. Reno [Shaw I] , 745 Shelby County v. Holder, 892, 909 Shelley v. Kraemer, 863 Shelton v. Tucker, 1421 Sherb ert v. Verner, 1583, 1696 Shuttlesworth v. Birmingham, 1371 Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 1166, 1167 Sipuel v. Oklahoma, 660 Skinner v. Oklahoma, 510 Slaughter-House Cases, 451 Smith v. Alabama, 229 Smith v. Allwright, 861, 862 Smith v. Board of Examiners of Feeble-Minded, 510 Smith v. Collin, 1005, 1036 Smith v. Goguen, 1184 Smith v. United States, 1072 Snepp v. United States, 1384 Snyder v. Phelps, 1030 Sonzinsky v. United States, 195 Sorrell v. IMS Health, Co., 1155 Sosna v. Iowa, 463 South Carolina State Highway Department v. Barnwell Bros., 267 South Carolina v. Baker, 173 South Carolina v. Katzenbach, 888, 890 South Dakota v. Dole, 207 South Dakota v. Wayfair, 290

South-Central Timber Development, Inc. v. Wunnicke, 248 Southeastern Promotions, Ltd. v.

Conrad, 1253 South-Eastern Underwriters Ass'n, United States v., 287

Southern Pacific Co. v. Arizona, 224, 267 Southern Railway Co. v. King, 229 Speech ow.org v. Federal Election Comm'n, 1503 Speiser v. Randall, 1322 Spence v. Washington, 1185 Spokeo, Inc.v. Robins, 54 Stanley v. Georgia, 1060 Starns v. Malkerson, 462 State Farm Mut. Automobile Ins. Co. v. Campbell, 507 Staub v. Baxley, 1213 Stell v. Savannah-Chatham Bd. of Ed., 665 Stenberg v. Carhart, 540

Stevens, United States v. , 1126, 1361 Stolar, Application of, 1439 Stone v. Graham, 1657 Stone v. Mississippi, 637 Storer v. Brown, 1453 Strauder v. West Virginia, 656 Street v. New York, 1184 Stromberg v. California, 1176 Students Challenging Regulatory Agency Procedures (SCRAP) , United States v., 47 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 733 Sturges v. Crowninshield, 102, 221, 637 Sugarman v. Dougall, 795 Sullivan v. Little Hunting P ark, Inc., 887 Supreme Court of New Hampshire v. Piper, 277 Sveen v. Melin, 642 Swann v. Charlotte-Mecklenburg Board of Education, 668 Sweatt v. Painter, 660 Swift & Co. v. United States 118 Swift v. Tyson, 225 ' Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning ' Agency, 633 Takahashi v. Fish & Game Comm'n 794 ' Talley v. California, 1394 Tashjian v. Republican Party, 1 456 Tenn~ssee Secondary School Athletic Assn v. Brentwood Academy, 1313 Tennessee v. Lane, 921 Terminiello v. Chicago, 991 Terry v. Adams, 862 Texas Dept: of Housing and Commu~tr Affairs V. Inclusive Commumties Project, 690 Texas Monthly, Inc. v. Bullock Texas v. Johnson, 989, 1186 ' 1706

TABLE OF CASES

Thomas v. Chicago Park District, 1370 Thomas v. Review Board, 1586 Thomas, United States v., 1554 Thompson v. Western States Medical Center, 1154 Thornburgh v. American Coll. of, Obst. & Gyn., 528 Thornhill v. Alabama, 1431 Thornton, Estate of v. Caldor, Inc., 1703 Tilton v. Richardson, 1628 Timbs v. Indiana, 4 72 Time, Inc. v. Firestone, 1014 Time, Inc. v. Hill, 1021, 1022 Times Film Corp. v. Chicago, 1368 Timmons v. Twin Cities Area New Party, 1455 Tinker v. Des Moines Independent Community School District, 1290 Toll v. Moreno, 796 Toomer v. Witsell, 239 Torcaso v. Watkins, 1570 Touby v. United States, 391 Trans World Airlines v. Hardison, 1703 Trinity Lutheran Church of Columbia, Inc. v. Comer, 1699 Troxel v. Granville, 550 Trump v. Hawaii, 325, 680, 1580 Trump v. International Refugee Assistance Project, 324 Turner Broadcasting System, Inc. v. FCC, 1406, 1407, 1541, 1550 Turner v. Memphis, 664 Turner v. Sa.fley, 548 Twining v. New Jersey, 457,465 TXO Production Corp. v. Alliance Resources Corp., 507 Tyler v. Hillsdale Cty. Sheriffs Dep't, 484 U .S. Dept. of Agriculture v. Moreno, 651 U .S. Postal Service v. Council of Greenburgh Civic Ass'ns, 1257 U.S. Railroad Retirement Board v. Fritz, 650 U.S. Steel Corp. v. Multistate Tax Commission, 295 U.S. Term Limits, Inc. v. Thornton, 101 United Brotherhood of Carpenters v. Scott, 884 United Building & Construction Trades Council v . Mayor and Council of Camden, 271 United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'! Transit uth., 1252 United Foods, Inc., United States v., 1410

United Haulers Ass'n v. OneidaHerkimer Solid Waste Management Authority, 243 United Jewish Organizations v. Carey, 744 United Mine Workers v. Illinois State Bar Ass'n, 1430 United Public Workers v. Mitchell, 59, 1315 United States Civil Service Commission v. National Ass'n of Letter Carriers, 1316 United States Trust Co. v. ew Jersey, 640, 642 United Transportation Union v. State Bar of Michigan, 1430 Vacco v. Quill, 602, 603 Valentine v. Chrestensen, 1132 Valley Forge Christian College v. Americans United for Separation of Church and State, 51, 52 Van Orden v. Perry, 1688 Veazie Bank v. Fenno, 193 Vermont Agency of Natural Resources v. United States, 54 Vieth v. Jubelirer, 822, 825, 1459 Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 1133 Virginia v. Black, 1049 Virginia v. Hicks, 1355 Virginia v. Tennessee, 295 Virginia, United States v., 768 Vlandis v. Kline, 462 Walker v. Birmingham, 1376 Walker v. Texas Division, Sons of Confederate Veterans, Inc., 1270 Wallace v. Jaffree, 1562, 1646 Walz v. Tax Commission, 1627 Ward v. Rock Against Racism, 1236 Washington State Grange v. Washington State Republican Party, 1458 Washington v. Davis, 684 Washington v. Glucksberg, 595 Washington v. Seattle, 733 Washington v. Texas, 469 Wasson, Commonwealth v., 556 Watchtower Bible & Tract Society v. tratton, 1219 Waters v. Churchill, 1308 Watts v. United States, 1049 Wayne v. Hathcock, 621 Webb's Fabulous Pharmacies, Inc. v. Beckwith, 627 Webster v. Reproductive Health Services, 531 Weinberger v. Wiesenfeld, 790 Welsh v. United tate , 1566 Welton v. Missouri, 230, 231 Wengler v. Druggists utual Ins. o., 792

xxxvii

xxxviii

TABLE OF CASES

West Coast Hotel Co. v. Parrish, 501 West Lynn Creamery, Inc. v. Healy, 237 West River Bridge Co. v. Dix, 637 West Virginia State Bd. of Educ. v. Barnette, 1392, 1582 Western Tradition Partnership v. Montana, 1505 White v. Massachusetts Council of Construction Employers, Inc., 248,

249 Whitney v. California, 965 Whole Woman's Health et al. v. Hellerstedt, Commissioner, Texas Department of State Health Services, et al., 544 Wickard v. Filburn, 134 Widmar v. Vincent, 1283 Wieman v. Updegraff, 1437 Wiener v. United tates, 413 Williams v. Florida, 4 71 Williams v. Rhodes, 1452, 1454 Williams v. mith, 510 Williamson v. Lee Optical Co., 504, 650 Williams-Yulee v. Florida Bar, 1170 Willowbrook, Village of v. Olech, 653 Windsor, United States v., 37, 575 Wisconsin v. Mitchell, 1046 Wisconsin v. Yoder, 1586, 1588 Witters v. Washington Department of Services for Blind, 1629 Wolf v. Colorado, 471 Wolman v. Walter, 1620 Walston v. Reader's Digest Ass'n, Inc., 1014 Wood v. Georgia, 1525 Woodruff v. Parham, 223 Woods v. Cloyd W. Miller Co., 333,

336 Wooley v. Maynard, 1393 Worthen Co. v. Thomas, 640 Wyeth v. Levine, 285 Wygant v. Jackson Board of Education, 699 Wynar v. Douglas County School Dist., 1301 Yakus v. United States, 391 Yick Wo v. Hopkins, 681, 1182 Young v. American Mini Theatres, 1085 Young, Ex parte, 183, 929 Younger v. Harris, 1350 Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case], 298, 1381 Zablocki v. Redhail, 547 Zacchini v. Scripps-Howard Broadcasting Co., 1022 Zauderer v. Office of Disciplinary Counsel, 1141

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 1399 Zelman v. Simmons-Harris, 1635 Zivotofsky v. Clinton, 73 Zivotofsky v. Kerry , 74, 309 Zobrest v. Catalina Foothills School District, 1631 Zorach v . Clauson, 1621 Zschernig v. Miller, 221 Zurcher v. Stanford Daily, 1533

......... .

TABLE OF AUTHORITIES Ackerman & Golove, "Is NAFTA Constitutional?," 108 Harv. L. Rev. 799 (1995), 321

Ackerman, "Beyond Carolene Products," 98 Harv. L. Rev. 713 (1985), 655

Ackerman, "Constitutional Politics/Constitutional Law," 99 Yale L.J. 453 (1989), 28 Ackerman, "Discovering the Constitution," 93 Yale L.J. 1013 (1984), 27

Ackerman, "The Emergency Constitution," 113 Yale L.J. 1029 (2004), 349

Adams & Barmore, "Questioning Sincerity: The Role of the Courts After Hobby Lobby," 67 Stan. L. Rev. Online 59 (2014), 1569 Adler, "Girls! Girls! Girls!: The Supreme Court Confronts the GString," 80 N.Y.U. L. Rev. 1108 (2005), 1209

Adler, Note, "Post- 1odern Art and the Death of Obscenity Law," 99 Yale L .J. 135S (1990), 1073 Aleinikoff, "Co11stitutional Law in the Age of Balancing.., 96 Yale L.J. 943 (1987), 1010

Alexander & Praka h, ''Tempest in an Empty Teapot: Why the Constitution Dues Not Regulate Gerrymannermg,'' 50 Wm. & Mary L. Rev. 1 2008,, 824 Alexander, "Speech in the Local [Marketplace]," 14 San Diego L. Rev. 357(1977), 1139 Alexander, "Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory," 44 Hastings L.J. 921 (1993), 1183 Alfange, "Free Speech and Symbolic onduct: The Draft-Card Burning Case," 1968 up. t. Rev. 1, 1180 Althouse, "Why ot Heighten the crutiny of Congre sional Power When the States Undertake Policy Experiments?," 9 L wis & Clark L. Rev. 779(2005), 158 Amar & Katyal, "Bakke's Fate," 43 UCLA L. R v. 1745 (1996), 727 Amar, " ttainder and Amendment 2: Romer's Rightness," 95 Mich. L. Rev. 203 (1996), 563 mar, "On Impeaching Presidents," 28 Hofstra L. R v. 291 (1999), 441

Amsterdam, "The Void-for-Vagueness Doctrine in the Supreme Court," 109 U. Pa. L. Rev. 67 (1960), 1363 Anderson, "Libel and Press elfCensorship," 53 Tex. L. Rev. 422 (1 975), 1011

Ariens, "A Thrice-Told Tale, or Felix the Cat," 107 Harv. L. Rev. 620 (1 994), 128

Audi, ''The Separation of Church and State and the Obligations of Citizenship," 18 Phil. & Pub. Affairs 259 (1989), 1604 Aynes, "Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment," 70 Chi-Kent L. Rev. 1197 (1995), 467

Aynes, "Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the Slaughter-House Cases," 70 ChiKent L. Rev. 627 (1994), 456 Bagenstos, "The Anti-Leveraging Principle and the Spending Clause after NFIB," 101 Geo. L.J. 861 (2013), 217

Baker & Berman, "Getting Off the Dole: Why the Court Should Abandon its Spending Doctrine," 78 Indiana L.J . 459 (2003), 212 Baker, "Commercial [ peech]," 62 Iowa L. Rev. 1 (1976), 113 Baker, "Conditional Federal Spending After Lopez," 95 Colum. L. Rev. 1911 (1995), 211 Baker, "Press Rights and Government Power to Structure the Press," 34 U . Miami L. R v. 19 (19 0), 1515

Baker," cope of the First mendment Freedom of p ech," 25 UCLA L. Rev. 964 (197 ), 939, 11 0

Baker, "Turner Broadcasting: Content-Based Regulation of Per ons and Presses," 1994 up. Ct.Rev. 57, 1174, 141 Baker, "Unreasoned Rea onabl ness: Mandatory Parade Permits and Time, Place, and Manner Restrictions," 32 Ha tings L.J . 711 (19 1), 1214

Balkin & iegel, "Principl s, Practices, and oci I ovem 'nt -," 154 U. Pa. L. Rev. 927 (200 '), 756 Balkin, •· ome R alism About Pluralism : Legal Realist pproache to the First xi

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TABLE OF AUTHORITIES

Amendment," 1990 Duke L.J. 375, 942 Banks, "The Color of Desire: Fulfilling Adoptive Parents' Racial Preference Through Discriminatory State Action," 107 Yale L.J. 875 (1998), 674 Barnett, "Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional," 5 .Y.U. J .L. & Liberty 581 (2010), 167 Barnett, "Scrutiny Land," 106 Mich. L. Rev. 1479 (2008), 572 Barnett, "The Puzzle of Prior Restraint," 29 Stan. L. Rev. 539 (1977), 1373 Barron & Lederman, "The Commander in Chief at the Lowest Ebb-A Constitutional History," 121 Harv. L. Rev. (2008), 390 Barron & Lederman, ''The Commander In Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding," 121 Harv. L. Rev. 689 (2008), 389 Barron, "Access to the Press-A New First Amendment Right," 80 Harv. L. Rev. 1641 (1967), 936, 1547 Bartholet, "Where Do Black Children Belong? The Politics of Race Matching in Adoption," 139 U. Pa. L. Rev. 1163 (1991), 674 Baude, "Constitutional Liquidation," 79 Stanford L. Rev. 1 (2019), 79 Bell, "Diversity's Distractions," 103 Colum. L. Rev. 1622 (2003), 724 Bell, "Restraining the Heartless: Racist Speech and Minority Rights," 84 Ind. L.J. 963 (2009), 1046 Bellia, ''WikiLeaks and the Institutional Framework for ational Security Disclosures," 121 Yale L.J. 1448 (2012), 1385 Ben.k.ler, "A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of the Networked Fourth Estate," 46 Harv. C.R.-C.L. L. Rev. 311 (2011), 1385, 1526 Berger, "Standing to Sue in Public Actions: Is It a Constitutional Requirement?," 78 Yale L.J. 816 (1969), 47 Beschle, "The Conservative as Liberal; The Religion Clauses, Liberal eutrality, and the Approach of Justice O'Connor," 62 otr Dam L. Rev. 151 (1987), 1681

Beth, "Group Libel and Free Speech," 39 Minn. L. Rev. 167 (1955), 1005 BeVier, "An Informed Public, An Informing Press: The Search for a Constitutional Principle," 68 Calif. L.Rev. 482(1980), 1515 BeVier, "Campaign Finance Reform: Specious Arguments, Intractable Dilemmas," 94 Colum. L. Rev. 1258 (1994), 1472 BeVier, ''Rehabilitating Public Forum Doctrine: In Defense of Categories," 1993 Sup. Ct. Rev., 1256 BeVier, "The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle," 30 Stan. L. Rev. 299 (1978), 937 Bezanson, "Institutional Speech," 80 Iowa L. Rev. 735 (1 995), 1418 Bhagwat, "The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence," 2007 U. Ill. L. Rev. 783, 1173 Bickel, ''The Original Understanding and the Segregation Decision," 69 Harv. L. Rev. 1 (1955), 665 Bickel, "The Supreme Court, 1960 Term-Foreword: The Passive Virtues," 75 Harv. L. Rev. 40 (1961), 27 Bilder, ''The Corporate Origins of Judicial Review," 116 Yale L.J . 502 (2006), 13 Black, ''The Bill of Rights," 35 N.Y.U. L. Rev. 865 (1960), 943 Black, ''The Lawfulness of the Segregation Decisions," 69 Yale L.J. 421 (1960), 666 Blasi & Monaghan, "The First Amendment and Cigarette Advertising," 250 JAMA 502 (1986), 1155 Blasi, "Free Speech and the Widening G~e of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All," 94 Colum. L. Rev. 1281 (1994), 14 72 Blasi, "Prior Restraints on Demonstrations," 68 Mich. L. Rev. 14~~(~970), 996, 1214, 1373, 1376 Blasi, ~hx Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing" 33 Wm. & Mary L. Rev. 611 (1992) 1209 ' Blasi, "The Checking Value in First Amendment Theory," 1977 AB F Res. J. 521, 938 · · ·

..

TABLE OF AUTHORITIES

Blasi, "The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California," 29 Wm. & Mary L. Rev. 653 (1988), 970 Blasi, "The Pathological Perspective and the First Amendment," 85 Colum. L. Rev. 449 (1985), 940 Blasi, "Toward a Theory of Prior Restraint: The Central Linkage," 66 Minn. L. Rev. 11 (1981), 1373 Blasi, Essay, "School Vouchers and Religious Liberty: Seven Questions from Madison's Memorial and Remonstrance," 87 Cornell L. Rev. 783 (2002), 1643 Blocher, Joseph, "Popular Constitutionalism and the States Attorneys General," 122 Harv. L. Rev. F. 108 (2011), 111 Bloustein, "The Origin, Validity, and Interrelationships of the Political Values Served by Freedom of Expression," 33 Rutgers L. Rev. 372 (1981), 940 Bogen, "First Amendmen t Ancillary Doctrines," 37 Md. L. Rev. 679 (1978), 1368 Bollinger, "Freedom of t he Press and Public Acce.,s: Toward a Theory of P artial Regulat ion of the Mass Medi n," 75 Mich. L. Rev. 1 (1976), 1546 Bor k, "N'cntral Principles and Some First Aroe.1.dment Problems," 47 Ind. L.,T. l (1971), 937, 954, 977 Bork, "The 1mpossi.bility of Finding Welfare Rights in the Constitution ," 1979 Wash. U . L.Q 695,80 4 Bowie, "Why the Constitution Was Written Down," 71 Stan. L. Rev. (20 19), 13 Bowman, "Street Harassment and the Informal Ghettoization of Women," 106 Harv. L. Rev. 517 (1993) , 989 Bra dley & Morrison, "Historical Gloss and the Separation of Power s," 126 Harv. L. Rev. (2012), 308 Brau neis, "The Fou ndation of Our 'Regulatory Takings Jurispr udence': The Myth and Meaning of Justice Holmes's Opinion in P ennsylvania Coal Co. v. Mahon," 106 Yale L.J. 61 3 (1996) , 626 Brenna n , "Address," 32 Rutgers L. Rev. 173 (1979), 1519 Brest, "Con stitu tional Citizen ship," 34 Clev. St. L. Rev. 175 (1986), 27

Brest, "Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive," 1971 Sup. Ct. Rev. 95, 683, 1182 Brest, "The Supreme Court, 1975 Term- Foreword: In Defense of the Antidiscrimination Principle," 90 Harv. L. Rev. 1 (1976) , 683 Briffault, "Defining the Constitutional Question in Partisan Gerrymandering," 14 Corn. J.L. & Pub. Pol'y 397 (2005), 824 Brown et al. , ''The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women," 80 Yale L.J . 871 (1971), 757 Brown, Note ''The Nineteenth Amendment and Women's Equality," 102 Yale L.J . 2175 (1993), 757 Browne, "Title VII as Censorship: Hostile-Environment Hara ssment and the First Amendmen t," 52 Ohio State L.J . 481 (1991), 1048 Brownstein, ''The Nonforum as a First Amendment Category: Bringing Order Out of th e Chaos of Free Speech Cases Involving School-Sponsored Activities," 42 U.C. Davis L. Rev. 717 (2009), 1298 Brudney, ''The First Amendment and Commercial Speech," 53 B.C. L. Rev. 1153 (2012), 1137 Bur nett, "Untied States: American Expansion and Territorial Deannexation," 72 U . Chi. L. Rev. 797 (2005), 341 Cahn , "J urisprudence," 30 NYU L. Rev. 150 (1955), 665 Caine, ''The Trouble with 'Fighting Words': Chaplinsky v. New Hampshire Is a Threat to First Amendment Values an d Should Be Overruled," 88 Marq. L. Rev. 441 (2004), 988 Calabresi & Prakash , ''The President's Power to Execute the Law," 104 Yale L.J. 541 (1 994), 413 Calabresi, St even G. , "A Government of Limited and Enumerated Powers: In Defense of United States v. Lopez," 94 Mich . L. Rev. 752 (1995) , 109 Calleros, "Paternalis m, Cou nterspeech, and Campu HateSpeech [Codes]," 27 Ariz. t. L.J . 1249 (1995), 1046 Camin ker, " · ppropriate' eansEnds onstra ints on .., ction Five

xlii

TABLE OF AUTHORITIES

Powers," 63 Stan. L. Rev. 1127 (2001), 908 Carter, "The Constitutionality of the War Powers Resolution," 70 Va. L. Rev. 101 (1984), 343 Casebeer, "Aliquippa: The Company Town and Contested Power in the Construction of Law," 43 Buff. L. Rev. 617 (1995), 129 Casper, "Gerry," 56 Stan. L. Rev. 647 (2002), 1052 Cass, "Commercial Speech, Constitutionalism, Collective Choice," 56 U. Cin. L. Rev. 1317 (1988), 1137 Cass, "First Amendment Access to Government Facilities," 65 Va. L. Rev. 1287 (1979), 1212 Cass, ''Massachusetts v. EPA: The Inconvenient Truth About Precedent," 93 Va. L. Rev. In Brief 73 (2007), 48 Casto, "James Iredell and the American Origins of Judicial Review," 27 Conn. L. Rev. 329 (1995), 13 Chafee, "Book Review," 62 Harv. L. Rev. 891 (1949), 937, 954 Chapman, "Adjudicating Religious Sincerity," 92 Wash. L. Rev. 1185 (2017), 1569 Chemerinsky, "Against Sovereign Immunity," 53 Stan. L. Rev. 1201 (2001), 185 Chemeri.nsky, "Assessing Chief Justice William Rehnquist," 154 U. Pa. L. Rev. 1331 (2006), 151 Chemeri.nsky, "The Values of, Federalism," 47 Fla L. Rev. 499 (1995), 108 Ch.in, "Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration," 46 UCLA L. Rev. 1 (1998), 680 Ch.in, "Unexplainable on Grounds of Race: Doubts About Yick Wo," 2008 U.ill.L.Rev. 1359,681 Ch.in, Gabriel J., "The Plessy Myth: Justice Harlan and the Chinese Cases," 82 Iowa L. Rev. 151 (1996), 659 Choper, "Religion in the Schools," 47 Minn. L. Rev. 329 (1963), 1647 Choper, "The Religion Clauses of the First Amendment: Reconciling the Conflict," 41 U. Pitt. L. Rev. 673 1980), 1696 Churchill. "Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second

Amendment," 25 Law & Hist. Rev. 139 (2007), 483 . . Clark, "Enduring Constitutional Issues," 61 Tul. L. Rev. 1093 (1987), 22 . Clark, K.B., ''The Desegregation Cases," 5 Vill. L. Rev. 224 (1959), 665 Coase "Advertising and Free Spe~ch," 6 J. Legal Studies 1 (1977), 1138 Coase, "The Federal Communications Commission," 2 J. L. & Econ. 1 (1959), 1544 Coase, R.H., ''The Economics of the First Amendment: The Market for Goods and the Market for Ideas," 64 Am. Econ. Rev. Proc. 384 (1974), 942 Coates, "Corporate Speech and the First Amendment: History, Data, and Implications," 30 Const. Comment. 223 (2015), 1503 Coenen, "A Constitution of Collaboration: Protecting Fundamental Values with Secon dLook Rules of Interbranch Dialogue," 42 Wm. & Mary L. R ev. 1575 (2001), 24 Coenen, "A Rhetoric for Ratification: The Argument of 'The Federalist' and its Impact on Constitutional Interpretation," 56 Duke L. J . 469 (2006), 107 Coenen, "Business Subsidies and the Dormant Commerce Clause," 107 Yale L.J. 965 (1998), 238 Coenen, "State User Fees and the Dormant Commerce Clause " 50 Vande::;bilt L. Rev. 795 (1997), 252 Coenen, Untangling the Market Participant Exemption to the Dormant Commerce Clause " 88 Mich ...L. Rev. 395 (1989), 252 Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to a n Old Enigma," 35 Stan. L. Rev. 387 (1983), 289 Cohen, "Discrimination Against N e w State Citizens: An Update, 11 Const. Comm. 73 (1994) 460 Cohen, "Equal Treatment for Ne~comers: The Core Meaning of National and State Citizenship ,, 1 Cons~; Comm. 9 (1984), 464 ' Cohen, _State Law in Equality Clothing: A Comment on [Allegheny]," 38 UCLA L Rev 87 (1990), 653 . · Cole, "~eyond Unconstitutional Conditions: Charting Spheres of

TABLE OF AUTHORITIES

Neutrality in Government-Funded Speech," 67 N.Y.U. L. Rev. 675 (1992), 1330 Cole, "Playing by Pornography's Rules: The Regulation of Sexual Expression," 143 U. Pa. L. Rev. 111 (1994), 1071 Cole, "The First Amendment's Borders," 6 Harv. L. & Pol'y Rev. 147 (2012), 985 Collins, "Economic Union as a Constitutional Value," 63 N.Y.U. L. Rev. 43 (1988), 262 Collins, Shiffrin, Chemerinsky & Sullivan, "Symposium: Thoughts On Commercial Speech: A Roundtable Discussion," 41 Loy. L.A. L. Rev. 333 (2007), 1137 Corbin, "The First Amendment Right Against Compelled Listening," 89 Bos. U. L. Rev. 939 (2009), 1418 Corwin, "The 'Higher Law' Background of American Constitutional Law," 42 Harv. L. Rev. 149 (1928-29), 485 Corwin, "The Basic Doctrine of American Constitutional Law," 12 Mich. L. Rev. 247 (1914), 485 Cox, "Foreword- Constitutional Adjudication and the Promotion of Human Rights," 80 Harv. L. Rev. 91 (1966), 897 Cox, "Foreword-Freedom of Expression in t he Burger Court," 94 Harv. L. Rev. 1 (1980), 1385, 1521 Cox, ''The Rule of Congress in Constitutional Determinations," 40 U . Cinn. L. Rev. 199 (1971), 897 Crosskey, "Charles Fairman, 'Legislative History,' and the Constitutional Limitations on State Authority," 22 U. Chi. L. Rev. 1 (1954), 467 Currie, "The Constitution in the Supreme Court: Limitations on State Power," 51 U. Chi. L. Rev. 329 (1983), 456 Cushman, ''The National Police Power Under the Commerce Clause of the Constitution," 3 Minn. L. Rev. 289 (1919), 11 Dailey, "Federalism and Families," 143 U. Pa. L. Rev. 1787 (1995), 14 Delgado & Yun," 'The Speech W~ Hate': First Amendment Totahsm, The ACLU and the Principle of Dialogic Politics," 27 Ariz. St. L.J . 1281 (1995), 1046 Delgado, "Words that Wound: A Tort Action for Racial Insults, Epithets,

and Name-Calling," 17 Harv. C.R. C.L. L. Rev. 133 (1982), 1045 Dellinger, ''The Legitimacy of Constitutional Change: Rethinking the Amendment Process," 97 Harv. L. Rev. 386 (1983), 69 Denning & Lary, "Retail Store SizeCapping Ordinances and the Dormant Commerce Clause Doctrine," 37 Urb. Law. 907 (2005), 260 Denning, "Confederation-Era Discrimination Against Interstate Commerce and the Legitimacy of the Dormant Commerce Clause," 94 Ky. L.J . 37 (2005-06), 222 Denning, "Reconstructing the Dormant Commerce Clause Doctrine," 50 Wm. & Mary L. Rev. 417 (2008), 223 Diamond, "The First Amendment and Public Schools: the Case Against Judicial Intervention," 59 Tex. L. Rev. 477 (1981), 1297 Donohue, ''Terrorist Speech and the Future of Free Expression," 27 Cardozo L. Rev. 233 (2005), 984 Dorf, "Facial Challenges to State and Federal Statutes," 46 Stan. L. Rev. 235 (1994), 1356 Dorf, "Incidental Burdens on Fundamental Rights," 109 Harv. L. Rev. 1175(1996), 1184 Douglas, "The Rhetorical Uses of Marbury v. Madison: The Emergence of a 'Great Case,' " 38 Wake Forest L. Rev. 375 (2003), 15 Douglas, Maura, "Finding Viewpoint Neutrality in Our Constitutional Constellation," 20 U. Pa. J. Const. L. 727 (2018), 1347 Dworkin, "Against the Male Flood: Censorship, Pornography, and Equality," 8 Harv. Women's L.J. 1 (1985), 1076 Dyk, "Newsgathering, Press Access, and the First Amendment," 44 Stan. L. Rev. 927(1992), 1515 Easterbrook, "Antitrust and the Economics of Federalism," 26 J .L. & Econ. 23 (1983), 10 Easterbrook, "Insider Trading, ecret Agents, Evidentiary Privileges, and the Production of Information," 19 1 up. Ct. Rev. 309, 1385 Easterbrook, "The upreme ourt, 19 3 Term- Foreword: The Court and the Economic ystem," 9 Harv. L. Rev. 4 (19 -1), 49 Edelman, "Free Press v. Privacy: Haunted by the Oho t of J ustice

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Black," 68 Tex. L. Rev. 1195 (1990), 1021 Edmondson, "Senate Rebukes Trump Over Troop Withdrawals From Syria and Afghanistan," .Y. Times (Jan. 31, 2019), 345 Eisenberg, "Disproportionate Impact and Illicit Motive: Theories of Constitutional Adjudication," 52 .Y.U. L. Rev. 36 (1977), 689 Ellickson, "Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public Space Zoning," 105 Yale L.J. 1165 (1996), 1273 Elliott, "I S v. Chadha: The Administrative Constitution, the Constitution, and the Legislative Veto," 1983 Sup. Ct. Rev. 125, 400 Ely, "Another pin on [Allegheny]," 38 UCLA L. Rev. 107 (1990), 653 Ely, "Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis," 8 Harv. L. Rev. 1482 (1975), 943, 945, 1172, 1180, 1181, 11 5 Ely, "Legislative and Administrative Motivation in Constitutional Law,"

79 Yale L.J . 1205 (1970), 683, 1182 Ely, "Suppose Congress Wanted a War Powers Act That Worked," 88 Colum. L. Rev. 1379 (1988), 343 ' Ely, "The Constitutionality of Reverse Racial Discrimination," 41 U. Chi. L. Rev. 723 (1974), 691 Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade," 82 Yale L.J. 920 (1973), 525 Emerson, "The Doctrine of Prior Restraint," 20 Law & Contemp. Probs. 648 (1955), 1372 Emerson, "Toward a General Theory of the First Amendment," 72 Yale L.J. 877 (1963), 1010 Engdahl, "The Spending Power," 44 Duke L.J. 1 (1994), 207 Epps, "Interpreting the Fourteenth Amendment: Two Don'ts and Three Dos," 16 Wm. & Mary Bill of Rts. J . 433 (2007), 908 Epstein, "Property, Speech, and the Politics of Distrust," 59 U. Chi. L. Rev. 41 (1992), 942 Epstein, "Substantive Due Process by Any Other Name: The Abortion Cases," 1973 Sup. Ct. Rev. 159, 525 Epstein, "The Proper Scope of the Commerce Power," 73 Va. L. Rev. 1387 (1987), 136 p tein, "The Supreme Court, 1987 Term- Foreword: Unconstitutional

Conditions, State Power, and the Limits of Consent," 102 Harv. L . Rev. 4 (1988), 211, 1302,_ 1322 Epstein, ''Was New,':ork Tim~s v . Sullivan Wrong?, 53 U. Chi. L. Rev. 782(1986), 1011 Esbeck "A Constitutional Case for Gove~nmental Cooperation with Faith-Based Social Service Providers," 46 Emory L.J . 1 (1997), 1643 Eskridge, "All About Words: Early Understandings of the 'Judicial Power' in Statutory Interpretation, 1776-1806," 101 Colum. L . Rev. 990 (2001), 12 Estrich & Sullivan, "Abortion Politics: Writing for an Audience of One," 138 U. Pa. L. Rev. 119 (1989), 531 Eule, "Laying the Dormant Commerce Clause to Rest," 91 Yale L.J. 425 (1982), 278 Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding," 2 Stan. L. Rev. 5 (1949), 456,467,470 Fallon, "Making Sense of Overbreadth," 100 Yale L .J . 853 (1991), 1349 Fallon, "Marbury and the Constitutional Mind: A Bicentennial Essay on the W ages of Doctrinal Tension," 91 Calif. L. Rev. 1 (2003), 16 Fallon, "Sexual Harassment, Content-Neutrality, and th e First Amendment Dog That Didn't Bark," 1994 S. Ct. Rev. 1, 1048 Fallon, "The Linkage Between Justiciability and Remedies- And Their Connections to Substantive Rights," 92 Va. L. Rev. 633 (2006), 1568 Fallon, "Two Senses of Autonomy," 46 Stan. L. Rev. 875 (1994), 1138 Farber & Nowak, "The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication," 70 Va. L. Rev. 1219 (1984), 1212, 1255 Farber & Sherry, "The Pariah Principle," 13 Const. Comment 257 (1996), 562 . Far?er, "Commercial Speech and First Amendment Theory," 74 Nw. U.L.Rev. 372(1979) 1137 Farber, "Constitutional' adenzas " 56 Dr~ke I._,. _Rev. 833 (2008), 57'4 Farber, J~d1c1al Review and Its Alternatives: An American Tai ,,

TABLE OF AUTHORITIES

38 Wake Forest L. Rev. 415 (2003), 28 Farber, "The Categorical Approach to Protecting Speech in American Constitutional Law," 84 Ind. L.J. 917 (2009), 944 Field, "Garcia v. San Antonio Metro. Transit Authority: The Demise of a Misguided Doctrine," 99 Harv. L. Rev. 84 (1985), 112 Finkelman, "James Madison a nd the Bill of Rights: A Reluctant Paternity," 1990 S. Ct. L. Rev. 301, 1560 Fiorina, "Legislative Choice of Regulatory Forms: Legal Process or Administrative Process," 39 Pub. Choice 33 (1 982), 392 Fiss, "Free Speech and Social Structure," 71 Iowa L. Rev. 1405 (1986), 938, 1547 Fiss, "State Activism and State Censorship," 100 Yale L.J. 2087 (1991), 1330 Flaherty, "John Marshall, McCulloch v. Marylan d, and 'We the People': Revisions ia Need of Revising," 43 Wm. & Mary L. Rev. 1339 (2002), 99 Foley, "Equal-Dollars-Per-Voter: A Constitutional Principle of Campaign Finance," 94 Colum. L. Rev. 1204 (1994), 1472 Fontana, "Federal Decentralization," 104 Va. L. Rev. 727 (2018), 108 Forde-Mazrui, "The Constitutional Implications of Race-Neutral Affirmative Action," 88 Geo. L.J. 2331 (2000), 726 Forman, James, "The Rise and Fall of School Vouchers: A Story of Religion, Race, and Politics," 54 U.C.L.A. L. Rev. 547 (2007), 1644 Frankfurter, "A ote on Advisory Opinions," 37 Harv. L. Rev. 1002 (1924), 36 Frankfurter, "Mr. Justice Roberts," 104 U. Pa. L . Rev. 311 (1955), 128 Franklin, "A Declaratory Judgment Alternative to Current Libel Law," 74 Calif. L. Rev. 809 (19 6), 1011 Frantz, "Is the First Amendment Law? A Reply to Professor Mendelson," 51 Calif. L. Rev. 729 (1963), 943 Frantz, "The First Amendment in the Balance," 71 Yale L.J . (1962), 943 Freedman, "Sex Equality, Sex Differences, and the Supreme ourt," 92 Yale L.J . 913 (19 3), 785

Freund, ''The Debs Case and Freedom of Speech," The ew Republic, May 3, 1919, reprinted at, 40 U. Chi. L. Rev. 239 (1973), 956 Fried, "A New First Amendment Jurisprudence: A Threat to Liberty," 59 U. Chi. L. Rev. 225 (1 992), 1045 Fried, "Constitutional Doctrine," 107 Harv. L. Rev. 1140 (1994), 539 Friedman, "A Reaffirmation: The Authenticity of the Roberts Memorandum, or Felix the onForger," 142 U . Pa. L. Rev. 1985 (1 994), 128 Friedman, "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation," 142 U. Pa. L. Rev. 1891 (1994), 128 Friendly, "The Bill of Rights as a Code of Criminal Procedure," 53 Cal. L. Rev. 929 (1965), 467 Gard, "Fighting Words as Free Speech," 58 Wash. U. L.Q. 531 (1980), 988 Gardbaum, Stephen, ''The 'Horizontal Effect' of Constitutional Rights," 102 Mich. L. Rev. 387 (2003), 877 Gellman, "Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence?," 39 UCLA L. Rev. 333 (1 991), 1046 Genevieve Lakier, "Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment," 2016 Sup. Ct. Rev. 223 (2016), 1160 George, "Gratz and Grutter: Some Hard Questions," 103 Colum. L. Rev. 1634 (2003), 723 Gerhardt, ''The Lessons of Impeachment History," 67 Geo. Wash. L. Rev. 603 (1999), 439 Gey, ''The Apologetics of Suppression: The Regulation of Pornography a Act and Idea," 86 Mich. L. Rev. 1564 (1988), 1071 Ginsburg & Flagg, .. ome Reflections on the Feminist Thought of the 1970s," 19 9 U. Chi. L. F . 9, 75 Ginsburg, "Constitutional Adjudication in the United tate:s as a Means of dvancing the Equal tature of Men and Women Under the Law," 26 Hofstr a L. Re . 263 (1997), 75 Ginsburg, " ome Thought on utonomy and Equalit in

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Relation to Roe v. Wade," 63 N.C. L. Rev. 375 (1985), 526 Glennon, ''Taxation and Equal Protection," 58 Geo. Wash. L. Rev. 261 (1990), 653 Goldberger, "A Reconsideration of Cox v. ew Hampshire: Can Demonstrators be Required to Pay the Costs of Using America's Public Forums?," 62 Tex. L. Rev. 403 (1983), 1214 Goldberger, "Judicial Scrutiny in Public Forum Ca es: Misplaced Trust in the Judgment of Public Officials," 32 Buffalo L. Rev. 175 (1983), 1212 Goldsmith and Hathaway, ''The Downsides of Bombing yria," Lawfare, April 10, 201 , 345 Goldsmith, Jack, "Zivotofsky II as Precedent in the Exceutive Branch, 129 Harv. L. Rev. 112 (2015), 392 Goldstein, ' ot Hearing History: A Critique of Chief Justice Roberts's Reinterpretation of Brown," 69 Ohio St. L.J. 791 (2008), 744 Graber, "James Buchanan as Savior? Judicial Power, Political Fragmentation, and the Failed 1831 Repeal of Section 25," 88 Or. L. Rev. 95 (2009), 19 Greenawalt, "Insults and Epithets, Are They Protected Speech?," 42 Rutgers L. Rev. 287 (1990), 988 Greenawalt, "Religious Expression in the Public Square," 29 Loyola L. Rev. (1996), 1604 Greenberg, "Diversity, the University, and the World Outside," 103 Colum. L. Rev. 1610 (2003), 724 Greene, "Is Korematsu Good Law?," 128 Yale L.J . F. 629 (2019), 680 Greene, 'The Political Balance of the Religion Clauses," 102'Yale L.J. 1611 (1993), 1604 Grey, "Civil Rights vs. Civil Liberties: The Case of Discriminatory Verbal Harassment," 8 Soc. Phil. & Pol. 81 (1991), 1045 Grey, "Do We Have an Unwritten Constitution?," 27 Stan. L. Rev. 703 (1975), 485 Grey, "How to Write a Speech Code Without Really Trying: Reflections on the Stanford Experience," 29 U. . Davis L. Rev. 891 (1996),

1037 Oro s, "Chaos and Rules: Should Re :ponses to Violent Crises Always

be Constitutional?," 112 Yale L .J. 1011 (2003), 350 Gunther, "Commentary," 71 Chi.Kent L. Rev. 813 (1996), 656 Gunther, "Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate," 36 Stan. L. Rev. 895 (1984), 32 Gunther, "In Search of Judicial Quality on a Changing Court: The Case of Justice Powell," 24 Stan. L. Rev. 1001(1972), 944 Gunther, "Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process," 22 UCLA L. Rev. 30 (1974), 425, 427 Gunther, "Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History," 27 Stan. L. Rev. 719 (1975), 194, 955, 960, 981 Gunther, ''Reflections on Robel: It's ot What the Court Did but t he Way that It Did It," 20 Stan. L . Rev. 1140 (1968), 1349 Gunther, ''The Subtle Vices of the 'Passive Virtues' -A Commen t on Principle and Expediency in Judicial Review," 64 Colum. L. Rev. 1 (1964), 22 Gunther, ''The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," 86 Harv. L. Rev. 1 (1972), 656, 709 Gunther, ''Unearthing John Marshall's Major Out-of-Court Constitutional Commentary," 21 Stan. L. Rev. 449 (1969), 89 Hafen, "Hazelwood School District and the Role of First Amendmen t Institutions," 1988 Duke L.J . 685 1297 ' Hale, "Unconstitutional Conditions and Constitutional Rights," 35 Colum. L. ~ev. (193_5), ?11, 1322 Hambu~g~r, A Constitutional Right of_Reli~ous Exemption: An H1stor1cal Perspective" 60 Geo Wash. L. Rev. 915 (1992) 1601 · Harc?urt, "Introduction: G~ns Cnm~, a~d Punishment in ' Amenca, 43 Ariz. L. Rev 261 (2001), 483 . Har_t, ''.'f'he Pow~r ~f ongress to L1m1t the Junsd1ction of F ederal Courts: An Exercise in Dial t" ,, 66 Harv. L. Rev. 1362 (1953)~

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Hasday, "Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change," 93 Minn. L. Rev. 96 (2008), 781 Hasen, "The Untimely Death of Bush v. Gore," 60 Stan. L. Rev. 1 (2007), 813 Healy, "Brandenburg in a Time of Terror," 84 Notre Dame L. Rev. 655 (2009), 984 Heinzerling, "The Commercial Constitution," 1995 Sup. Ct. Rev. 217,224 Hellman, "The Expressive Dimension of Equal Protection," 85 Minn. L. Rev. 1 (2000), 563 Henkin, "Foreword: On Drawing Lines," 82 Harv. L. Rev. 63 (1968), 1180 Henkin, "Is There a 'Political Question' Doctrine?," 85 Yale L.J. 597 (1976), 60 Henkin, ''Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391 (1963), 1060, 1069 Henkin, "Selective Incorporation' in the 14th Amendment," 73 Yale L.J. 74 (1963), 467 Hershkoff & Cohen, "Begging to Differ: The First Amendment and the Right to Beg," 104 Harv. L. Rev. 896 (1991), 1273 Hills, "Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar's Analysis of Romer," 95 Mich. L. Rev. 236 (1996), 563 Hills, "Poverty, Residency, and Federalism: States' Duty of I mpartiality Toward Newcomers," 1999 Sup. Ct. Rev. 277, 463 Hirschfeld Davis and Schmitt, "Senate Votes to End Aid for Yemen Fight Over Khashoggi Killing and Saudis' War Aims," N .Y. Times (Dec. 13, 2018), 345 Hirsch!, "The Political Origins of Judicial Empowerment Through Constitutionalization: Lessons from Four Constitutional Revolutions," 25 Law & Soc. Inquiry 91 (2000), 29 Horowitz, Paul, "The Hobby Lobby Mome nt," 128 Harv. L. Rev. 154 (2014), 1615 Horwitz, "Three Faces of Deference," 83 Notre Dame L. Rev. 3 (2008), 1452 Hunte r & Law, "Brief Amici Curiae of Feminist Anti- ensorship Task

Force," 21 U. Mich. J .L. Ref. 69 (1987-88), 1081 Ingber, "The Marketplace of Ideas: A Legitimizing Myth," 1984 Duke L.J. 1, 936 Issacharoff & Karlan, ''The Hydraulics of Campaign Finance Reform," 77 Tex. L. Rev. 1705 (1999), 14 70 Issacharoff, "Gerrymandering and Political Cartels," 116 Harv. L . Rev. 593 (2002), 824 Issacharoff, "Political Judgmen ts," 68 U. Chi. L. Rev. 637 (2001), 73 Jackson & Jeffries, "Commercial Speech: Economic Due Process and the First Amendment," 65 Va. L. Rev. 1(1979), 1137, 1414 Jackson, ''The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity," 98 Yale. L.J. 1 (1988), 185 Jeffries, "Bakke Revisited," 2003 Sup. Ct. Rev. 1, 722 J effries, "In Praise of the Eleventh Amendment and Section 1983," 84 Va. L. Rev. 47 (1998), 188 Jeffries, ''Legality, Vagueness, and the Construction of Statutes," 71 Va. L. Rev. 189 (1985), 1363 Jeffries, ''Rethinking Prior Restraint," 92 Yale L.J. 409 (1 983), 1373, 1376 Jeffries, "The Right-Remedy Gap in Constitutional Law," 109 Yale L.J. 87 (1999), 188 Jenkins, "Constitutional Lessons for the Next Generation of Public ingle- ex Elementary and Secondary Schools," 47 Wm. & Mary L. Rev. 1953 (2006), 776 Jinks, "The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India," 22 Mich. J. Int'l L. 311 (2001), 348 Joo, "Yick Wo Re-Revisited: onblack onwhites and Fourteenth Amendment History," 200 U. Ill. L.Rev. 1427, 681 Kagan, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," 63 U . Chi. L. Rev. 413 (1996), 104 Kagan, "Regulation of Hate peech a nd Pornography After R. . . ," 60 U. Chi. L. Rev. 73 (1993), 10 0 Kalven, "Privacy in Tort Law- Wer Warren and Brand is Wrong?," 31 Law , ontemp. Prob. 326 (1 6), 1021

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Kalven, "The Concept of the Public Forum: Cox v. Louisiana," 1965 Sup. Ct. Rev. 1, 1210, 1211, 1212, 1214 Kalven, "The Metaphysics of the Law of Obscenity," 1960 Sup. Ct. Rev. 1, 944, 1070 Kalven, "The ew York Times Case: A ote on 'The Central Meaning of the First Amendment,' " 1964 Sup. Ct. Rev. 191, 1010 Kalven, ''The Reasonable Man and the First Amendment: Hill, Butts, and Walker," 1967 Sup. Ct. Rev. 267, 1022 Kalven, ''Upon Rereading Mr. Justice Black on the First Amendment," 14 UCLA L. Rev. 42 (1967), 943, 1248 Karlan, "Easing the Spring: Strict Scrutiny and Affirmative Action After the Redistricting Cases," 43 Wm. & Mary L. Rev. 1569 (2002), 755 Karlan, "Foreword: Loving Lawrence," 102 Mich. L. Rev. 1447 (2004), 572 Karlan, "The Boundaries of Liberty After Lawrence v. TexasForeword: Loving Lawrence," 102 Mich. L. Rev. 1447 (2004), 571 Karst, "Book Review," 89 Harv. L. Rev. 1028 (1976), 526 Karst, "Equality as a Central Principle in the First Amendment," 43 U. Chi. L. Rev. 20 (1975), 1349 Karst, "Invidious Discrimination: Justice Douglas and the Return of the 'Natural-Law-Due-Process Formula,'", 16 UCLA L. Rev. 716 (1969), 655 Karst, "The Freedom of Intimate Association," 89 Yale L.J. 624 (1980), 550 Karst, ''The Revival of ForwardLooking Affirmative Action," 104 Colum. L. Rev. 60 (2004, 723 Karst, "Threats and Meanings: How the Facts Govern First Amendment Doctrine," 58 Stan. L. Rev. 1337 (2006), 982 Karst, "Woman's Constitution," 1984 Duke L.J. 447, 785 Kendrick & Schwartzman, "The Etiquette of Animus," 132 Harv. L . Rev. 133 (2018), 1680 Klarman, "An Interpretive History of Modern Equal Protection," 90 Mich. L . Rev. 213 (1991), 650 Klarman. "Brown, Originalism and Constitutional Theory," 81 Va. L. Rev. 1881 (1995), 666

Klarman, "Constitutional Fetishism and the Clinton Impeachment Debate," 85 Va. L. Rev. 631 (1999), 440,441 Klarman, "Fidelity, Indeterminacy, and the Problem of Constitutional Evil," 65 Fordham L. Rev. 1739 (1997), 527 Klarman, "How Great Were the 'Great' Marshall Court Decisions?," 87 Va. L. Rev. 1111 (2001), 15 Kmiec & McGinnis, "The Contract Clause: A Return to the Original Understanding," 14 Hastings Const. L. Q. 525 (1987), 642 Koppelman, "Free Speech and Pornography: A Response to James Weinstein," 31 NYU Rev. L. & Soc. Change 899 (2007), 1071 Kozinski & Banner, ''Who's Afraid of Commercial Speech?," 76 Va. L. Rev. 627 (1990), 1139 Kramer, ''Madison's Audience," 112 Harv. L. Rev. 611 (1999), 106 Kramer, "Putting the Politics Back in to the Political Safeguards of Federalism," 100 Colum. L. Rev. 215 (2000), 111 Kramer, ''The Supreme Court, 2000 Term- Foreword: We the Court," 115 Harv. L. Rev. 5 (2001), 13 Kramer, ''Understanding Federalism," 47 Vand. L. Rev. 1485 (1994), 111 Krattenmaker & Powe, "The Fairness Doctrine Today: A Constitutional Curiosity and An Impossible Dream," 1985 Duke L.J. 151, 1546 Kreimer, "Allocational Sanctions: the Problem of Negative Rights in a Positive State," 132 U. Pa. L. Rev. 1293 (1984), 1302, 1322 Krotoszynski & Carpenter, ''The Return of Seditious Libel," 55 UCLA L. Rev. 1239 (2008), 935 Krotoszynski, "If Judges Were Angels: Religious Equality Free Exercise, and the ' (Underappreciated) Merits of Smith," 102 Nw. L. Rev. 1189 (2008), 1604 Kurland, "Of Church and State and the Supreme Court," 29 U . Ch i . L . Rev. 1 (1961), 1585, 1696 Kurland, ''The Privileges or Immunities Clause: 'Its H our Come Round at Last'?," 1972 Wash U L.Q. 405, 458 . . Kurland, ''The Religion lauses and the Burger Court," 34 th U Rev. 1 (1984), 1681 a · · L.

TABLE OF AUTHORITIES

Lahav, "Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech," 4 J.L.' & Pol. 451 (1987), 970 Lakier, "Inventing Low-Value Speech," 128 Harv. L. Rev. 2166 (2015), 1132 Lange, "The Role of the Access Doctrine in the Regulation of the Mass Media," 52 N. Car. L. Rev. 1 (1973), 1547 Lash, "Enforcing the Rights of Due Process: the Original Relationship Between t he Fourteenth Amendment and the 1966 Civil Rights Act," 106 Geo. L. J. 1389 (2018), 456 Law, "Addiction, Autonomy and Advertising," 77 Iowa L. Rev. 909 (1992), 1138 Law, "Rethinking Sex and the Constitution," 132 U. Pa. L. Rev. 955 (1984), 526, 785 Lawrence, ''The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism ," 39 Stan. L. Rev. 317 (rn87), 683 Laycock, "'Nonpreferential' Aid to Religion: A False Claim About Original Intent," 27 Wm. & Mary L. Rev. 875 (1986), 1563 Laycock, "Churches, Playgrounds, Government Dollars-And Schools?," 131 Harv. L. Rev. 133 (2017), 1703 Laycock, "Fom~al, Substantive, and Disaggregated 1 eutrality Toward Religion," 39 DePaul L. Rev. 993 (1990), 1627 Laycock, ''Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty," 118 Harv. L. Rev. 155 (2004), 1260 Laycock, ''Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy," 81 Colum. L. Rev. 1373 (1981), 1607 Lee, "University Dons and Warrior Chieftains: Two Concepts of Diversity," 72 Fordham L. Rev. 2301 (2004), 722 Lessig & Sunstein, "The President and the Administration," 94 Colum. L. Rev. 1 (1994), 413 Lessig, "Reading the Constitution in yberspace," 45 Emory L. J . 869 (1996), 1116 Leval, ''The No-Money, o-Fault Libel Suit: Keeping Sullivan in Its T

Proper Place," 101 Harv. L. Rev. 1287 (1988), 1011 Levi, "Dangerous Liaisons: Seduction and Betrayal in Confidential PressSource Relations," 43 Rutgers L. Rev. 609 (1991), 1543 Levinson, "Could Meese Be Right This Time?," 61 Tul. L. Rev. 1071 (1987), 23 Lewis, "A Public Right to Know About Public Institutions: The First Amendment as Sword," 1980 Sup. Ct.Rev. 1, 1521 Lewis, "New York Times v. Sullivan [Reconsidered]," 83 Colum. L. Rev. 602 (1983), 1011 Linde, " 'Clear and Present Danger' Reexamined: Dissonance in the Brandenburg Concerto," 22 Stan. L. Rev. 1163 (1970), 970, 976 Linde, "Due Process of Lawmaking," 55 Neb. L. Rev. 197 (1976), 646 Liu, " 'History Will Be Heard': An Appraisal of the Seattle/Louisville Decision," 2 Harv. L. & Pol'y Rev. 53 (2008), 7 44 Liu, "State Constitutions and the Protection of Individual Rights: A Reappraisal," 92 .Y.U. L. Rev. 1307 (2017), 1506 Liu, ''The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions," 100 Mich. L. Rev. 1045(2002), 725 Lund. ''The Congressional Chaplaincies," 17 Wm. & Mary Bill of Rights J. 1171 (2009), 1667 Lupu & Tuttle, "Zelman's Future: Vouchers, ectarian Providers, and the Next Round of Constitutional Battles," 78 Notre Dame L. Rev. 917 (2003), 1643 Lupu, ''The Lingering Death of Separationism," 62 Geo. Wash. L. Rev. 230 (1994), 1627 Lupu, ''Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion," 102 Harv. L. Rev. 933 (1988), 1593 Macedo, ''Constituting Civil Society: chool Vouchers, Religious onprofit Organization , and Liberal Public Values," 75 Chi.Kent L. Rev. 417 (2000), 1643 MacKinnon, "Pornography, Civil Ri gh ts, and Speech," 20 Harv. C.R. -C.L. L. Rev. 1 (19 5), 1076 Malamud, ''A Response to Professor Sander," 47 J . L gal Educ. 504 (1997), 725

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Manning, "Foreword: The Means of Constitutional Power," 128 Harv. L. Rev. 1 (2014), 97 Marshall, " 'We Know It When We See It': The Supreme Court and Establishment," 59 S. Cal. L. Rev. 495 (1986), 1681 Marshall, ''In Defense of Smith and Free Exercise Revisionism," 58 U. Chi. L. Rev. 308 (1990), 1605 Martinez, ''Inherent Executive Power: A Comparative Perspective," 115 Yale L.J. 2480 (2006), 349, 390 Matheson, "Procedure in Public Person Defamation Cases: The Impact of the First Amendment," 66 Tex. L. Rev. 215 (1987), 1012 Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," 87 Mich. L. Rev. 2320 (1989), 1045 Mayeri, "A ew E.R.A or a New Era? Amendment Advocacy and the Reconstitution of Feminism," 103 w. U. L. Rev. 1223 (2009), 34 Mayeri, "Constitutional Choices: Legal Feminism and the Historical . Dynamics of Change," 92 Cal. L. Rev. 755 (2004), 757 Mayton, "Toward a Theory of First Amendment Process: Injunctions of Speech, Subsequent Punishment, and the Costs of the Prior Restraint Doctrine," 67 Cornell L. Rev. 245 (1982), 1373 McConnell, "Coercion: The Lost Element of Establishment," 27 Wm. & Mary L. Rev. 933 (1986), 1651 McConnell, "Federalism: Evaluating the Founders' Design," 54 U. Chi. L. Rev. 1484 (1987), 108 McConnell, "Free Exercise Revisionism and the Smith Decision," 57 U. Chi. L. Rev. 1109 (1990), 1601 McConnell, "How Not to Promote Serious Deliberation About Abortion," 58 U. Chi L. Rev. 1181 (1991), 525 McConnell, "Originalism and the Desegregation Decision," 81 Va. L. Rev. 947 (1995), 665 McConnell, "Religious Freedom at a Crossroads," 59 U. Chi. L. Rev. 115 (1992), 1627 McConnell, Michael, ''The Origins and Historical Understanding of Fr Exercise of Religion," 103 Harv. L. Rev. 1409 (1990), 1601

McDonald, "Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression," 81 Notre Dame L. Rev. 1347 (2006), 1174 McDowell, " 'High Crimes and Misdemeanors': Recovering the Intentions of the Founders," 67 Geo. Wash. L. Rev. 626 (1999), 441 McGinnis, '1mpeachment: The Structural Understanding," 67 Geo. Wash. L. Rev. 650 (1999), 440 Medow, ''The First Amendment and the Secrecy State," 130 U. Pa. L. Rev. 775 (1982), 1385 Meiklejohn, "The First Amendment Is an Absolute," 1961 Sup. Ct. Rev. 245,937, 1070 Meltzer, "Overcoming Immunity: the Case of Federal Regulation of Intellectual Property," 53 Stan. L. Rev. 1331 (2001), 188 Meltzer, "State Sovereign Immunity: Five Authors in Search of a Theory," 75 Notre Dame L. Rev. 1011 (2000), 187 Memorandum from Steven Engel, Assistant Att'y Gen., Office of Legal Counsel, to Don McGahn, Counsel to the President (May 3 1, 2018), 345 Mendelson, ''The First Amendment and the Judicial Process: A Reply to Mr. Frantz," 17 Vand. L. Rev. 479 (1964), 944 Merritt, ''The Guarantee Clause and State Autonomy: Federalism for a Third Century," 88 Colum. L. Rev. 1 (1988), 108 Messe, "The Law of the Constitution," 61 Tul. L . Rev. 979 (1987), 22 Metzger, Comment, "To Tax, To Spend, To Regulate," 126 H arv. L . Rev. 83 (2012), 166, 199 Meyer, "Sex, Sin, and Women's Liberation: Against PornSuppression," 72 Tex. L. Rev. 1097 (1994), 1081 Michelman, "Liberties, Fair Values and Constitutional Method " 59 _Chi. L. Re~. 91 (1992), 942 ' . M1chel~an,. Saving Old Glory: On Constitutional Iconography," 42 ~tan. L. R~v. 1337 (1 990), l l9 5 Michelman, 'The Supreme ourt 1968 T~rm- Foreword: On ' Protectmg the Poor Through th Fourteenth Amendment" 83 H ~ - Rev. 7 (1969), 804, 839 arv. Michelman, ''The Supreme ourt 1985 Term- Foreword·• Traces ,o f

U

TABLE OF AUTHORITIES

Self-Government," 100 Harv. L. Rev. 4 (1986), 28 Mikos, "On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime," 62 Vand. L. Rev. 1421 (2009), 159 Miller, "The True Story of Carolene Products," 1988 Sup. Ct. Rev., 503 Minow, "Affordable Convergence: 'Reasonable Interpretation' and the Affordable Care Act," 126 Harv. L. Rev. (2012), 199 Minow, "Public and Private Partnerships: Accounting for the New Religion," 116 Harv. L. Rev. 1229 (2003), 1643 Moe & Howell, "The Presidential Power of Unilateral Action," 15 J .L. Econ. & Org. 132 (1999), 350 Monaghan, "First Amendment 'Due Process'", 83 Harv. L. Rev. 518 (1970), 1368 Monaghan, "Of 'Liberty' and 'Property,·" 62 Cornell L. Rev. 405 (1977), 1011 Monaghan, "Overbreadth," 1981 Sup. Ct. Rev. 1. 1349 Monaghan, "The Protective Power of the Presidency." 93 Colum. L. Rev. 1 (1993), 308 Monagha1!, "The Sovereign Immunity 'Exception, '" 110 Harv. L. Rev. 102 (] 996), 188 Monaghan, "Tbrd Party Standing," 84 Colum. L. Rev. 277 (19 4), 1349 Monaghan, "We the People[s], Original Understandmg and Constitutional Amendment," 96 Colum. L . Rev. 121 (1996), 98 Morrison, "Does the Fourteenth Amendment Incorporate the Bill of Rights? The Judicial Interpretation," 2 Stan. L. Rev. 140 (1949), 467 Nagel, "How Useful is Judicial Review in Free Speech Cases?," 69 Cornell L. Rev . 302 (1984), 1010 Nahmod, "Artistic Expression and Aesthetic Theory: The Beautiful, The Sublime and the First Amendment," 19 7 Wis. L. Rev. 221, 1070 Neisser, " barging for Fr e peech: User Fees and Insuranc in the Marketplace ofldeas," 74 Geo. L.J. 257 (1985), 1214 e uborne, "The First mendm nt and Government Regulation of apital Markets," 55 Brooklyn L. Rev . 5 (1989), 1138

Neuborne, ''The Myth of Parity," 90 Harv. L. Rev. 1105 (1977), 19 Newsome, "Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases," 109 Yale L.J. 643 (2000), 457 Nimmer, "The Meaning of Symbolic Speech Under the First Amendment," 21 UCLA L. Rev. 29 (1973), 1180 Nimmer, ''The Right to Speak from Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy," 56 Cal. L. Rev. 935(1968), 946, 1010, 1021 Note, "Boys Muscling in on Girls' Sports," 53 Ohio St. L.J. 891 (1992), 776 Note, "Standing to Assert Constitutional Jus Tertii," 88 Harv. L. Rev. 423 (1974), 1349 Note, ''The Equal Treatment of Aliens: Preemption or Equal Protection?," 31 Stan. L. Rev. 1069 (1979), 796 Note, ''Th e First Amendment Overbreadth Doctrine," 83 Harv. L. Rev. 844 (1970), 1349 Novick, "The Unrevised Holmes and Freedom of Expression," 1991 Sup. Ct. Rev. 303, 956 O'Fallon, "Marbury," 44 Stan. L. Rev. 219 (1992), 12 Oakes, ''The Doctrine of Prior Restraint Since the Pentagon Papers," 15 U. Mich. J .L. Reform 497 (1982), 1378 Olree, "James Madison and Legislative Chaplains," 102 Nw. U. L.Rev. 145(2008), 1667 Olsen, ''Statutory Rape: A Feminist Critique of Rights Analysis," 63 Tex.L.Rev. 387(1984), 780 Palmer, "The Parameters of Con titutional Reconstruction: laughter-House, Cruikshank, and the Fourteenth Amendment," 1984 U. Ill. L. Rev. 739, 457 Papandrea, "Citizen Journalism and the Reporter's Privilege," 91 Minn. L. Rev. 515 (2007), 1532 Perry, "Religious Arguments in Public Political Debate," 29 Loyola L. Rev. 1421 (1996), 1604 Per ily, "In Defense of Fo_ es Guarding the Henhou : The as for Judicial quie nc to Incumbent-Protecting Gerrymander," 116 Har . L. R 649 (2002), 24 Per ky, omment ·• · rho t:3 That lay': A ontempornry Look at

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State Advisory Opinions," 37 Conn. L. Rev. 1155 (2005), 36 Peters, Jonathan, "The 'Sovereigns of Cyberspace' and State Action: The First Amendment's Applicationor Lack Thereof- to Third-Party Platforms," 32 Berkeley Tech. L.J . 989 (2017), 862 Pfander, ''Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers," 101 Colum. L. Rev. 1515 (2001), 12 Pfeffer, ''Religion-Blind Government," 15 Stan. L. Rev. 389 (1963), 1696 Polsby, "Buckley v. Valeo: The Special ature of Political Speech," 1976 Sup. Ct. Rev. 1, 1468 Pope, "The Three-Systems Ladder of First Amendment Values: Two Rungs and a Black Hole," 11 Hast. Const. L.Q. 189 (1984), 1281 Posner & Vermeule, "Accommodating Emergencies," 56 Stan. L. Rev. 605 (2003), 390 Posner, "[The] Constitutionality of Preferential Treatment of Racial Minorities," 1974 Sup. Ct. Rev. l , 656 Posner, "Free Speech in an Economic Perspective," 20 Suffolk L. Rev. 1 (1986), 1137 Posner, "The Right to Privacy," 12 Ga. L. Rev. 393 {1978), 1021 Posner, E. & Vermeule, "Accommodating Emergencies," 56 Stan. L. Rev. 605 (2003), 350 Post & Siegel, "Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel," 110 Yale L.J. 441 (2000), 908,928 Post & Siegel, "Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act," 112 Yale L.J. 1943 (2003), 928 Post & Siegel, ''Roe Rage: Democratic Constitutionalism and Backlash," 42 Harv. C.R.-C.L. L. Rev. 373 (2007), 527 Post, "Between Governance and Management: The History and Theory of the Public Forum," 34 UCLA L. Rev. 1713 (1987), 1212 Post, "Compelled Subsidization of Speech; Johanns v. Livestock Marketing Association," 2005 Sup. Ct. Rev. 195, 1414 Post, "Participatory Democracy and Free Speech," 97 Va. L. Rev. 477 (2011), 938

Post ''Recuperating First ~endment Doctrine," 4 7 Stan. L. Rev. 1249 (1995), 1185 Post, "Subsidized Speech," 106 Yale L.J . 151 (1996), 1330 Post ''The Constitutional Status of C~mmercial Speech," 48 UCLA L. Rev. 1 (2000), 1138 Post, "The Social Foundations of Defamation Law: Reputation and the Constitution," 74 Calif. L. Rev. 691 (1986), 1011 Post, "The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law," 117 Harv. L. Rev. 4 (2003), 572, 722 Powe, ''Mass Speech and the Newer First Amendment," 1982 Sup. Ct. Rev. 243, 1472 Powe, "Or of The [Broadcast] Press," 55 Tex. L. Rev. 39 (1976), 1546 Powe, "Tornillo," 1987 Sup. Ct. Rev. 345, 1547 Prakash & Yoo, ''The Origins of J udicial Review," 70 U. Chi. L. Rev. 887 (2003), 13 Prakash, 'The Separation and Overlap of War and Military Powers," 87 Tex. L. Rev. 299 (2008), 390 Presser, ''Would George Washington Have Wanted Bill Clinton Impeached," 67 Geo. Wash. L. Rev. 666 (1999), 439 Primus, "'The Essential Characteristic': Enumerated Powers and the Bank of the United States," 117 Mich. L. Rev. 415 (2018), 77 Primus, "Equal Protection and Disparate Impact: Round Three," 117 Harv. L. Rev. 493 (2003) 691 723 ' ' Rabban, "The First Amendment in Its Forgotten Years," 90 Yale L.J. 514 (1981), 934 Rabban, "The Free Speech League, the ACL_U, and Changing Conceptions of Free Speech in American History," 45 Stan. L . Rev. 4 7 (1992), 934 Rab_ban, "The IWW Free Speech Fights and Popular Conceptions of Free Expression Before World War I,''. 80 Va. L. Rev. 1055 (1994) 934 Radm, "Evaluating Government Rea~ons for Changing Property Regimes, 55 Alb. L. Rev 687 (1992), 634 . Radin, ''The Liberal onception of Property: Cross urrents in the

TABLE OF AUTHORITIES

Jurisprudence of Takings," 88 Colum. L . Rev. 1667 (1988), 627 Rakove, "Statement on the Background and History of Impeachment," 67 Geo. Wash. L. Rev. 682 (1999), 439 Ramirez, "The Law and Macroeconomics of the New Deal at 70," 62 Md. L. Rev. 515 (2003), 499 Ramsey, "The Executive Power Over Foreign Affairs," 111 Yale L.J . 231 (2001), 321 Rapaczynski, "From Sovereignty to Process: The Jurisprudence of Federalism After Garcia," 1985 Sup. Ct.Rev.341, 108 Raskin & Bonifaz, "The Constit utional Imperative and Practical Superiority of Democratically Finan ced Elections," 94 Colum. L. Rev. 1160 (1994), 1472 Redish & Kessler, "Government Subsidies and Free Expression," 80 Minn. L. Rev 543 (1995), 1330 Redish, ''The Content Distinction in First Amendment Analysis," 34 Stan. L. Rev. 113 (1981), 1174 Redish, "The First Amendment in the Marketpl:::re· Commercial Speech and the Valur-3 of Free Expression,'' 39 Geo. Wash. L. Rev. 429 (1971), 1138 Redish, "The Proper Role of the Prior Restraint Doctrine in First Amendment Theory,·• 70 Va. L. Rev. 53 (1984), 1372, 1376 Redish, "The Value of Free Speech," 130 U. P enn. L. Rev. 591 (1982), 938, 1139 Redish, "The Warren Court, the Burger Court, and the First Amendment Overbreadth Doctrine," 78 w . U. L. Rev. 1031 (1983), 1349 Redish, "Tobacco Advertising and the First Amendment," 81 Iowa L. Rev. 589 (1996), 1155 Reese, "Or to the People: Popular Sovereignty and the Power to Choose a Government," 39 Cardozo L. Rev. 2051 (2018), 99 Regan, "The Supreme Court and State Protectionism: Making ense of the Dormant Commerce Clause," 84 Mich. L. Rev. 1091 (19 6), 235, 252, 260 Reich, "The ew Prop rty," 73 Yale L.J. (1964), 604

Restatement (Third) of Foreign Relations Law of the United States § 203, Comment a, 309 Restatement (Third) of Foreign Relations Law of the United States § 302, Comment d, 340 Rhode, "Moral Character as a Professional Credential," 94 Yale L.J. 491 (1985), 1439 Ribstein, "Corporate Political Speech," 49 Wash . & Lee L. Rev. 109 (1992), 1502 Richards, "Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment," 123 U. Pa. L. Rev. 45 (1 974), 939, 1071 Riesman, "Democracy and Defamation: Control of Group Libel," 42 Colum. L. Rev. 727 (1942), 1005 Roberts, "Rust v. Sullivan and the Control of Knowledge," 61 Geo. Wash. L. Rev. 587 (1993), 1330 Rogat, "Mr. Justice Holmes, Some Modern Views-The Judge as Spectator," 31 U. Chi. L. Rev. 213 (1964), 969 Rohr, "First Amendment Fora Revisited: How Many Categories Are There?," 41 Nova L. Rev. 221 (2017), 1256 Rosenkranz, "Executing the Treaty Power," 118 Harv. L . Rev. 1867 (2005), 338 Rosenthal, "Conditional Federal Spending and the Constitution," 39 Stan.L. Rev. 1103(1987), 207 Ross, ''The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks," 38 Wake Forest L. Rev. 733 (2003), 16 Rossi, "Institutional Design and the Lingering Legacy of Antifederalist Separation of Powers Ideals in the tates," 52 Vand. L. Rev. (1999), 392 Rostow, ''The Japanese American Cases-A Disaster," 54 Yale L.J 4 9 (1945), 679 Rubenfeld, "The Right to Privacy," 102 Harv. L. Rev. 737 (19 9), 519 Rubenstein, ''The Myth of uperiority," 16 Con t. Comment 599 (1999), 19, 575 Rubin & Feeley, "Federah 'm: ome ote on a ational uro 1 ," 41 U LAL. Rev. 903 (1994). 10 ander, "E. perimenting with la 'S Ba.ed ffirmativ , tton,"-17J. L gal Educ. 472 (1997). 726

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argentich, ''The Limits of the Parliamentary Critique of the Separation of Powers," 34 Wm. & Mary L. Rev. 679 (1993), 297 Scalia, ''The Doctrine of Standing as an Essential Element in the Separation of Powers," 17 Suffolk U. L. Rev. 881 (1983), 55 Scalia, ''The Rule of Law as a Law of Rules," 56 U. Chi. L. Rev. 1175 (1989), 1605 Scanlon, "A Theory of Freedom of Expression," 1 Phil. & Pub. Aff. 204 (1972), 939 Scanlon, "Freedom of Expression and Categories of Expression," 40 U. Pitt. L. Rev. 519 (1979), 939, 945, 1071, 1139 Schauer, " 'Private' Speech and the 'Private' Forum," 1979 Sup. Ct. Rev. 217, 1303 Schauer, "Categories and the First Amendment," 34 Vand. L. Rev. 265 (1981), 1075 Schauer, "Codifying the First Amendment: ew York v. Ferber," 1982 Sup. Ct. Rev. 285, 945, 1098 Schauer, "Intentions, Conventions, and the First Amendment: The Case of Cross-Burning," 2003 Sup. Ct.Rev. 197, 1170 Schauer, "Slippery Slopes," 99 Harv. L. Rev. 361 (1985), 1539 Schauer, "Speech and 'Speech'Obscenity and 'Obscenity': An Exercise in the Interpretation of Constitutional Language," 67 Geo. L.J. 899 (1979), 1070 Schauer, "The Boundaries of the First Amendment," 117 Harv. L. Rev. 1765 (2004), 937 Schauer, "The Political Incidence of the Free Speech Principle," 64 U. Colo. L. Rev. 935 (1993), 942 Schauer, "The Second-Best First Amendment," 31 Wm. & Mary L. Rev. 1 (1989), 940 Schauer, "Uncoupling Free Speech," 92 Colum. L. Rev. 1321 (1992), 998 Schor, "Mapping Comparative Judicial Review," 7 Wash. U. Global Stud. L. Rev. 257 (2008), 29 Scordato, "Distinction Without a Difference: A Reappraisal of the Doctrine of Prior Restraint," 68 .C. L. Rev. 1 (1989), 1373 Sherman, "love Speech: The Social Utili y of Pornography," 4 7 Stan. L.Rev.661(1995), 1081 Sherry, "The Founders' Unwritten Constitution," 54 U. Chi. L. Rev. 1127 (1987), 13

Shiffrin, "Symposium: Commercial Speech: Past, Present & Future: Compelled Association, Morality, and Market Dynamics," 41 Loy. L.A. L. Rev. 317 (2007), 1413 Shiffrin "The First Amendment and Econ~mic Regulation: Away From a General Theory of the First Amendment," 78 Nw. U. L. Rev. 1212(1983), 940, 1137 Shiffrin, "What Is Really Wrong With Compelled Association?," 99 Nw. U . L . Rev. 839 (2005), 1451 Siegel, "Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown," 117 Harv. L. Rev. 1470 (2004), 675 Siegel, ''Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection," 44 Stan. L. Rev. 261 (1992), 526, 527 Smith, "Radically Subversive Speech and the Authority of Law," 94 Mich. L. Rev. 348 (1995), 978 Smith, "Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the 'No Endorsement' Test," 86 Mich. L. Rev. 266 (1987), 1681 Smolla, "[The] Rejuvenation of the American Law of Libel," 132 U. Pa. L. Rev. 1 (1984), 1011 Snow, Ned, "Denying Trademark for Scandalous Speech," 51 U .C. Davis L. Rev. 2331 (2018), 1347 Sofaer, "The Power over War," 50 U. Mia~ L. Rev. 33 (1995), 342 Sofaer, 'The Presidency, War and Foreign Affairs: Practice Under t he Framers," 40 Law & Contemp. Probs. 12 (1976), 343 Sofaer, ''The War Power s Resolution and Kosovo," 34 Loy. L. Rev. 71 (2000), 343 Sorauf, "Politics, Experience and the First Amendment: The Ca~e of American Campaign Finance " 94 ~olu~. L. Rev. 1~48 ~1994), 1'4 72 Spi~zer, '.'fhe Constitut10nality of L1censmg Broadcasters," 64 N.Y.U. L Rev-..99~ (1989), 1544 Starger, Exile on Main Street· Competing Traditions and Due Process Dissent," 95 Marq L Rev 1253 (2012), 482 . . . Stephanopoulos G d .& McGhee , "P ar·t·1san erryman ermg and the Efficie ncy Gap," 82 U. Chi. L. Rev 831 (2015), 825 .

TABLE OF AUTHORITIES

Stewart, "Or of the Press," 26 Hast. L .J . 631 (1975), 1513 Stewart, "The R eformation of American Administrative Law," 88 Harv. L. Rev. 1667 (1975), 392 Stone, "Anti-Pornography Legislation As Viewpoint Discrimination," 9 Harv. J . L. & Pub.Pol'y. 701 (1986) 1080 ' Stone, "Conten t Regulation and the First Amendment," 25 Wm. & Mary L . Rev. 189 (1983), 1174 Stone, "Content-Neutral Restrictions," 54 U . Chi. L. Rev. 46 (1987), 1182, 1219 Stone, "Flag Burning and the Constitution," 75 Iowa L. Rev. 111 (1989), 1193 Stone, "Fora Americana: Speech in Public Places," 1974 Sup. Ct . Rev. 233, 1212, 1247 Stone, "In Opposition to th e School Prayer Am endment," 50 U. Ch i. L. Rev. 823 (1983), 1647 Stone, "Judge Learned Hand and th e Espionage Act of 1917: a Mystery Unraveled," 70 U . Chi. L. Rev. 335 (2003), 959 Stone, "The Origins of the 'Bad T en dency· Test: Free Speech in W artime," 2002 Sup. Ct. Rev. 411, 946 Strauss, "Abortion, Toleration, and M oral Uncertainty," 1993 Sup. Ct. R ev. 1,539 Strauss, ''Corruption, Equality, and Campaign Frnance," 94 Colum. L. R ev. 1369 (1994), 1471 Stra u ss, "Formal and Functional Approaches to Separation of Powers Questions-A Foolish Inconsistency?," 72 Cornell L. Rev. 488 (1987), 307 Stra u ss, "Persuasion, Autonomy, and F reed om of Expression," 91 Colum. L . R ev. 334 (1991), 939, 1138 Stra u ss, "The Place of Agencies in Government: Separation of Powers a nd t h e Fourth Branch," 84 Colum. L. Rev. 573 (1984), 413 Stra u ss, "Why Was Lochner Wrong?," 70 U. Chi. L. Rev. 373 (2003), 499 Strossen "Regulatin g Racist Speech on Ca~pus: A Modest Proposal'?," 1990 Duke L.J. 484, 1045 S trossen "Regulating Wor kplace S exua i H arassmen t and Upholding th e First Amendmen t-Avoiding a ollis ion ," 37 Vill. L. Rev. 757 . (1992), 1048 S ulliva n & Post, "Symposium: omm er cia l S peech : Past, Presen t

& Future: It's What's For Lunch : Nectarines, Mushrooms, And Beef- The First Amendment And Compelled Commercial Speech," 41 Loy. L.A. L. Rev. 359 (2007), 1413 Sullivan, "After Affirmative Action ," 59 Ohio St. L.J. 1039 (1998), 726 Sullivan, "Against Campaign Finance Reform ," 1998 U tah L. Rev. 31 1 (1998), 1470 Sullivan, "Cheap Spirits, Cigarettes and Free Speech," 1996 Sup. Ct. Rev. 123, 1153 Sullivan, "Constitutionalizing Women's Equality," 90 Cal. L. Rev. 735 (2002), 756 Sullivan, "Dueling Sovereignties: U .S . Term Limits, Inc. v. Thornton ," 109 Harv. L. Rev. 78 (1995), 106 Sulliva n, "Fr ee Speech and Unfree Markets," 42 U CLA L. R ev. 949 (1 995), 942 Sullivan, "From States' Rights Blues to Blue States' Righ ts: Federa lism After the Rehnquist Court," 75 For dham L. Rev. 799 (2006), 158 Sullivan, "Political Money and Freedom of Speech," 30 U.C. Davis L. Rev. 663 (1997), 1468 Sullivan, "Post-Liberal J udging: Th e Roles of Categorization a nd Balancing," 63 U. Colo. L. Rev. 293 (1992), 944 Sullivan, ''Religion and Liberal Democracy," 59 U. Chi. L. Rev. 195 (1992), 1604, 1627 Sullivan, ''The ew Religion and t h e Constitution," 116 Harv. L. Rev. 1397 (2003), 1643 Sullivan, "The Supreme Court-1985 Term-Comment: Sins of Discrimination," 100 Harv. L. Rev. 78 (1986), 709 Sullivan, ''The Supreme Court-1991 Term-Foreword: Th e J ustices of Rules and Standards," 106 Harv. L. Rev. 22 (1992), 944 Sullivan, ''The Supreme Court-2009 Term-Comment: Two Concepts of Freedom of Speech," 124 Harv. L. R ev. 143 (2010), 935, 1502 u llivan, "Unconstitutional Conditions," 102 Harv. L. Rev. 1413(1989),211,636, 1302, 1323 unstein, "Bad Incentives and Bad Institutions," 6 Geo. L.J. 2267 (199 ), 419 unstein, "Constitutionalism After th e ew D al." 101 Har . L. Rev. 421 (19 7), 307

Iv

_!:lv~i_ _ _ _JT~AB~LE!.QOfF!:_A~UT!'.!!!HQO!RI!'.!T~IES~--------------------

Sunstein, "Free Speech Now," 59 U. Chi. L. Rev. 255 (1992), 937, 1471 Sunstein, "Government Control of Information," 74 Calif. L. Rev. 889 (1986), 1385 Sunstein, "Impeachment and Stability," 67 Geo. Wash. L. Rev. 699 {1999), 440 Sunstein, ''Interest Groups in American Public Law," 38 Stan. L. Rev. 29 (1985), 656 Sunstein, "Liberty After Lawrence," 65 Ohio St. L.J . 1059 (2004), 573 Sunstein, ''Lochner's Legacy," 87 Colum. L. Rev. 873 (1987), 496 Sunstein, "Naked Preferences and the Constitution," 84 Colum. L. Rev. 1689 (1984), 496, 655 Sunstein, "Pornography and the First Amendment," 1986 Duke L.J. 589 (1986), 1080 Sunstein, "Public Values, Private Interests, and the Equal Protection Clause," 1982 Sup. Ct. Rev. 127, 655 Sunstein, "Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection," 55 U. Chi. L. Rev. 1161 (1988), 572 Sunstein, "What's Standing After Lujan? Of Citizen Suits, Injuries, and Article III," 91 Mich. L. Rev. 163 (1992), 4 7 Sunstein, "Words, Conduct, Caste," 60 U. Chi L. Rev. 795 (1993), 1070 Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 84-132 (2018), 510 Swisher, Roger B. Taney 504-05 (1935), 450 Symposium, "National Security and the First Amendment," 26 Wm. & Mary L. Rev. 715 (1985), 1385 Symposium, "The Independence of Independent Agencies," 1988 Duke L.J. 215, 413 Tanenhaus, "Group Libel," 35 Cornell L.Q. 261 (1950), 1005 Teitel, "A Critique of Religion as Politics in the Public Sphere," 78 Cornell L. Rev. 747 (1993), 1604 Text of a Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (April 8,

2017), 344 Thay r, "The Origin and Scope of the American Doctrine of Cons itutional Law," 7 Harv. L.

Rev. 129 (1 93), 27

Thomas "The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment," 12 Harv. J.L. & Pub. Pol'y 63 (1989), 458 Treanor, "Judicial Review Before Marbury," 58 Stan. L. Rev. 455 (2005), 12 Treanor, "The Case of the Prisoners and the Origins of Judicial Review," 143 U. Pa. L . Rev. 491 (1994), 13 Tribe & Dorf, "Levels of Generality in the Definition of Rights," 57 U . Chi. L. Rev. 1057 (1990), 553 Tribe, "A Constitution We Are Amending: In Defense of a Restrained Judicial Role," 97 Harv. L. Rev. 433 (1983), 69 Tribe, ''Disentangling Symmetries: Speech, Association, Paren thood," 28 Pepp. L. Rev. 641 (2001), 1394 Tribe, "Foreword: Toward a Model of Roles in the Due Process of We and Law," 87 Harv. L. Rev. 1 (1973), 526 Tribe, "Jurisdictional Gerrymandering: Zoning Disfavored Rights Out of the Federal Courts," 16 Harv. C.R.C.L. L. Rev. 129 (1981), 32 Tribe, "Lawrence v. Texas: The 'Fundamental Right' that Dare Not Speak Its Name," 117 Harv. L. Rev. 1893 (2004), 571, 573 Tribe, "Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future-or Reveal the Structure of th e Present?," 113 Harv. L. Rev. 110 (1999), 463 Tribe, ''Taking Text and Structure Seriously," 108 Harv. L. Rev. 1221 (1995), 321 Tribe, ''The Legislative Veto Decision: A Law by Any Other Name?," 21 ~81;· J. on Legis. 1 (1984), 400 Trib~, 'The Mystery of Motive, Pnvate and [Public]," 1993 Sup. Ct. Rev. 1, 1048 Turley, "Congress as Grand Jury· The Role of the House of · Representatives in the Imp~achm,~nt of an American President, 67 Geo. w ash L Rev 735 (1999), 440 . . . Turl~y, "Reflections on Murder, Misdemeanors, and Madison ,, 28 Hofstra L. Rev. 439 (1999) 440 Tushnet, ."Defending Kor e m~tsu ?• Reflections on Civil Liberties i~

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TABLE OF AUTHORITIES

Wartime," 2003 Wis. L. Rev. 273 (2003), 350 Tushnet, "Permissible Gun Regula tions Aft er Heller: Some Speculations About Method and Outcomes," 56 UCLA L. Rev. 1425 (2009), 475 Tushnet, "The Constitu tion of Religion," 18 Conn. L. Rev. 701 (1986), 1681 Tushne t, Mark, "The Issue of State Action/Horizontal Effect in Compara tive Constitu tional Law," 1 Int'l J . Const. L. 79 (2003), 877 Van Alstyne, "A Critical Guide to M a rbury v. Madison," 1969 Duke L .J . 1, 12 Van Alstyne, "A Graphic Review of th e Free Speech Clause," 70 Calif. L . Rev. 107 (1982), 976 Van Alstyne, "The Demise of t he Right-Privilege Distinction in Constitutional Law," 81 Harv. L. R ev. 1439 (1968), 1302, 1322 Va n Alstyne, "The Mobius Strip of th e First Amendment: Perspectives on Red Lion," 29 S.C. L. Rev. 539 (1978), 1546 Va n Alstyne, ''The Role of Congress in Deterrninin6 Incidental Powers of the Presidfmt and of the Federal Courts: A Comment on the Horizontal Effect of The Sweeping Clause," 40 Lav; & Contemp. Probs. 102 (197G). 308 Van Alstyne, "Trends in the Supreme Court: Mr. Jeffer.,;on·s Crumbling Wall-A Comment on Lynch v. Donnelly," 1984 Duke L .J. 770, 1562, 1681 Varat, "State 'Citizenship' and Interstate Equality," 48 U . Chi. L. Rev. 487 (1981), 252 Velvel, "Freedom of Speech and the Draft Card Burning Cases," 16 U. Kan. L. Rev. 149 (1968), 1180 Volokh, "Crime-Facilitating Speech," 57 Stan. L. Rev. 1095 (2005). 983 Volokh, "Freedom of peech a nd Workplace Harassment," 39 UCLA L . Rev . 1791 (1992), 1048 Volokh, "Imple menting the Right to Keep and Bear Arms for elfDefense: An Analytical Framework and a Research Age nda ," 56 UCLA L. Rev . 1443 (2009), 475 Volokh , "Symbolic Exprc ion and t he Original Meaning of the First Amendment," 97 G o. L.J. 1057 (2009), 1176

Waldron, "Dignity and Defamation: The Visibility of Hate," 123 Harv. L.Rev. 1596(2010), 1005 Warren & Brandeis, "The Right to Privacy," 4 Harv. L. Rev. 193, 517, 1020 Wechsler , "Toward Neutral Principles of Constitutional Law," 73 Harv. L. Rev. 1 (1959), 666 Wechsler, Herbert, "The Political Safeguards of Federalism- The Role of the States in th e Composition and Selection of the National Government," 54 Colum. L. Rev. 543 (1954), 110 Weinberg, "Broadcasting and Speech," 81 Calif. L. Rev. 1101 (1993), 1544 Weinberg, "Our Marbury," 89 Va. L. Rev. 1235 (2003), 16 Weinrib, The Taming of Free Speech: America's Civil Liberties Compromise (2016), 935 Weinstein, "A Constitutional Roadmap to the Regulation of Campus Hate Speech ," 38 Wayne L. Rev. 163 (1991), 1045 Weinstein, "Democracy, Sex and the First Amendmen t," 31 NYU Rev. L . & Soc. Change 865 (2007), 1071 Weinstein, "Participatory Democracy as the Central Value of Free Speech Doctrine," 97 Va. L. Rev. 491 (2011), 938 Wellington, "On Freedom of Expression," 88 Yale L.J . 1105 (1 979), 936 Wells & Hellerstein, "The Governmental-Proprietar y Distinction in Constitu tional Law," 66 Va. L. Rev. 1073 (1980), 252, 1252 West, "Tom Paine's Con stitu tion ," 89 Va . L. Rev. 1413 (2003), 24 White, "Justice Holmes a nd the Modernization of Free Speech Jurisprudence: The Huma n Dimension," 80 Calif. L. Rev. 391 (1992), 956 White, ''The Constitu tion al J ourney of Marbury v. Madison," 89 Va. L. Rev. 1463 (2003), 28 Wilkinson, ''The Seattle and Louisville chool Ca e : There i o Other Way,'' 121 Harv. L. Rev. 15 (2007), 744 William & William , "Volitionali m and Religiou Liberty," 76 orn 11 L. Rev. 769 (1991). 1593 William , "Gibbons," 79 r . . U. L. R V. 139 (2004), 22

~lv~i~ii~_ __:T~AB~L~E~O~F~A~UT![!!H~O~R~I:!T!_!IE~S~--------------------Williams, "Taking Care of Ourselves: State Citizenship, the Market, and the tate," 69 Ohio St. L.J. 469 (2008), 253 Williams, ''The Equality Crisis: Some Reflections on Culture, Courts and Feminism," 7 Women's Rts. L. Rep. 175 (1982), 780 Williams, ''The Foundations of the American Common Market," 84 otre Dame L. Rev. 409 (2008), 224 Winkler, "Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts," 59 Vand. L. Rev. 793 (2006), 710 Winter, "Poverty, Economic Equality, and the Equal Protection Clause," 1972 Sup. Ct. Rev. 41, 804 Wright, ''Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?," 82 Colum. L. Rev. 609 (1982), 1471 Wright, "Politics and the Constitution: Is Money Speech?," 85 Yale L.J. 1001 (1976), 1471 Yodof, "Library Book Selection and the Public Schools: The Quest for

the Archimedean Point," 59 Ind. L.J. 527 (1984), 1294 Yoo, "Laws as Treaties?: The Constitutionality of CongressionalExecutive Agreements," 99 Mich. L. Rev. 757 (2001), 321 Yoshino, "A New Birth of Freedom? Obergefell v. Hodges," 129 Harv. L. Rev. 147 (2015), 591 Young, "Just Blowing Smoke?," 2005 Sup.Ct.Rev. 1, 158 Zimmerman, "Requiem for a Heavyweight: a Farewell to Warren and Brandeis's Privacy Tort," 68 Cornell L. Rev. 291 (1983), 1021

THE CONSTITUTION OF THE UNITED STATES OF AMERICA We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the comm on defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. SECTION 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and th e Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to th e Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of fre e Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumera tion shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, D elaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. SECTION 3. The enate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for u Year ; and each Senator shall have one Vote. Immediately after they shall be assembled in on quence of th fir t El ction, they shall be divided as equally as may be into three la . The Seats of the Senators of the first Class shall be vacated at the E. piration of the second Year, of the second Class at the Expiration of the fourth ear, and of th third Class at the Expiration of the sixth Year, o that on third m be chosen every second Year; and if Vacancies happen b R ~ignation, or lix

---------------------~otherwise, during the Recess of the Legislature of any State, the ~xecutive thereof may make temporary Appointments until the next Meetmg of the Legislature, which shall then fill such Vacancies. o Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall· chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgme>J.t and Punishment, according to Law. SECTIO 4. The Times, Places and Manner of holding Electi::m s for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. SECTION 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas.and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. either House, during the Session of Congress, shall without t h e Consent of the other, adjourn for more than three days, no; to any other Place than that in which the two Houses shall be sitting. ECTION 6. T~e Se~ators and Repr~sentatives shall receive a Compensation for their Services, to be ascertamed by Law and paid O t of the Treasury of the United States. They shall in all Cases,' except Tre : son,

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. SECTION 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; Ifhe approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sunday excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. SECTION 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the everal States, and with the Indian Tribes; To establish an uniform Rule of aturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign oin, nd fo the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the ecuritie and current Coin of the United States; To establish Post Offices and post Roads;

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To promote the Progress of Science and useful A.J:ts, b~ securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a avy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other nf'edful Buildings;-And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. SECTION 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. o Bill of Attainder or ex post facto Law shall be passed. o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. 0 Tax or Duty shall be laid on Articles exported from any State. 0 Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to or from, one State, be obliged to enter, clear or pay Duties in another. ' 0 Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of th

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State. SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE II. SECTION 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as fol:iows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the enate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole umber of Electors appointed; and if there be more than one who have such Majority, and have an equal umber of Vote , then the House of Representatives shall immediately ch use by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by tates, the Representation from each State having one Vote; a quorum for this Purpose hall consist of a Member or Members from two thirds of the tates, and a Majorit , of 11 the States sh all be necessary to a Choice. In every a e, after the hmce of the President, the Person having the greatest umber of otes of th

Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of _the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-''! do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the bPst of my Ability, preserve, protect and defend the Constitution of the United States." SECTION 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may requ ire the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and h e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of. the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to~ up all V~ca~cies that may happen during he Recess of the Senate, by grantmg Comm1ss10ns which shall expire a the End of their next Session. SECTIO 3. He shall fro~ time to time give to the Congress Information of the State of the Uruon, and recommend to their Consideration such Measures as ~e shall judge necessary and e~pedient; h e may, on extraordinary Occasions, convene both Houses, or either of them, and in

THE CONSTITUTION OF THE UNITED STATES OF .AMERICA

Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Minister s; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. SECTION 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ARTICLE III. SECTION 1. The judicial Power of the United States, sh all be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. SECTION 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. · In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall h ave been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. SECTION 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. ARTICLE IV . SECTION 1. Full Faith and Credit shall be given in each tate to the public Acts, Records, and judicial Proceedings of every other tate. And the Congress may by general Laws prescribe the Manner in which uch ct , R cords and Proceedings shall be proved, and the Effect thereof. SECTION 2. The Citizens of each tate shall be entitled to all Privil ges and Immunities of Citizens in the several tates.

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A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice and be found in another State, shall on De mand of the executive Authority 'or the State from which he fled, be deliver ed up, to be removed to the State having Jurisdiction of the Crime. o Person held to Service or Labour in one State, under th e Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labou r may be due. SECTIO 3. ew States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the J u risdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legisla tures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. SECTIO 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. ARTICLEV. The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. ARTICLE VI. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the supreme Law of th~ Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before 1:1entioned, and the Members of the several State Legislatures, and all executive and judicial Officers both of the United States and _of the s~ve~al States, sh~ll_be bound by O~th or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under th United States.

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THE CONSTITUTION OF THE UNITED STATES OF AMERICA

ARTICLE VII. The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

*** ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION. AMENDMENT I [1791) . Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. AMENDMENT II [1791). A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. AMENDMENT III [1791). No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. AMENDMENT IV [1791). The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. AMENDMENT V [1791). No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand J ury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. AME DME T VI [1791). In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previou ly ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence. AMENDMENT VII [1791). In Suits at common law, where the value in controvers hall e ceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried

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b a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. AMENDMENT VIII [1791). Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. AMENDME TIX [1791). The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. AMENDMENT X [1791). The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. AMENDMENT XI [1798). The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. AMENDMENT XII [1804). The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all per sons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;- The person having the gr eatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person h ave such majority, then from the persons having the highest numbers not exceeding three on the list o~ those_voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-tru.r:ds of the_states, and a majority of all th e states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right _of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitution al disability of the President-The person ~aving _the greatest number of votes as Vice-President, shall be the V1ce-~res1dent, 1~ such number be a majority of the whole number of Electors appointed, and if no person have a majority then from th~ two highest numbers on the list, the Senate shall ch oose th ~ Vice-President; a quorum for the purp?s~ shall consist of two -thirds of th e whole number of Senators, and a maJont_y o~ the whole number sh a ll be ary to a choice. But no person constitutionally ineligible to th ffi iden shall be eligible to that of Vice-President of the United S t aot ~~e

THE CONSTITUTION OF THE UNITED STATES OF .AMERICA

AMENDMENT XIII [1865) . SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. SECTION 2. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XIV [1868). SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be red1.J.c,~d in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of twothirds of each House, remove such disability. SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United tates nor any tate shall assume or pay any debt or obligation incurred in aid of in urrection or rebellion against the United States, or any claim for the lo s or emancipation of any slave; but all such debts, obligations and claim shall be held illegal and void. SECTIO 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. AME DME T XV [1 70). SE TIO 1. The right of citizens of the United tate to vote h 11 not b d ni d or abridged by the United tate or by any tate on a ount of rac , color, or previous condition of ervitude. SE TIO 2. The ongress sh all h av pow r to enforc thi rti le by appropriate legislation.

AMENDMENT XVI [1913]. The Congress shall have power to lay and collect taxes on incomes, frorn whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. AMENDMENT XVII [1913]. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any enator chosen before it becomes valid as part of the Constitution. AMENDMENT XVIII [1919]. ECTIO 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage puqJoses is hereby prohibited. SECTION 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. ECTION 3. This article shall be inoperative unless it shall h ave been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. AMENDMENT XIX [1920]. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XX [1933). SECTION 1. The terms of the President and Vice President shall e nd at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which s uch terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. SECTION 2. The Con~ess shall assemble at least once in every year, and such meeting shall begm at noon on the 3d day of January, unless they shall by law appoint a different day. SECTION 3. If, at the time fixed for _the beginning of the t rm of th e Pre ident, the President el~ct shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the t' fixed for the beginning ~f his ter;°'l, or if the President elect shall have fa~~~ to qualify, then the Vice President elect shall act as President until a

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. SECTION 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. SECTION 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. SECTION 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of threefourths of the several States within seven years from the date of its submission. AMENDMENT XXI [1933]. SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. SECTION 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. SECTION 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the subnnssion hereof to the States by the Congress. AMENDMENT XXII [1951]. SECTlON l. No person shall be elected to the office of the President more than t\-vice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from h olding the office of President or acting as President during the remainder of such term. SECTION 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legi latures of threefourths of the several States within seven years from the date of it submission to the States by the Congress. AME DME T XXIII [1961]. SECTIO 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may dir ct: h l A number of electors of President and Vice Pre ident equ 1 to th number of Senators and Representatives in ongTe to whi h the Di , trict would be entitled if it were a tate, but in no event more than th l ast populous State; they shall be in addition to tho e appointed b th tat ,

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but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. SECTION 2. The Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XXIV [1964]. SECTION 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. SECTIO 2. The Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XXV [1967]. SECTIO 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. SECTIO 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. SECTIO 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. SECTION 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tern pore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress ~hall d~cide t~e issue, assembling within forty-eight hours for that purpose if not m session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote ?f both _Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise the Pr ident shall resume the powers and duties of his office. '

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

AMENDMENT XXVI [1971] . SECTION 1. The right of citizens of the United States, who are eighteen years of age or older , to vote shall not be denied or abridged by the United States or by any State on account of age. SECTION 2. The Congress sh all have power to enforce this article by appropriate legislation. AMENDMENT XXVII [1992]. No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

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UNIVERSITY CASEBOOK SERIES ®

CONSTITUTIONAL

LAW TWENTIETH EDITION

CHAPTER 1

THE SUPREME COURT'S

AUTHORITY AND ROLE It is traditional to begin the examination of American constit utional law with opinions from the Supreme Court presided over by Chief Justice John M arshall early in the nineteenth century. Attention to Marshall Court cases is more than a ritualistic bow to historical landmarks; key cases of this early period remain important today. In particular, Marbury v. Madison represents the Court's first and still most elaborate justification of its power of judicial review, and Martin v. Hunter's Lessee solidified federal su premacy over the states in the interpretation of federal law a n d the Constitution. Although these and other Marshall Court decisions hold a sacrosanct position in the American legal canon today, it is important to remember that the outcome of each was far from inevitable. Today, we may take for granted that the Supreme Court's authority to determine the Constitution's meaning is fin al and exclusive of all other actors. As you read this chapter, consider the various steps in the development of this understanding, and the turning points that might have led to a different distribution of power. The purpose of the materials that follow is to develop this history and to explore the nature and scope of the Supreme Court's authority. Section 1 discusses Marbury v. Madison, its antecedents and its meaning. Section 2 examines Supreme Court review of state court judgments. Section 3 asks whether the Court's interpretive authority is exclusive or shared. And Section 4 sets forth the limits on constitutional adjudication adopted by the Court.

SECTION 1. THE POWER OF JUDICIAL REVIEW Chief Justice Marshall's opinion in Marbury v. Madison represents the Court's foundational assertion of the power of judicial review. However, judicial review did not arise suddenly in 1803. Rather, Marbury reflected a variety of earlier practices and justifications. The interpretation of the case and its importance in its original historical context remain subject to debate. On one view, the decision is simply an incidental byproduct of the ordinary judicial function in deciding lawsuits: to look to the governing law, to consider the Constitution as one relevant source of law, and, in cases of conflicting legal statements. to give priority to the Constitution and to refuse enforcement of any contravening legal norm . On another view, the deci ion reads the Constitution as endowing the Court with the power to police the other branches, acting as the central guardian of constitutional principle and the special enforcer of constitutional norms. Regardless of its origin, the case stands today at the for front of the American constitutional canon, and many people around the world consid r judicial review essential to the healthy functioning of democr cy. Is Marbury's sanctified status justified? Does its rea oning grow logicall out 1

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CHAPTER 1. THE SUPREME COURT'S AUTHORITY AND ROLE

of the structure of constitutional democracy? What power, precisely, does the Court claim for itself?

Marbury v. Madison 1 Cranch (5 U.S.) 137, 2 L. Ed. 60 (1 03).

[Before ceding power to the incoming Jefferson administration in March 1 01, the outgoing Federalist administration of President John Adams made a rash of last-minute judicial appointments. William Marbury was one of those named a justice of the peace for the District of Columbia. Although he had received the nomination of the President and the advice and consent of the enate, and although his commission had been signed by the President and sealed by outgoing Secretary of State John Marshall, his commission like that of several others, was not delivered before the end of Adams's term'. The Jefferson Administration chose to disregard the undelivered comm1ss1ons. Marbury and some disappointed colleagues decided to go directly to the Supreme Court to seek a writ of mandamus to compel Jefferson's Secretary of State, James Madison, to deliver their commissions. Their motion was supported by affidavits including one by John Marshall's brother , J ames, attesting to the circumstances under which the commissions had been signed and sealed but not timely delivered. Because the new Republican government cancelled two Supreme Court sittings, the Court did not announce a decision on this 1801 request until February 1803.] ■ The opinion of the Court was delivered by CHIEF JUSTICE [MARSHALL]: At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the district of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy of this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the principles on which the opinion to be given by the court is [founded]. In the order in which the court has viewed this subject, the following questions have been considered and decided: 1st. Has the applicant a right to the commission he demands? 2d. Ifhe has a right, and that right has been violated, do the laws of this country afford him a remedy? 3d. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is- 1st. Has the applicant a right to the commission he demands? [It is] decidedly the opinion of the co~rt, that ~hen a commission has b en signed by the president, the appointment 1s mad ; and that the

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SECTION 1. THE POWER OF JUDICIAL REVIEW

commission is complete, when the seal of the United States has been affixed to it by the [secretary of state]. [To] withhold [Marbury's] commission, th erefore, is an act deemed by th e court n ot warranted by law, but violative of a vested legal right. This brings us to the second inquiry; which is: If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first dl).ties of government is to afford that protection. [The] governmen t of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from [legal redress]. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy. That there may be such cases is not to be questioned; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be [admitted]. It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that [act]. By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders. In such cases, the_ir acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of oth r . The conclusion from this reasoning is, that , her the head of departments are the political or confidential agent of the e. uti e, merely to execute the will of the President, or rath r to act in ca in whi h the

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THE SUPREME COURT'S AUTHORITY AND ROLE

executive possesses a constitutional or legal discretion, no~hing can be more perfectly clear than that their acts are only politically ~xammable. But where a specific duty is assigned by law, and individual rights depe~d-upon the performance of that duty, it seems equally clear, that the m~vidual who considers himself injured, has a right to resort to the laws of his country for a [remedy]. It is, then, the opinion of the Court [that Marbury has a] right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy. It remains to be inquired whether [he] is entitled to the remedy for which he applies. This depends on-1st. The nature of the writ applied for; and 2d. The power of this court. 1st. The nature of the writ. [This] writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, ''to do a particular thing therein specified, which appertains to his office and duty and which the court has previously determined, or at least supposes, to be consonant to right and justice." Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. 1st. With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigatio1:1 of,the _acts of one of th~se high o_fficers ~ecufo~rly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful, that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not h ave been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to enquire how the executive, or executive officers, perform duties in which they hav~ a _discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court. But, if this be not such a question; if so far from being an intrusion in to the secrets of the cabinet, it respects a paper, which, according to law is upon record, and to a copy of wh~ch th~ law giv_es a right, on the payme~t of ten cents; if it be no inte~meddlin~ with a subJect, over w~ch the executive can be considered as haVlllg ~xerc1Sed any co_n~rol; what 1s there in the exalted station of the officer, which shall bar_a c1t1zen fro~ asserting, in a court of or shall forbid a court to hsten to the claim. t0 J•ustice' his legal rights, dir · th ~ f d ' or is u a mandamus, ectmg e per.1ormance o a uty, not depending on

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SECTION 1. THE POWER OF JUDICIAL REVIEW

executive discretion, but on particular acts of congress and the general principles of law? [Where the head of a department] is directed by law to do a certain act affecting the absolute rights of individuals, [it] is not perceived on what ground the courts of the country are further excused from the duty of giving [judgment] . This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired, Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." 1 The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign. The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction." It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the Supreme Court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. The full text of Section 13 of the Judiciary Act of 1789, 1 Stat. 73, reads: "And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state i a party. except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such juri diction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or dome tic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public mini ters, or in which a consul, or vice consul, sh all be a party. And the trial of issues of fact in the upreme ourt, in a ll actions at law against citizens of the United States, hall be by jury, The upreme Court s ha ll also have a ppellate jurisdiction from the circuit court and courts of the several states, in the cases herein after specially provided for; and shall have power to is ue writs of prohibition to the district courts, when proceeding a court of admiralty and maritime jurisdiction, a nd writs of mandamus, in cases warranted by the principles and u ages of law, to any courts appointed, or persons holding office, under the authority of the United tates." 1

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If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words [require]. When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, a nd not appellate; in the other it is appellate, and not original. If a ny other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. To enable this court, then, to issue a mandamus, it must be shown t o be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it r evises and corrects the proceedings in a cause already instituted, and does not cr eate that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore seem s not to belong to appellate, but to original jurisdiction. Neither is it ne~essary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to th~ Supreme Court, by the act establishing the judicial courts of the Umted States, to issue writs of mandamus to public officers, appears not. to be warranted by the constitution; and it becomes necessary to enqmre whether a jurisdiction, so conferred, can be exercised. The question, whether a1:1 act, repu~ant to_the constitution, can become the law of the land is a quest10n deeply mterestmg to the United States· but happily, not of ~ intricacy proportioned to its interest. It seems ' onl;

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SECTION 1. THE POWER OF JUDICIAL REVIEW

necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they procee d is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution

is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what wa established in theory; and would seem, at first view, an absurdity too gro to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular ca e , must of necessity expound and interpret that rule. If two law conflict with each other, the courts must decide on the operation of each.

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o if a law be in opposition to the constitution; if both the ~aw and the constitution apply to a particular case, so that the court must e1~h er_ decide that case conformably to the law, disregarding the constitut10n; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would d~clare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution-would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave t his power, to say that in using it the constitution should not be looked into? T hat a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? Tb.ere are many other parts of the constitution which serve to illustrate this subject. It is declared that "no tax or duty shall be laid on articles export.ed from any state."_ Suppose a duty ?n the ex~ort of cotton, of tobacco, or of flour- and a suit instituted to recover 1t. Ought Judgment to be rendered in such a ~ase? Ought the judges to close their eyes on the constitution, and only see the law? The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, howev_er, such a bill should be passed, and a person should be prosecuted under 1t; must the court condemn to death those victims whom the constitution endeavors to preserve? " 0 person," says the_constitution, "shall be convicted of treason unl ss on the testimony of two witnesses to the sa~e ?ve~t act, or on confession in op n court." Here the language of the const1tut10n 1s addressed especially to

SECTION 1. THE POWER OF JUDICIAL REVIEW

the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act? From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as _ _ _ , according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constit ution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitut10ns, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

THE BACKGROUND AND MEANING OF MARBURY V. MADISON 1. The political and historical setting. The Marbury case represented just one clash between the Jeffersonian Republicans and the Marshall Court over the power of the federal judiciary. John Marshall, Secretary of State in the Cabinet of lame-duck Federalist President John Adams, was nominated as Chief Justice in January 1801 and took his oath of office on February 4, 1801. On February 17, the House of Representatives elected Thomas Jefferson President. Marshall continued to act as ecretary of State through March 3, 1 01 , the end of Adams's term. (Article I 6 of the Constitution prohibits a member of Congress from serving imultaneou ly in "any civil office under the authority of the United States," but nothing in the Constitution expressly prohibited serving in the judiciary and th e e utiv branch at once.) Indeed, on March 4, 1801- the day Mar hall a hief Justice administered the oath of office to new President Jeffer on- Mar hall agreed to comply with Jefferson's request "to perform the duti s of retary

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of tate until a successor be appointed." James Madison, the defendant in Marbury, later became Marshall's successor as Secretary of State. Four days before Jefferson's election the Federalist Congress began efforts to maintain control of the federal j~diciary. The Circuit Court Act of February 13, 1801, created sixteen Circuit Court judgeships that went to Federalists nominated during the last two weeks of Adams's term (the socalled "midnight judges"). Marbury and his co-petitioners were nominated to positions as justices of the peace created under the Organic Act of the District of Columbia passed February 27, 1801, less than a week before the end of Adams's term. Adams named 42 justices on March 2, 1801, and the Senate confirmed them on March 3, Adams's last day in office. The commissions of the petitioners in the Marbury case had been signed by Adams- as well as signed and sealed by Secretary of State Marshall-but not all of them had been delivered by the end of the day, and new President Jefferson chose to treat them as a "nullity." As Marshall wrote two weeks later, "I should [have] sent out the commissions which had been signed & sealed but for the extreme hurry of the time." The Jeffer onians soon demonstrated that they would not complacently accept Federalist entrenchment in the judiciary: they made repeal of the Circuit Court Act of 1801 an early item of business in the new Congress. The 1 01 Act was repealed on March 31, 1802, while the Marbury case was pending in the Supreme Court. During these congressional debates, a few Jeffersonians questioned the Court's authority to considor the constitutionality of congressional acts. In still another sign of moun ting hostility to the Court, Congress abolished the June and December Terms of the upreme Court created by the 1801 Act and provided that there w ould be only one Term, in February. Accordingly, there was no Court session in 1802; the Court that had received Marbury's petition in December 1801 could not reconvene until February 1803. Wielding a still more potent weapon early in 1802, the J effersonian House voted to impeach Federalist District Judge John Pickering of New Hampshire, and many feared that impeachment of Supreme Court J ustices would follow. The choice of Pickering as the first target, however, w as a questionable one. Pickering, suffering from alcoholism and perhaps m e ntal illness, was plainly incompetent to serve as a judge, but it took some stretching to convert this into "Treason, Bribery, or other high Crimes a nd Misdemeanors" as required by Art. II, § 4, of the Constitution. Never thele ss, the Senate voted to remove Pickering from office in March 1804. On the day after Pickering's removal, Congress moved on to bigger game: the House impeached Supreme Court Justice Samuel Chase. To the Jeffersonians, Chase was a glaring example of Federalist abuse of judicial office: he had made electioneering statements from the bench in 1800, and he had conducted several vindictive sedition trials. A few months after the Marbury decision, he provided the immediate provocation for his impeachment: in May 1803, in a parti~an charge to the federal grand jury in Baltimore, he criticized the Jefferso:~uans' repeal of the 1801 Circuit ourt Act. The Senate tried Chase early m 1805. Were judges impeach a bl for conduct that did not constitute_an indictable offense? !he debate was len gthy and important: if the case agamst Chase succeeded, 1t was widely expect d Marshall and other federal judge~ w?uld be next. But the Senate vot did not produce the constitutional maJon~y nece~1sary ,~?. convict Chase. Th impeachment weapon was deflated- it was a farce, not ven a scare-cr ow ,"

SECTION 1. THE POWER OF JUDICIAL REVIEW

as Jefferson reluctantly concluded. The Jefferson-Marshall dispute continued, but the Court had survived the most critical stage. 2. Was the question ofjudicial review avoidable? Could Marshall have decided Marbury's case in a way that obviated any need for its final pages establish ing the power of judicial review of congressional enactments? Consider the following alternative routes by which Marshall might have avoided reaching the opinion's influential conclusion: a. Recusal. Marshall was intimately acquainted with t he facts of the Marbury controversy. As Secretary of State, he had signed and sealed Marbury's undelivered commission. An affidavit by his own brother James was introduced to prove the existence of some of the commissions. (James Marshall stated that he was to deliver a number of the commissions but that, "finding he could not conveniently carry the whole," he r eturned "several of them" to his brother's office.) In view of his in volvement in the controversy, Marshall might have disqualified himself from participation in the decision. b. Common law . The commission was a form of property, and Marshall determined that it vested when signed and sealed. He might have decided, however, that a commission does not vest as a matter of law until its deliver y. In that case, Marbury would not have been entitled to the benefit of the commission despite the previous administration's signature and seal. c. Political question. Marshall determined that Marbury's right to his commission was a legal, not political question, and thus a writ of mandamus would ordinarily be appropriate. He instead might have ruled the question whether Marbury's commission must be delivered a political question committed to the unreviewable discretion of the executive branch. He might also have ruled that, as a matter of prudence, cabinet officers should not be made subject to writs of mandamus. d. Statutory construction. Marshall construed § 13 of the Judiciary Act of 1789 as expanding the original jurisdiction of the Supreme Court by authorizing it to issue writs of mandamus to executive officers. He might have found instead that the Act conferred mandamus power only apposite to appellate jurisdiction, and dismissed for lack of jurisdiction since this was not an appeal. Alternatively, he might have found that the Act conferred mandamus power apposite to one of the constitutionally authorized categories of original jurisdiction, and again dismissed for lack of jurisdiction since this case did not fall into any of those categories. e. Constitutional interpretation. Marshall interpreted Art. III, § 2, cl. 2, as setting forth an exhaustive list of the categories of possible Supreme Court original jurisdiction. He might have interpreted the list instead a illustrative but not exhaustive, as setting a floor but not a ceiling. In this case, the statute would not have been unconstitutional even if it were interpreted as an expansion of the Court's original jurisdiction becau e Art. III would not have precluded such expansion. 3. Marshall's accomplishment in Marbury. Marshall' conspicuous avoidance of all the above escape hatches led Jefferson years later to complain that the "case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on it being mer ely an obiter dissertation of the Chief Justice." Letter from Thomas Jefferson to J ustice William Johnson, June 12, 1 23, 1 . ar. His. len. Mag. 1, 9-10 (1900) . One influential account hold that "[t] he d cision i a masterwork of indirection, a brilliant example of Mar hall' capa it to

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s ides t e p danger while seeming to court it, to advance in one d~rection while his opponents are looking in another." McCloskey, The American Supreme Court 25 (1960; 2d ed., Levinson, 1994). Faced with the unpalatable options of granting mandamus only to have his order defied, on one hand,. and caving to the will of the Jeffersonians, on the other, Marshall found a third way. By construing§ 13 of the Judiciary Act of 1789 broadly and Art. III, § 2, cl. 2 of the Constitution narrowly, Marshall discovered (some might say "invented") a constitutional conflict that robbed the Court of jurisdiction. This solution allowed Marshall not only to save the Court from embarrassment, but to present itself as a vindicator of the laws, a check on the other branches of government, and an institution mindful of the value of self-restraint. On this view, the denial of mandamus shrewdly avoided an immediate confrontation with the executive while providing a shield for the Court's assertion and exercise of the power of judicial review. Scholars have debated just how intentional this subterfuge was, with some insisting that Marshall's interpretations of § 13 and Art. III were simply incorrect, see Van Alstyne, "A Critical Guide to Marbury v. Madison," 1969 Duke L.J. 1, while others find them "a good deal closer to certain features of his contemporaries' understanding of section 13 and Article III than the traditional account assumes," see Pfander, "Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers," 101 Colum . L. Rev. 1515 (2001). Some have argued that any technical flaws in the opinion were aimed at accomplishing Marshall's larger goals. See Eskridge, "All About Words: Early Understandings of the 'Judicial Power' in Statutory Interpretation, 1776-1806," 101 Colum. L. Rev. 990 (2001) ("Although Marbury [is] counter-textual, [its] statutory sleight of hand was not a result of carelessness or inability, for the author was the most astute statutory analyst of the founding and consolidating periods."). Marshall's opinion resonated with his fellow Federalists' position in their debate with Republicans over the federal judiciary's role: "The Republicans insisted that a judiciary armed with the authority to nullify acts of Congress, and both insulated and isolated from political responsibility, would become the tyrant, bending the nation to its will. [In] the Federalist lexicon, [by contrast,] the people were 'their own worst enemies.' They would be driven by their passions to the election of demagogues (such as J efferson) who would lead an assault on the rights of the stable and virtuous members of the community (by undermining a national judiciary that was the best guarantor of these rights). Marshall's opinion in Marbury was loyal to this vision." O'Fallon, ''Marbury," 44 Stan. L. Rev. 219 (1992). A recent, comprehensive study of the pre-Marbury case law in both state and federal courts concludes that judicial invalidation of statutes for unconstitutionality was in fact surprisingly frequent, which "not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury," but "also makes [Marshall's] often-criticized reasoning in the case understandable: what appears to be a puzzling, unconvincing and ~q~el~ _aggres~i~e ex~rcise _of judicial revi w was fully consistent with pr10r Jud1c1al dec1s10ns m which courts had invalidated statutes that trenched on judicial authority and autonomy." Treanor "Judicial Review Before Marbury," 58 Stan. L. Rev. 455 (2005). ' 4. Pre-constitutional antecedents of the power of judicial review. L-Ord Coke famously stated in Dr. Bonham's Case, 8 Rep. 118a ( .P . 1610), that "the common law will controul acts of Parliament, [and] adjudge

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them to be utterly void" when the acts are "against common right and reason." But that was not truly descriptive of British practice in the seventeenth and eighteenth centuries. While the Privy Council had appellate jurisdiction over colonial courts, invalidation of legislation through that route was rare and unpopular. A number of state court decisions in the years between independence and the federal constitutional convention involved judicial invalidation of state legislation. Scholars have debated the significance of these cases. While some have minimized their significance, see Crosskey, Politics and the Constitution In The History Of the United States (1953), more recent scholarship has increasingly found them to provide significant evidence of pre-constitutional acceptance of the power of courts to invalidate statutes on both written and unwritten constitutional grounds, see Sherry, "The Founders' Unwritten Constitution," 54 U. Ch i. L. Rev. 1127 (1987); Treanor, "The Case of the Prisoners and the Origins of Judicial Review," 143 U. Pa. L. Rev. 491 (1994). The spread of general ideas conducive to the acceptance of judicial review was perhaps more important than the existence of specific precedents. See Bailyn, The Ideological Origins of the American Revolution (1967), and Wood, The Creation of the American Republic, 1776-1787 (1969). Wood finds an especially hospitable climate for the development of judicial review in the evolving theories of the 1780s, particularly the replacement of traditional notions of legislative sovereignty by emphasis on popular sovereignty. For example, future Supreme Court Justice James Iredell developed, :n the 1780s, the view that the will of the people as expressed in a constitution was superior to any legislative enactment. See Casto, "James Iredell a nd the American Origins of Judicial Review," 27 Conn. L. Rev. 329 (1995) . 5. The Framers' understanding of judicial review. Did the Framers intend to grant the Court the power of judicial review? Some scholars argue that they did, and offer evidence from the debates surrounding the ratification of the Constitution. See Prakash & Yoo, "The Origins of Judicial Review," 70 U. Chi. L. Rev. 887 (2003). Others find little evidence of the framing generation's belief in judicial invalidation of statutes, especially of federal statutes. See Kramer, "The Supreme Court, 2000 Term-Foreword: We the Court," 115 Harv. L. Rev. 5 (2001). One historical study found a well-developed tradition in which British and colonial courts invalidated corporate bylaws for "repugnancy'' to law, and concluded that "the court's ability to void repugnant legislation was simply assumed" by the framing generation "because of past corporate and colonial practices that limited legislation by the laws of the nation." Bilder, "The Corporate Origins of Judicial Review," 116 Yale L.J. 502 (2006). A more recent study has argued that litigation to interpret colonial corporate charters, such as that of the Massachusetts Bay Company, should be understood as a precursor to judicial review under the federal Constitution. Bowie, "Why the Constitution Wa Written Down," 71 Stan. L. Rev. (2019). In the Convention debates themselves, the most important statement regarding judicial power were made in discussion of a Council of Revision proposal that the Justices join with the President in the veto proce s. ee generally Farrand, The Records of the Federal Convention of 17 7 (1911). That provision was rejected, partly on grounds that a sumed the e, istence of judicial review. Anti-Federalist Luther Martin, for example, thought "the

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a ociation of the Judges with the Executive" a "dangerou_s inn?vation": "[The] Constitutionality oflaws [will] come before the Judges m their proper official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. It is necessary that the Supreme Judiciary should have the confidence of the people. This will soon be lost, if they are employed in the task of remonstrating [against] popular measures of the Legislature." The Federalist Papers provide more explicit support for judicial review. These essays, which have become classic commentaries on the Constitution, were written by Alexander Hamilton, John Jay and James Madison, under the pseudonym Publius, and published in newspapers as campaign documents in defense of the proposed Constitution during the ratification proceedings in ew York. The Federalist essays most directly concerned with the judiciary were five written by Alexander Hamilton, Nos. 78 through 82. The most famous is The Federalist, No. 78, in which Hamilton wrote: "[Whoever] attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be th e least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The judiciary [has] no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment. "[Some] perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can decla re the acts of another void, must necessarily be superior to the one whose acts may be declared [void]. There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act therefore contrary to the constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorise, but what they forbid. "If it be said that the legislative body are themselves the constitu t ional judges of their own powers, and that th~ construction they put upon th em is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, w~er~ it is . not to be collected from a ny particular provisions in the const1tut10n. It 1s not otherwise to be supposed that the constitution could intend to _enable ~he representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the co~ were de~igned to be an intermediate body betw een the people and the legisla_ture, m or~er, amo~g other things, to k eep the latter within the limits ass1~ed to th~ir authority. The interpretation of the laws is the proper and peculiar pr_ovmce of the courts. A constitution is in fact, and must be, regarded ~y ~heJudge_s as a fundamental law. IL th er efore belongs to them to a~certam its me~mg_as well as th meanin g of a ny particular act proceeding _from the legislative body. If there should happ n to b an irrecon~b~e vanance between the two, that whi~h has th s up rior obligation and validity ought of course to be preferred; or m other words, th

SECTION 1. THE POWER OF JUDICIAL REVIEW

constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. [It] can be of no weight to say that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body." 6. Modern perspectives on Marbury. Some two centuries after the Marbury decision was handed down, legal scholars are still debating the importance of Chief Justice Marshall's opinion. While the conventional understanding of Marbury as a brilliant doctrinal gambit continues to hold sway, some accounts suggest that the historical importance of the opinion has been overstated: ''Marbury, it turns out, is a great deal less important than is commonly supposed. [Marbury] cannot have established the power of judicial review, since that power already was widely accepted before the Supreme Court's ruling. [If] judicial review had not already been wellestablished by the time of Marbury, that decision would not have convinced skeptics that the Constitution authorized the practice [because] Marbury's arguments in defense of judicial review are so thoroughly unpersuasive. [Marbury] declared the power of judicial review, but the early Marshall Court generally was too weak to exercise it." Klarman, "How Great Were the 'Great' Marshall Court Decisions?," 87 Va. L. Rev. 1111 (2001). Other critics suggest that the historical importance of the case was trumped up in the late nineteenth century by those favoring aggressive judicial review: "[Proponents] of judicial review during the late nineteenth century [elevated] the Marbury decision- and Chief Justice John Marshallto icon status to fend off attacks that the Court had acted in an unwarranted fashion. In the process, Marbury became, for the first time, a 'great case'as measured by its treatment in judicial opinions, legal treatises, and casebooks-a moniker that would have been ill applied to the decision for most of the nineteenth century." Dougla , "The Rhetorical Uses of Marbury v. Madison: The Emergence of a 'Great Ca e,'" 38 Wake Forest L. Rev. 375 (2003) . On this view, the Marbury of 1 03 may be quite different from th modern Marbury. See nowiss, Judicial Review and the Law of the Constitution (1990). By contrast, other commentators expre continued admiration for Marshall's institutional accomplishment in Marbury:" reading of 1arbur that cannot see its heroism is an obtuse reading. It wa in th te th of [a] massive assault on th judiciary that in Marbury, after all, ar hall to k all th power for th courts that there was to take-power over th . uti , the legislature, the works. And Marshall was not afraid to l t J f~ r on know

15

16

HAPTER 1.

THE SUPREME COURT'S AUTHORITY AND ROLE

hat he thought of him. [In] Marbury, a great f~ther_of o~r country bequeathed to us his greatest legacy and our most precious mhe~1t~nc~the inestimable treasure of an enforceable Constitution. [Perhaps] it 1s time to forgive ourselves for saying, ['This] is our greatest case.' " Weinberg, "Our Marbury," 89 Va. L. Rev. 1235 (2003). At a minimum, say some commentators, Marbury is essential to understanding the Court's subsequent institutional role: "To understand Marbury is to understand the practice of constitutional law, or at least the judicial role; and to understand our constitutional practice is to understand Marbury. The two are too much interconnected in the constitutional mind for a perception of one not to color, or indeed sometimes determine, an understanding of the other." Fallon, ''Marbury and the Constitutional Mind: A Bicentennial Essay on the Wages of Doctrinal Tension," 91 Calif. L. Rev. 1 (2003). Finally, some suggest that critique is futile, as judicial review has become irreversibly embedded in the American psyche as a practical matter: "[A]ny organized attack on judicial review will encounter almost inevitable resistance, since Marbury is so firmly established in the constitutional system of a nation that is so profoundly conservative in preserving the continuity of its political institutions." Ross, "The Resilience of Marbury v. Madison: Why Judicial Review Has Survived So Many Attacks," 38 Wake Forest L. Rev. 733 (2003).

SECTION 2. SUPREME COURT AUTHORITY TO REVIEW STATE COURT JUDGMENTS While Marbury established Supreme Court review of the constitutionality of actions of a coordinate branch of the federal government, a second major Marshall Court decision, Martin v. Hunter's Lessee, legitimated Supreme Court authority to review judgments of the state courts. As Justice Oliver Wendell Holmes famously observed, Supreme Court review of cases challenging state laws may in the long run have been the more important power: ''I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Holm.es, Collected Legal Papers 295 (1920). The Martin case involved a controversy over Section 25 of the Judiciary Act of 1789, which provided for Supreme Court review of final decisions of the highest state courts rejecting claims based on federal law- including federal constitutional law. 1 The Constitutional Convention debates had contemplated that federal questions could initially arise in state as well as 1 The full text of§ 25 of the 1789 Judici~ry Act provi~ed: ',:hat a final judgment or decree in any suit, in the highest cour1: of law or ~~wty of a State m which a decision in the s uit could be had, where is drawn in question the of of, or an authority e xerc1se • d .d. . .validity . . a treaty h . or statute · ques t 10n · under the United States, and the dec1s1on.18 agamst . t err va11 1ty; or where is drawn m th validity of a statut.e of, or an authority exercised under any State, on the grou d f ti . . . treat·1es or Iaws of the Umte . d States and the d n . .o .1e1r being repugnant to the const1tution, . · · · · dr · · h .' ec1s1on 1s m favour of such their validity, or where is awn m ~u~stion t e construction of any clause of the constitution, or of 8 treaty, or statute of, or comm1ss1on held under the United St te d h · IIY set up or claimed a s aneither t e · d .. n is against the title, n·ght, ~n·vilege_or ~xempt·ion spec1a party under ucb clause of the said constltut1on, treaty, statute or commissio Yb examined and reversed or affirmed in the Supreme Court of the United States n, may . r · " upon a [writ of nor] .

b

SECTION 2. SUPREME COURT AUTHORITY TO REVIEW STATE COURT JUDGMENTS

federal courts. Article III, which left the creation and jurisdiction of lower federal courts to the discretion of Congress, reflected a compromise between mandatory creation of lower federal courts and leaving initial application of federal law entirely to the state courts. This compromise, together with the Supremacy Clause of Art. VI, assumed that Supreme Court review would assure any necessary federal uniformity. That assumption would be tested in Martin.

Martin v. Hunter's Lessee 1 Wheat. (14 U.S.) 304, 4 L. Ed. 97 (1816).

[The case arose from the refusal by the Virginia Court of Appeals to obey the Supreme Court's mandate in Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (11 U.S.) 603 (1813). That ruling resulted from a land dispute instituted in 1791 concerning the vast land holdings of Lord Fairfax. Virginia claimed that it had properly seized the Fairfax properties prior to 1783 as lands belonging to British loyalists during the Revolution and parceled out some of the land to its own citizens. Hunter claimed the land at issue under such a Virginia grant. Martin claimed title under a devise from Fairfax in 1781, claiming that title had not vested in Virginia prior to 1783 and, crucially, that his title was protected under various federal treaty provisions. Hunter's litigation was in abeyance for almost two decades. In 1810, the Virginia Court of Appeals decided for Hunter, holding effective Virginia's seizure of the Fairfax lands. The United States Supreme Court reversed in 1813, siding with Martin and "instruct[ing]" the Virginia judges to E'nter judgment for Martin. The Virginia court issued a decision in 1815 declinmg to obey concluding that "the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the constitution of the United States, 'and that § 25 was therefore unconstitutional.'" The Virginia judges claimed that the Constitution did not authorize federal courts to act directly upon, and reverse, state court rulings. The Virginia judges did not deny the supremacy of valid federal law under Art. VI of the Constitution. But they argued that if federal questions were permitted to arise in the state courts, then state courts must provide final adjudication. The Virginia court's challenge to § 25 elicited the following decision upholding that provision's constitutionality, authored for the Court by Justice Joseph Story, a Jeffersonian Republican from Massachusetts.] ■ JUSTICE STORY delivered the opinion of the Court: [The] appellate power is not limited by the terms of the third article [of the Constitution] to any particular courts. The words are, "the judicial power (which includes appellate power) shall extend to all cases," & c., and "in all other cases before mentioned the supreme court shall have appellat jurisdiction." It is the case, then, and not the court, that give th jurisdiction. If the judicial power extends to the case, it will be in vam to search in the letter of the constitution for any qualification as to the tribunal where it depends. [It] was foreseen that in the exercise of their ordinar jurisdiction, state courts would incidentally take cognizance of cas s an ing under the constitution, the laws, and treaties of the United tat . Y t to all these cases the judicial power, by the very terms of the con titution, i to

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18 CHAPTER 1. THE SUPREME COURT'S AUTHORITY AND ROLE ~---~~:..!.!:!~~~~~~~~~~~~~~:.=---------

extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts; [it] must, therefore, extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to state tribunals. [It] has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independen ce of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent. It is a mistake [to believe] that the constitution was not designed to operate upon states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. [ or] can [this] be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United tates, they are not independent; they are expressly bound to obedience, by the letter of the [constitution]. [The] argument urged from the possibility of the abuse of the revising power, is equally unsatisfactory. It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. [From] the very · nature of things , the absolute right of decision, in the last resort, must rest somewhere-wherever it may be vested, it is susceptible of abuse. [It] is further argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own courts: first, because state judges are bound by an oath to support the constitution of t he United States and must be presumed to be men oflearning and integrity. [A]dmitting that the judges of the state courts are, and always will be, of as much learning, integrity and wisdom as those of the courts of the U nited States (which we very cheerfully admit) [does] not aid the argumen t. [The] constitution has presumed [that] state attachments, state prejudices, s ta te jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. [This] is not all. A motive of another kind, perfectly compatible with the most sincere respect for state tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all s ubjects within the purview of the constitution. Judges of equal learning an d integrity, in different states, might differently interpret a statu te, or a tr eaty of the United States, or even the constitution itself: if there wer e no r evising authority to control these jarring and discordant judgments, and h a rmonize them into uniformity, the laws, the treaties and the constitution of t he United States would be different in different states. [The] public mischiefs that would attend such a state of things would be truly [deplorable].

SECTION 2. SUPREME C OURT AUTHORITY TO REVIEW S TATE C OU RT JUDGME TS

FURTHER CLASHES BE'IWEEN SUPREME COURT AND S TATE COURT AUTHORITY 1. Supreme Court review of state criminal cases. The Martin dispute was only the first of several states' righ ts att acks on § 25. In Cohens v . Virginia, 6 Wheat. (19 U.S.) 264 (1821), the Court sustained its jurisdiction to review the validity of state laws in criminal proceedings. That case a rose from the conviction of the Cohen brothers in a Norfolk, Virginia court for selling District of Columbia lottery tickets in violation of Virginia law. The Cohens claimed that, under the Supremacy Clause, they were immune from state laws in selling congressionally authorized lottery tickets. The Supreme Court ultimately decided against them on the merits, reading the congressional statute as conferring no such immunity. But the major issu e was jurisdictional: did the Supreme Court have constitutional a ut h ority to review such state judgments? Virginia's counsel reiterated the arguments advanced in Martin. They also emphasized that here, unlike in Martin, the State was a named party in the case. They argued that the grant of original jurisdiction to the Supreme Court of cases "in which a state shall be a party" precluded, by negative implication, the exercise of appellate jurisdiction in such a case. Marshall did not participate in Martin v. Hunter's Lessee because he and his brother James had earlier contracted for the purchase of a large part of the Fairfax estate from the Fairfax heirs. The Cohens case gave Chief Justice MARSHALL the chance to have his say on § 25. Marsh all's opinion reaffirmed and extended Story's defense of the constitutionality of§ 25 and answered Virginia's new contentions by concluding "that the judicial [power] extends to all cases arising under the constitution or a law of the United States, whoever may be the parties." Marshall took a harsher view of the reliability 01 state judges than Story had expressed in Martin: "In many States, the iudges are dependent for office and for salary on the will of the legislature. (\•lhen] we observe the importance which [the Constitution] attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist." Marshall's doubts about the capacity of state judges to interpret and enforce federal law adequately have persisted. For an argument in this vein, see, e.g., euborne, ''The Myth of Parity," 90 Harv. L. Rev. 1105 (1977), emphasizing that federal judges are "as insulated from majoritarian pressures as is functionally possible" but that state judges "generally are elected for a fixed term, rendering them vulnerable to majoritarian pressure when deciding constitutional cases." But see Rubenstein, "The Myth of Superiority," 16 Const. Comment. 599 (1999). 2. Later state challenges to§ 25. In the years before the Civil War, a number of states other than Virginia challenged the power of the upreme Court to review state court decisions-often on grounds far broader than those advanced by Virginia in the Martin and Cohens case . ee Warren, "Legislative and Judicial ttacks on the upreme Court of the United States- A History of the Twenty-Fifth ection of the Judiciary ct," 47 rn. L . Rev. 1 (1913). The courts of seven states issued challenge . And in ongress, there were several attempts to repeal 25- the fir t major on m 1821, immediately after Cohens; the most seriou one in 1 31. Th ffort failed. For a history of ongress's attempt to repeal 25 in 1 31, rab r , "James Buchanan as avior? Judicial Power, Political Fragm ntat1 n, nd the Failed 1831 Repeal of Section 25," Or. L. R v. 95 (2009).

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20

CHAPTER 1. THE SUPREME COURT'S AUTHORITY AND ROLE

3. State interposition and nullification. More extrein:e positions asserted the states' right to "interpose" their own interpretations of the Constitution against federal decisions, based on the _theory that the Constitution was merely a compact among the sovereign states._ Such assertions varied in operative consequences. The Kentucky Resolutions of 1798, for example, urging congressional repeal of the Alien and Sedition Laws, denied that constitutional interpretations are exclusively the function of the federal courts or that federal court interpretations bind the nation. (The anonymous author of the Kentucky Resolutions was Thomas Jefferson.) The South Carolina ullification Ordinance of 1832 asserted the claimed power of a state to block-at least temporarily, until the Constitution could be amended~nforcement of "unconstitutional" federal laws within the state.

SECTION 3. JUDICIAL ExCLUSMTY IN CONSTITUTIONAL INTERPRETATION Marbury v. Madison has often been said to have elided two separate questions: First, is the Constitution the supreme law of the land? Second, are the courts the ultimate or exclusive interpreters of the Constitution, or do other branches of government share in that authority? To say that a government may not exceed its constitutional powers does not necessarily demonstrate who is to decide whether a law conflicts with the constitution: "The premise of a written Constitution would not be disserved, and legislative power would not necessarily be unbounded, if Congress itself judged the constitutionality of its enactments. Under such a system, courts would not ignore the Constitution; rather, they would simply treat the legislative interpretation as definitive, and thus leave to Congress the task of resolving apparent conflicts between statute and Constitution." Tribe, 1 American Constitutional Law§ 3-2 (3d ed. 2000). Marbury's position on the judiciary's role is itself ambiguous. On a narrow reading of Marbury, judicial review is simply a byproduct of a court's duty to decide cases within its jurisdiction in accordance with law, including the Constitution. Recall Marshall's modest statement that the Cons ti t u tion is "a rule for the government of courts as well as the legislature" and thus that "courts, as well as other departments, are bound by that instrument." A broader reading of Marbury, however, regards the courts as having special competence to interpret law, including the Constitution, so that they a r e the ultimate, supreme interpreters of the Constitution. Recall Marshall's statement in Marbury that "[i]t is emphatically the province and duty of the judicial department to say what the law is," and the fact that much of his argument aimed to establish that courts are institutionally competent to consider issues of constitutionality. Recall too Hamilton's stronger statement in The Federalist, No. 78: "The interpretation of the laws is the prope r and peculiar province of the courts." One famous statement of the second broader interpretation of Marbury arose in the aftermath of Brown v. Board of Education, 347 U.S. 483 (1954), which held unconstitutional the racial segregation of the public schools.

SECTION 3. JUDICIAL EXCLUSMTY IN CONSTITUTIONAL INTERPRETATION

Cooper v. Aaron 358 U.S. 1, 78 S. Ct. 1401, 3 L.

Ed.

2d 5 (1958).

[Following Brown v. Board of Education, many southern jurisdictions resisted court orders mandating integration. An Arkansas federal district court, relying on Brown, directed desegregation of the Little Rock schools. The Little Rock school board, seeking to comply with that decree, was blocked in its efforts when Governor Orval Faubus placed Little Rock's Central High School "off limits" to African-American students and called out the National Guard. After a district court injunction against the Governor, the troops were withdrawn and African-American students were able to attend school under the protection of federally commanded troops, although resistance and protest continued. When the school board sought a postponement of the desegregation program, the district court granted that relief, noting the existence of "chaos, bedlam and turmoil" and finding the situation "intolerable." The court of appeals reversed; and that decision was affirmed by the Supreme Court, which in a highly u nusual move, issued this jointly signed opinion.] ■ Opinion of the Court by CHIEF J USTICE (WARREN and J USTICES] BLACK, F'RANK.FuRTER, DOUGLAS, B URTON, CLARK, HARLAN, B RENNAN, and WHITIAKER:

[This case] raises questions of the highest importance to the maintenance of our federal system of government. It [involves] a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of t h e United States Constitution. Specifically it involves actions by th e Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in [Brown.] [The] constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. [The] constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in [Brown] can neither be nullified openly an d dir ectly by state legislators or state executive or judicial officers, nor n ullified indirectly by them through evasive schemes for segregation. [This] is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine. Article VI of the Constitution makes the Constitution the "su preme Law of th e Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of th e nation," declared in the notable case of Marbury v. Madison that "It i e mphatically the province and duty of the judicial department to say what the la w is." This decision declared the basic principle that the federal j udiciary is su preme in thee position of the law of the Constitution, and that principle h as ever since been respected by this Court and the ountry a a perma nent and indispensable feature of our constitutional y tern. It follow th at th e interpretation of the Fourteenth mendment enunciated by this ou rt in th e Brown case is the supreme law of the land, and Art. VI of the onstit ution makes it of binding effect on the tates ''an Thing in the onstitution or Laws of a ny State to the Con trary notwith tnnding." Every

21

tate legislator and executive and judicial officer is solemr:ily ~om,~itted by oath taken pursuant to Art. VI, ~ 3, "to support this C?nst1tu tion. N? state legislator or executive or judicial officer can war agamst the Constitution without violating his undertaking to support it. [The] decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us.

THE AUTHORITATIVE ESS OF SUPREME COURT D ECISIONS 1. The meaning of Cooper. Was Cooper truly a restate ment of "settled doctrine" since Marbury, or was it a substantial expansion of the authority asserted by Chief Justice Marshall? Some commentators believe Cooper expanded Marbury by "confus[ing] Marshall's assertion of judicial authority to interpret the Constitution with judicial exclusiveness." Gunther, "The Subtle Vices of the 'Passive Virtues'-A Comment on Principle and Expediency in Judicial Review," 64 Colum. L. Rev. 1 (1964). Would the Court's opinion in Cooper have been more persuasive if it had urged the prudence of compliance with Brown rather than commanding adh •)re nce to that decision as supreme law? The Court might have stated that, although the Brown decision did not technically bind Arkansas because the sta te was not a party to the case, the Court was likely to continue to adhere to its unanimous ruling in Brown and thus state officials ought, in the interest of prudence and avoiding chaos in the legal system, to "obey'' rather than r esist Brown. 2. Critique of Cooper as asserting judicial hegemony. In a widely discussed 1987 speech, Edwin Meese, Attorney General in the Reagan administration, declared Cooper "at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law." Meese distinguished the Constitution , which Article VI accords the status of "Supreme Law of the Land," from "what the Supreme Court says about the Constitution in its decisions." H e wrote: "Obviously [a decision of the Supreme Court] does have binding qua lity: it binds the parties in a case and also the executive branch for wha t ever enforcement is necessary. But such a decision does not establish a s upreme law of the land that is binding on all persons and parts of governme nt henceforth and forevermore." Meese, ''The Law of the Constitution," 61 Tul. L. Rev. 979 (1987). Meese's article drew much critical commentary. Ramsey Cla rk Attorney General du~_g _the Johns~n administ~~tion and son of on of th ~ signators to Brown! cnt1c1_zed Meese s Sf eech as a clumsy, vagu assault on law. [If] the same issues m dese~e~ation o:ders had to be litigate d to the upreme Court for ~verr, school ~1stnct'. [res1stan_ce t_o desegr gation] would hav prevailed outnght. Clark, Endunng Const1tut10nal Issues" 61 T 1 L Rev. 1093, 1094 (1987). But some commentators defended Meese'~ appr~a-ch ;

SECTION 3. JUDICIAL ExCLUSMTY IN CONSTITUTIONAL INTERPRETATION

"[The] denunciation of Meese's speech [legitimates] government by legally trained elites, speaking an evermore esoteric language. [James] Madison's call in The Federalist for veneration of the Constitution has triumphed over Jefferson's plea for r ecurrent consideration of its utility and potential defects." Levinson, "Could Meese Be Right This Time?" 61 Tul. L. Rev. 1071, 1078 (1987) . 3. Are Supreme Court interpretations binding on Congress? Article V provides t hat Congress may init iate an amendment to the Constitution, and the a mendment process can be used to overturn a constitutional interpreta tion of the Supreme Court. But may Congress effect such an overruling by stat ute? Dickerson v. United States, 530 U .S. 428 (2000), answered that question no. Chief Justice REHNQUIST wrote for the Court: "In Miranda v. Arizona, [384 U.S. 436 (1966)], we held that certain warnings must be given before a suspect's stat ement made during custodial interrogation could be admitted in evidence. In th e wake of that decision, Congress en acted 18 U.S.C. § 3501, which in essence laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily m ade. We hold that Miranda, being a constitutional decision of this Court, ma y not be in effect overruled by an Act of Congress. "[The] law in this area is clear. This Court h as su pervisory authority over t h e federal courts, and we may u se th at auth ority to prescribe rules of evidence and procedure that are binding in th ose tribunals, [although Congress] retains the ultimate authority to modify or set aside a ny judicially cre ated rules of evidence and procedure th at are not required by the Constitution. But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. This case therefore t urns on whether the Miranda Court announced a con stitutional rule or merely exercised its supervisory authority to regulate evidence in th e absence of congressional direction. "[Miranda] is a constitutional decision [that Congress may not supersede legislatively.] [Both] Miranda and [its] companion cases applied the rule to proceedings in state courts-to wit, Arizona, California, and New York. [It] is beyond dispute that we do not hold a supervisory power over th e courts of the several States. With respect to proceedings in state courts, our 'au thority is limited to enforcing the commands of the United St a tes Constitution.' [Moreover, the Miranda] opinion is replete with statem ents indicating that the majority thought it was announcing a constitu tion al rule. [Additional] support for our conclusion that Miranda is constitu tionally based is found in the Miranda Court's invitation for legislative [solution s] th at differed from the prescribed Miranda warnings bu t which wer e 'at least as effective in apprising accused persons of their right of silence a nd in assu ring a continuous opportunity to exercise it.'" "[Miranda] has become embedded in routine police practice to th e point where the warnings have become part of our national culture. [While] we h ave overruled our precedents when subsequen t cases h ave u nder mined th eir doctrinal underpinnings, [we] do not believe that this h as happened to t h e Miranda decision. If anything, our sub equent cases have [reaffirmed] th e decision's core ruling that unwarned statements may not be u ed as evidence in the prosecution's case in chief." J ustice SC LI dissented, joined by Justice Thomas, di puting that Miranda h ad announced a constitu tional r ule in ligh t of prior d i ~ions th at h e read as concluding th at "it is possible [for ] the police to viol t ir nda

23

24 CHAPTER 1. THE SUPREME COURT'S AUTHORITY AND ROLE =-=-----___;:;_;=:....::...:::..:.:....;::.:.._~~~~~~~~~~~~~~=~---------

without also violating the Constitution." The dissent also took a narrow view of_the Court's decision in Marbury: "[Marbury] held that a_n Act ~f Congress will not be enforced by the courts if what it prescribes Vlolates the Constitution of the United States. [One] will search today's opinion in vain however, for a statement [that] what 18 U.S.C. § 3501 prescribes [violatesj the Constitution. [Section 3501] excludes from trial precisely what the Constitution excludes from trial, viz., compelled confessions. [And] so, to justify today's [result], the Court must adopt a significant new [principle that] statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that 'announced a constitutional rule.' [The] only thing that can possibly mean in the context of this case is that this ~ourt has the power, not merely to apply the Constitution but to expand it, imposing what it regards as useful 'prophylactic' restrictions upon Congress and the States. That is an immense and frightening antidemocratic power, and it does not exist. [By] disregarding congressional action that concededly does not violate the Constitution, the Court [arrogates] to itself prerogatives reserved to the representatives of the people." What is the role of the judiciary in relation to the legislative branch? Some commentators suggest that Marbury does not preclude a view of Congress as a co-equal protector of the Constitution: "Marshall, at least in Marbury, explicitly endorses judicial review, but he is silent on the legitimacy of legislative review and the relation between the two, and it is likely that he did not see them in conflict. It is at least a possible r eading of Marbury that Marshall decided that the courts must consult the Constitution when deciding what the ordinary law is-that being t h e special province of the judiciary-just as the legislator must consult the Cons titution when deciding what the ordinary law shall be- that, after all, being the province of the legislator." West, "Tom Paine's Constitution," 89 Va. L . Rev. 1413 (2003). Could Congress circumvent a constitutional interpretation of the Supreme Court, without necessarily overruling it? Imagine that the Court invalidates a congressional statute because it is based on an impermissible purpose. May the legislature reenact the same law, defending it on the ground that the new enactment is not t,~inted by_th~ previously ident~ed impermissible purpose? See Coen~n, A Constitut10n of Colla borat10n: Protecting Fundamental Values with Second-Look Rules of Interbranch Dialogue," 42 Wm. & Mary L. Rev. 1575, 1755 (2001). 4. Are Supreme Court interpretations binding on the executive branch? Several of the nation's presidents, including the most ve n erated, have questioned the_ fi~eli~y they must pay to judicial preceden ts interpreting the Constitut10n ma way they deemed wrong or unworka ble: a. Jefferson. Once in office, Pr~si~ent !homas Jefferson pa rdoned many convicted durin_g the Ada~s admm1strat10~ under the Sedition Act of l 798, which criminalize~ defamu~g federal officials by bringing th e m into "contempt or disrepute, and_ which had been deployed by appointees of Adam.s's Federalist ~arty ~gamst members_of ~efferson's Republican party. In a letter, he expl~med: 'You s_e~m to thmk 1t de~olv~d on th judg s to decide on the validity of the sed~tion law. But nothmg m the onsti tu tion has given them a right to decide for_ the _Executive, more th a n to the Executive to decide for the.m. Both magistracies ~re equally inde p nd nt in the spher of action assigned to them. The Judges, believing the Jaw

SECTION 3. JUDICIAL ExCLUSIVITY IN CONSTITUTIONAL lNTERPRETATIO

constitutional, had a right to pass a sentence of fine and imprisonment; because that power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the Constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch." Jefferson, Letter to Abigail Adams, Sept. 11, 1804, 8 The Writings of Thomas Jefferson 310 (Ford ed. 1897). b. Jackson . President Andrew Jackson vetoed a bill to recharter the Bank of the United States in 1832, even though the Supreme Court in 1819 had held the establishment of the Bank within the constitutional authority of Congress. His veto message explained: ''Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. [Even if] the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. [It] is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that poin~ the President is independent of both. The authority of the Supreme Cour t must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influer.f place in a world in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did. [The] document that the plurality construes today is unfamiliar to m e. It is not the living charter that I have taken to be our Constitution; it is instead a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past." After Michael H ., how much turns on the level of generality with which the relevant right and the challenged practice are described? Was this a case about parental rights or the rights of adulterous fathers? For discussion, see Tribe & Dorf, "Levels of Generality in the Definition of Rights," 57 U. Chi. L. Rev. 1057, 1087, 1090 (1990) .

SUBSTANTIVE DUE PROCESS, SEXUALITY AND HYBRID DUE PROCESS-EQUAL PROTECTIO RIGHTS

The preceding sections have discussed the applicability of substantive due process principles to two relat d subjects: reproductive and sexual autono my, and limitations on government intervention in family relationships- including certain "non-traditional" family relation hips. The question of sexual orientation implicates both of these topics. What is th scope of constitutional protection for gay, lesbian, bisexual, and tran g nd r people, both as individuals and in families? Does substantive due pro protect only n gativ lib rty- freedom from government interferenc m

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private decisions, such as consensual sexual behavior--0r does it extend to positive liberty-the freedom to participate fully in all societal institutions, including marriage and child-rearing? If it extends to positive liberty, can the right really still be described as a privacy right, or does it rest on a different value-like the notion that all people should have "equal dignity''? To what extent do due-process arguments for LGBT rights complement, or overlap, arguments based on equal protection? These questions, and the Court's responses to them, are the subject of this sub-section. Even in the decades during which the Court engaged in repeated review of contraception and abortion cases, it did not take up what might have been thought the antecedent issue of whether the Constitution protected sexual conduct itself from ome forms of state regulation. See, e.g., Hollenbaugh v. Carnegie Free Library, 439 U.S. 1052 (1978), where the Court denied a petition for certiorari from a decision upholding the discharge of two public library employee for adulterous cohabitation, over Justices Marshall's and Brennan's dissent. The Court's first consideration of the merits of a claimed right of privacy in sexual conduct occurred in Bowers v. Hardwick, 478 U.S. 186 (1986), a case involving a facial challenge to a Georgia law that defined sodomy as "committing or submitting to 'any sexual act involving the sex organs of one person and the mouth or anus of another,' " and made such an act a felony punishable by up to 20 years in prison. By a vote of 5-4, the Court upheld the statute as applied to "homosexual sodomy." Justice WHITE wrote the opinion of the Court, defining the issue narrowly as "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." He fou nd that so defined, the right was not fundamental within the meaning of the Court's precedents under the Due Process Clause: "[Pierce and Meyer] were described as dealing with child rearing and education; [Skinn er] with procreation; (Loving] with marriage; [Griswold and Eisenstadt] with contraception; and [Roe] with abortion. The latter three cases were interpreted as construing [due process] to confer a fundamental individual right to decide whether or not to beget or bear a child. Accepting the d ecision s in these cases, [we] think it evident that none of the rights announced in those cases bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy, that is asserted in this case. o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated . "Proscriptions against that conduct have ancient roots . Sodom y was a criminal offense at common law and was forbidden by the laws of the or igin al thirteen States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in t h e Union had criminal sodomy laws. In fact, until 1961, all States outlawed sodomy , and today, 24 States and the District of Columbia cont inue to provide criminal penalties for sodomy performed in private and between consentin g adults. Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious. "Nor are we inclined to take a more expansive view of our authori ty to discover new fundamental rights imbedded in the Due Process laus . Th Court is most vulnerable and comes nearest to illegitimacy when it d als

SECTION 2. SUBSTANTIVE D UE PROCESS AND P RIVACY

with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." Applying rationality review, the majority opinion upheld the law, rejecting the claim that morality alone was insufficient to provide a rational basis for a law: ''The law is constantly based on notions of morality, and if all la ws representing essentially moral choices are to be invalidated under th e Due Process Clause, the courts will be very b u sy indeed." Chief Justice BURGER filed a concurrence emphasizing that "proscriptions against sodomy have very 'ancient roots' " in "Judeo-Christian m oral and ethical standards" and "millennia of moral teaching." Justice P OWELL filed a concurrence suggesting that he might have regarded a 20year prison sentence "for a single private, consensual act of sodomy" as creating "a se rious Eighth Amendment issue" because it might amount to cru el and unusual punishment, but in view of the absence of any such prison sen tence on the r ecord in the case, found the law facially valid against substantive due process challenge. 1 In dissent, Justice BLACKMUN, joined by Justices Brennan, Marshall and Stevens, argued that the right in question had been defined too n arrowly: "[T]his case is about 'the most comprehensive of rights and the right most valued by civilized man,' namely, 'the right to be let alone.' [We] prot ect [privacy] rights not because they contribute, in some direct and material way, to t he general public welfare, but because they form so central a part of an individual's life. Only the most willful blindness could obscure the fact that sexual intimacy is 'a sensitive, key relationship of human exis tence.' [The] fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many 'right' ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an in dividual h as to choose the form and nature of these intense ly per sonal bonds. [The] Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what t h e Court really has refused to recognize is the fundamental interest all individuals h ave in controlling the nature of their intimate associations with ot h er s ." J u stice STEVENS too dissented, emphasizing that the Georgia sodomy law p rohibite d sodomy amongst all citizens, married or unmarried, heter osexual or h omosexual. If the law could not be enforced as written, he argued, a nd w as being used to target only a subset of the population, namely gay m e n , t h en th e state must justify its application of the law under heighten e d scrutin y: "A policy of selective application must be supported by a neu t r a l a nd legitimate interest-something more substantial than a habitu a l dislike for, or ignorance about, the disfavored group." Well before t h e Supreme Court revisited its holding in Bowers, the Georgia Suprem e Court invalidated its sodomy statute on state constitution a l grou nds. In Powell v. State, 510 .E.2d 18 (Ga. 1998), that court h eld t h at "th 'right to be let alone' guaranteed by the Georgia Constitu t ion is far m or extensive that the right of privacy protected by the 1 After his retirement, Justice Powell, who had cast the deciding vote in Boweni, stated that he "probably made a mis take" in voting as he did. He hnd initially voted with the majorit but c hang d h is vote. But he add d that he still regarded the decision ns ''one of little or no importance" b cause no one had actually be n prosecuted for homosexual conduct. ' ee Jeffries. Justice Lewis F . Powell, Jr. 511- 30 (1994).

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U.S. Constitution." The court continued: "Adults who withdraw from the public gaze [to] engage in private unforced sexual behavior are exercising a right 'embraced within the right of personal liberty." The Kentucky Supreme Court distinguished Bowers inn Commonwealth v. Wasson, 842 S .W.2d 487 (Ky. 1992): "[State] constitutional jurisprudence in this area is not limited by the constraints inherent in federal due process analysis. Deviate sexual intercourse conducted in private by consenting adults is not beyond the protections of the guarantees of individual liberty in our Kentucky Constitution simply because 'proscriptions against that conduct have ancient roots.' [Bowers.] Kentucky constitutional guarantees against government intrusion address sub tantive rights." The court concluded, "Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals." After Bowers, the Court did not revisit the subject of sexual orientation for almost ten years. The case that follows was the Court's next major decision on the issue, and its first time invalidating a law that discriminated against gay and lesbian people. Note, however, that the Court's opinion did not refer to Bowers, and that it did not rely on substantive due process but on the Equal Protection Clause.

Romer v. Evans 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). ■ JUSTICE KENNEDY

delivered the opinion of the Court. One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I. [An] amendment to the [Colorado Constitution] adopted in a 1992 statewide referendum [as] "Amendment 2" [stemmed] in large part from ordinances that had been passed in various Colorado municipalities, [banning] discrimination in many transactions and activities, including housing, employment, education, public accommodations, a nd health and welfare services. What gave rise to the statewide controversy was the protection the ordinanc~s aff~rded to persons discriminated against by reason of their sexual orientation. [Amendment 2), in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "'No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or dep~i::me?~s, nor any ?f its agencies, political subdivisions, muruc1pahties or school districts, shall enact, adopt or enforce any s~tute, ~egulation? ordinance or policy wher by homosexual, lesbian or bisexual orientation, conduct, practices or

SECTION

2.

SUBSTANTIVE DUE PROCESS AND PRIVACY

relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authorita tive construction of Colorado's Supreme Court: ["The] immediate objective of Amendmen t 2 is, at a minimum, to repeal existing statutes, regulations, ordina nces, and policies of state and local entities th at barred discrimination based on sexual orientation; and various provisions proh ibiting discrimination based on sexual orientation at state colleges. The 'ultimate effect' of Amendment 2 is to prohibit any gover n men tal entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." Sweeping and compreh ensive is the change in legal status effected by this law. So much is evident from the ordinances that the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from h om osexuals, but no others, specific legal protection from t h e injuries caused by discrim ~nation, and it forbids reinstatement of th ese laws and policies. The change that Amendment 2 works in the legal status of gays and lesbians in the private sphere is far-reaching, both on its own terms a nd when considere d in light of the structure and operation of modern antidis crimination laws. [Most] States have chosen to counter discrimination by e nacting de t a iled st atutory schemes. Colorado's state and municipal laws typify this e m e r gin g tradition of statutory protection and follow a consisten t patte rn. The la ws first enumerate the persons or entities subject to a duty n ot to discrimin a t e. The list goes well beyond the entities covered by the common la w . The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "an y place of business engaged in any sales to the general public and a ny place t h at offer s ser vices, facilities , privileges, or advantages to the general public or that r eceives financial support th rough solicitation of the gener al public or through governmental subsidy of any kind." [These] statu tes and ordin a n ces a lso de pa r t from the common law by enumerating the groups or per son s within their a mbit of protection. Enumeration is the essen tial device used t o m a k e t h e duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local gove rnments h ave not limited anti-discrimination laws to groups that have so far b e n give n th e protection of heightened equal protection scrutiny under our cas s. R ath r, th y set forth an extensive catalogue of trait which cann ot be th basis for discri mination , including age, military tatus. marital statu s, pregn a ncy, pa r en thood, custody of a minor child, political affiliation, physical or m e nta l disability of a n individual or of his or h r a o iate and , in r e ce nt times, s xua l orienta tion. Amendment 2 bar homo . u l ~

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from securing protection against the injuries that these publicaccommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2 [nullifies] specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. ot confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State upreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is [the] Colorado Executive Order [which] forbids employment discrimination against "'all state employees, classified and exempt' on the basis of sexual orientation." Also repealed, and now forbidden, are "various provisions prohibiting discrimination based on sexual orientation at state colleges." The repeal of these measures and the prohibition against their future reenactment demonstrates that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. At some point in the systematic administration of these laws, an official must determine whether

homosexuality is an arbitrary and thus forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. [Even] if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homose xuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by e nlisting the citizenry of Colorado to amend the state constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III. [The equal protection guarantee] must co-exist with the practical necessity that most legislation classifies for one purpose or anoth r , with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law n i ther

SECTIO

2. SUBSTANTIVE DUE PROCESS AND PRIVACY

burdens a fund amental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Amendment 2 fails, indeed defies, even this conventional inquiry. First, t h e amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuou s with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests. Taking th e first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to ascertain that there existed some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. It is not within our constitutional tradition to enact laws of this sort. [Central] both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. [Respect] for this principle explains why laws s ingling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. [A] second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f th constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a [bare] desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." [Moreno] . Even laws enacted for broad and ambitious purpos s oft n can be explained by r ference to legitimate public policies which justify the incidental disadvantage they impo e on certain p rsons. me ndment 2, however, in making a general announc ment that gays and lesbians shall not have any particular prot ction from th law, inflicts on them immediate, continuing, and real injuries that outrun and beli any legitimate justifications that may b claimed for it. conclude that, in addition to the far-reaching defici nci s of mendm nt 2

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that we have noted, the principles it offends, i~ another_ sen~e, are conventional and venerable; a law must bear a rat10nal relationship to a legitimate governmental purpose and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something [equal protection] does not permit. [We] must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates [equal protection], and the judgment of the Supreme Court of Colorado is affirmed. ■ JUSTICE CALIA, with whom CHIEF JUSTICE REHNQUIST a nd JUSTICE THOMAS join, dissenting. The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a ''bare [desire] to harm" homosexuals, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores aga1r1st the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, a re not only unimpeachable under any constitutional doctrine hitherto p r onounced (hence the opinion's heavy reliance upon principles of right eousness rather than judicial holdings); they have been specifically approved by [Congress] and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unch a llenged here, pronounced only 10 years ago, see Bowers, and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. [Since] the Constit ution of the United States says nothing about this subject, it is left to be r e solved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality is evil. [In] rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for [us]: "(I]t is significant to note that Colorado law currently proscribes discrimination against p rsons who are not suspect classes, including discrimination based on age; marital or family status; veterans' status; and for any legal, off-duty conduct such as smoking

(

I

SECTI ON

2.

SUBSTANTIVE DUE PROCESS AND PRIVACY

t.obacco. Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of antidiscrimination laws intended to protect gays, lesbians, and bisexuals." (Emphasis added.) The Court utterly fails to distinguish this portion of the Colorado court's opinion. [The] clear import of the Colorado court's conclusion [is] that "general laws a nd policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such [horribles] as the p rospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. [The] only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. [What Colorado] has done is not only unprohibited, but eminently reasonable. [The] Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity'' toward h omosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. [Colorado] not only is on e of the 25 States that have repealed their anti-sodomy laws, but was a mong the first to do so. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. [Amendment 2] is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is [an] appropriate means to that legitimate end.

THE MEANING AND IMPLICATIONS OF ROMER 1. Romer's rationale. As Chapter 9 explains in much greater detail, the Court has established three levels of review under the Equal Protection Clause for laws that treat different groups of people differently. The most demanding, known as strict scrutiny, applies to suspect classificationsdiscrimination against groups that the Court has held merit special protection , owing to their status as "discrete and insular minorities." Discrimination based on race and national origin are the paradigmatic suspect classifications. Strict scrutiny also applies when a particular group is singled out for deprivation of a fundamental right, as in kinner v. Oklahoma, p. 510, above. Strict scrutiny invalidates a government action unless it is n ecessary to a compelling government interest. The ne t standard, intermediate scrutiny, is mainly used for classification on the basis of gend er. Interm diate scrutiny requires that government action b substantially related to an important government interest. All oth r classifications ar subj ct to defer ntial "rational basis revi w," meaning

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they will be upheld if they are rationally related to some legitimate government interest. Justice Kennedy's opinion in Romer purported to rely entirely on rational basis review in striking down Amendment 2. It gave no hint of applying strict scrutiny or even intermediate scrutiny to discrimination on the basis of sexual orientation. The Court relied on an amalgam of two arguments. The first was advanced in an amicus brief by a group of law professors (Tribe, Ely, Gunther, Kurland, and Sullivan) claiming that the Colorado provision was a rare example of a literal violation of equal protection by declaring gay persons alone ineligible for protection from discrimination. The Fourteenth Amendment by its terms guarantees equal protection of the law; in choosing that language, its Framers were concerned in part that Southern officials not look the other way when lynchings and other violence affected African-Americans. The second argument on which Justice Kennedy relied was that Amendment 2 could not survive even minimum rationality review, because Colorado's justifications of protecting the associational freedom of landlords and employers and of conserving law enforcement resources could not support the over- and underinclusive means invoked by Amendment 2 and thus revealed that Amendment 2 was solely based on animosity toward gay people. Should the Court instead have declared discrimination against gay and lesbian people to be a suspect classification, or a quasi-suspect classification meriting intermediate scrutiny? Consider whether sexual orientation discrimination is analogous to race discrimination. A history of social opprobrium and legally imposed disadvantage applies in both contexts. Strict scrutiny is often justified as necessary to remedy the relative political powerlessness of "discrete and insular minorities." The closet, or socially reinforced secrecy about gay identity, has arguably imposed ?ts own form of political powerlessness by creating a minority that could be construed variously as discrete and insular or diffuse and anonymous. But might it be argued to the contrary that sexual activity, unlike skin color, is wholly within the control of individuals, and hence the analogy falters? Does a distinction between sexual orientation and sexual activity make any sense? If it did, would it matter? In only one case has any Justice ever argued that the a nalogy to race discrimination is sufficient to warrant formal heighten ed scrutiny of classifications based on sexual orientation: Justice Brennan, in a dissent from a denial of certiorari in Row land v. Mad River School District, 4 7 0 U.S. 1009 (1985), wrote: "[H]omosexuals constitute a significant and insular minority of this country's population. Because of the immediate and severe opprobrium often manifested against homosexuals once so identified publicly, members of this group are particularly powerless to pursue their rights openly in the political arena. Moreover, homosexuals have historically been the object of (pernicious and sustained hostility, and it is fair to say that discrimination against homosexuals is likely to reflect deep-seated prejudice rather than rationality.]" Would such an equal-protection argument have provided stronger grounds for the challenge in Lawrence? What of the fact that the Georgia sodomy law upheld in Bowers was facially neutral as between same-sex and opposite-sex sexual activities? 2. Alternative justifications for Romer. Some commentators have suggested broader justifications for the Court's ruling. Farber & Sherry "The Pariah Principle," 13 Const. Comment. 257 (1996), argues that the ;uling

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was justified because of the principle that "forbids the government from designating any societal group as untouchable, regardless of whether the group in question is generally entitled to some special degree of judicial protection, like blacks, or to no special protection, like left-handers (or, under current doctrine, homosexuals)." And Amar, "Attainder and Amendment 2: Romer's Rightness," 95 Mich. L. Rev. 203 (1996), argues that the text, history, and spirit of the Bill of Attainder Clause, Art. I, § 10, best justifies the majority ruling. But see Hills, "Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar's Analysis of Romer," 95 Mich. L . Rev. 236 (1996). For the view that Romer vindicated an "expressive" dimension of the Equal Protection Clause by vindicating the government's obligation to treat each person with equal concern, see Hellman, "The Expressive Dimension of Equal Protection," 85 Minn. L. Rev. 1 (2000). As Justice Scalia pointed out in dissent, the Court's opinion in Romerholding that the expression of society's disapproval of homosexuality is not a legitimate government interest-was in deep tension with Bowers. Seven years later, in another decision in which Justice Kennedy wrote the opinion of t he Court, Bowers was formally overruled. The overruling occurred in a case involving a Texas law that, unlike the Georgia law in Bowers, prohibited only sodomy between persons of the same sex. The Court found the law invalid as a restriction on the right of privacy long rooted in substantive due process: ''Bowers was not correct when it was decided, and it is not correct today. It ought not to remair, binding precedent. Bowers v. Hardwick should be and now is overruled." Justice O'Connor provided a sixth vote, concurring in the judgment on equal protection grounds without repudiating her vote with the Bowers majority.

Lawrence v. Texas 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003). ■

JUSTICE KEN EDY delivered the opinion of t he Court, in which JUSTICES

STEVE S, SOUTER, GINSBURG, and BREYER joined.

Liberty protects th e person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the horn . And there are other spheres of our lives and e xistence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involve liberty of the person both in its spatial and more transcendent dimensions. I. The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to ent r does not seem to have been questioned. The officers observed Lawrence and anoth e r man, Tyron Garner, engaging in a sexual act. The two petition rs were arrested, held in custody over night, and charged and convicted befor a Justice of the Peace [of] "deviate sexual intercourse, namely anal e., with

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a member of the same sex (man)," [under] Tex. Penal Code Ann. § 21.06(a) [which] provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object." § 21.01(1). The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. [The] petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II. We conclude the case should be resolved by determining wheth er the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourtee nth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers v. Hardwick. [The] most pertinent beginning point is our decision in Griswold. In Griswold th e Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and t h e protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. Eisenstadt. [The] opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wad e. [Both] Eisenstadt and Carey, as well as the holding and rationale in Roe, confirm ed that the reasoning of Griswold could not be confined to t he protection of rights of married adults. This was the state of the law with r espect to some of the most relevant cases when the Court considered Bowers v. H ardwick. [The] Court began its substantive discussion in Bowers as follows: ''The issue presented is whether the Federal Constitution confers a fu ndamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and h a ,,e done so for a very long time." That statement, we now conclude, discloses th e Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would de mean a married couple were it to be said marriage is simply about t he r igh t to have sexual intercourse. The laws involved in Bowers and her e a r e , to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far -reaching con seque nces, touching upon the most private human conduct, sexual beh avior , a nd in the most private of places, the home. The statutes do seek to control a p ersonal relationship that, whether or not entitled to formal recognition in the law , is within the liberty of persons to choose without being punished a s criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon t his relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds ove rt expression in intimate conduct with another person, th e conduct can be but

SECTION 2. SUBSTANTIVE DUE PROCESS AND PRIVACY

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. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers [that] counsel against adopting the definitive conclusions upon which Bowers placed such reliance. [There] is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. Thus early American sodomy laws were not directed at homosexuals as s uch but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. [Th.e] infrequency of these prosecutions [makes] it difficult to sa that society approved of a rigorous and systematic punishment of the consensual acts committ d in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of non procreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. [Far] from po sessing "ancient roots," American laws targeting same-sex couples did not develop until the last t hird of the 20th century. [It] was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine tates have done so [Arkansas, Kansas, Kentucky, Missouri, Montana, evada, Oklahoma, Tennessee, T xas]. It must b acknowl dged, of course, that the ourt in Bowers was making the broad r point that for c nturies there have been powerful voic s to condemn homosexual conduct a immoral. The condemnation ha b n s haped by r ligious b liefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and d ep convictions ace pted as ethical and moral

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principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. [In] all events we think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. [Likewise, a] committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. Parliament enacted the substance of those recommendations 10 years later. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. ~ 52 (1981). Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting [sodomy] are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed., whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. Two principal cases decided after Bowers cast its holding into even more doubt. In [Planned Parenthood v.] Casey [1992; p. 531, above), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contrace~ti~n, family relationships, child rearing, and education [involving "the] most mt1mate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." Persons in a homosexual relationship may s~e_k a~tonomy for these purposes, just as heterosexual persons do. The dec1s1on m Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans [1996; p. 556 above] . There the Court struck down class-based legislation

SECTION 2. SUBSTANTIVE DUE PROCESS AND PRIVACY

directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships." We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit th e conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, t hat declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. [The] foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment. To the extent Bowers relied on values w e share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The Europe an Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. Other nations, too, have taken action consiste nt with an affirmation of the protected right of homosexual adults to e ngage in intimate, consensual conduct. The right the petitioners seek in this case h as been accepted as an integral part of human freedom in ma n y other countries. There has been no showing that in this country the governme ntal interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal relianc on the existence of that liberty cautions with particular strength against reversing course. The holding in Bowers, however, has not induced detrimental [individual] or societal reliance [of] the sort that could counsel against overturning its h olding once there are compelling rea on to do so. Bower s itself cau ses uncertainty, for th e precedents b for and after its issuance contradict its central holding.

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The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions: "Our prior cases make two propositions abundantly clear. First, the fact that the 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. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the componen ts of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought n ecessary and proper in fact serve only to oppress. As the Constitution endures , persons in every generation can invoke its principles in their own search for greater freedom. [Reversed.] ■ JUSTICE O'CONNOR, concurring in the judgment. The Court today overrules Bowers v. Hardwick. I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. [We] have consis~1:tly held [that] some objectives, such as "a bare . .. desire to harm a politic~ll_y unpopular . group," are not legitimate state interests. When a law exhibits such a desire to harm a politically unpopular

SECTION 2. SUBSTANTIVE DUE PROCESS AND PRIVACY

group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. [The] statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Sodomy between opposite-sex partners, however, is not a crime in Texas. [The] Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct-and only that conduct-subject to criminal sanction. [And] the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else [including] in the areas of "employment, family issues, and housing." Texas attempts to justify its law, and the effects of the law, by arguing that t he statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. [This] case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. Whether a sodomy law that is neutral both in effect and application would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. ■ JUSTICE S CALIA, with whom CHIEF JUSTICE REH QUIST and J USTICE THOMAS join, dissenting. [Countless] judicial decisions and legislative enactments have relied on t he ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" conshtutes a rational basis for regulation . [State] laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are [sustainable] only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision. [Section § 21.06(a)] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "lib erty'' under the Due Process Clause, though today's opinion repeatedly makes that claim. The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process oflaw" i provided . Our opinions applying the doctrine known as "substantive due process" hold that th e Due Process Clause prohibits States from infringing fu ndamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly, in case the Court today does not overrule, that only fundamental rights qualify for thi so-called "h ightened scrutiny" protection- that is, rights which ar 'd pl rooted in this Nation's history a nd tradition.'"

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[Homosexual] sodomy is not a right "deeply rooted in our Nation's history and tradition." (An] "emerging awareness" is bY_ de~nition nt "deeply rooted in this Nation's history and tradition[s]." Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Court's discussion of [foreign] views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court . . . should not impose foreign moods, fads, or fashions on Americans." [The] contention that there is no rational basis for the law here under attack [is] so out of accord with our jurisprudence-indeed, with the jurisprudence of any society we know-that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable"-the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. [This] effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. [Today's] opinion is the product of a Court, which is the product of a lawprofession culture, that has largely signed on to the so-called ho mosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. [It is clear] that the Court has take n sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. [Let] me be clear that I have nothing against homosexu als, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. [But] it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste Lhat knows best. ■ JUSTICE THOMAS, dissenting. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold [(Stewart J., dissenting)] . If I were a memb r of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petition r s and others similarly situate~ [a~] I "can find [n~ither in ~he Bill of Rights nor any oth r part of the Constitution a] general right of privacy," or as th ourt terms it today, the "liberty of the person both in its spatial and more transcendent dimensions."

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THE MEANING AND IMPLICATIONS OF LAWRENCE l. The standard of scrutiny in Lawrence. Was the decision in Lawr ence a logical extension of t h e privacy r ights recognized in Griswold, Eis e nstadt, Roe, Carey , a nd Casey, correcting a deviation from that logic in Bow ers? Or did Lawrence t ake a broa der view of the liberty interest at stake t h a n had been taken in earlier d ecisions? Consider the view that "[p]art of the Court's response was simply to r atchet up the level of generality at which the liberty interest was described: rather than h aving a constitutional right to e ngage in oral or anal sex, individuals have a constitutionally protected interest in creating a 'personal relationship' in which 'sexuality finds overt expression in intimate con duct with another person.'" Karlan, ''The Boundaries of Liberty After Lawrence v. Texas- Foreword: Loving L awrence," 102 Mich. L . Rev. 1447 (2004). If that is so, then what are the i mplications of Lawren ce for challenges to laws that continue to criminalize s uch private sexual practices as adultery, fornication, incest or bigamy? Was t h e singling out of gay oral or anal sexual conduct important to the result in L awrence? Or if gay sex is protected against criminalization, is heterosexual sexual conduct likewise, by necessary implication, broadly protected from legal prohibition? The New Jersey Supreme Court held so as early as 1977, writing that "the conduct statutorily defined as fornication involves, by its ver y nature, a fundamental personal choice. Thus, the statute [barring fornication] infringes upon the right of privacy." State v. Saunders, 381 A.2d 3 33 (N.J . 1977); accord State v. Pilcher, 242 N.W.2d 348 (Iowa 1976). What was the standard of scrutiny employed in Lawrence? Justice Kennedy never specifies one. Di.d the Court, in holding that the Texas law "furt hers no legiti m ate state mterest which can justify its intrusion into the personal and private life of the individual," simply strike down the Texas sodomy law under rational basis review, as Justice Scalia suggests disapprovingly in dissent? Or does the clause suggest heightened scrutiny a nd t h e lack of a su fficiently weighty interest to justify such an intrusion? Con sid er t h e view th at, despite the lack of formulaic language, the Court must have b een applying a form of strict scrutiny: "[The] strictness of the Court's standa rd in Lawrence, however articulated, could hardly have been more obvious . T o search for the magic words proclaiming the right protected in Lawre n ce to b e 'fundamental,' and to assume that in the absence of those word s m er e r ation ality review applied, is to universalize what is in fact only an occasiona l practice. Moreover, it requires overlooking passage after passage in which th e Court's opinion indeed invoked the talismanic verbal formula of s ubstan tive due process." Tribe, "Lawrence v. Texas: The 'Fund a m e n tal R igh t' that Dare Not Speak Its ame," 117 Harv. L. Rev. 1893 (200 4). After Lawren ce, is it necessary to demonstrate that a law infringes upon a "funda m e ntal r igh t" in order to win a claim under substantive due proce s? Justice Sca lia noted in dissent that "nowhere does the Court's opinion declar e t h at homosexu al sodomy is a 'fundamental right' under the Due Process Cla u s ." Did Lawrence announce a new, general presumption of liberty? I s a showing t h at a law i mplicates any aspect of liberty sufficient to shift t h e burden to th government to justify t he law? onsider the vi w that "Law ren ce ignores [a ny] sh arp bifurcation between 'fundamental' lib rty

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interests and other liberty interests. It instead focuses on the particular liberty interests endangered by the Texas statute, savoring their unique valence and exploring their particular significance." Post, "The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law," 117 Harv. L. Rev. 4 (2003). For an argument that the Court should abandon any effort to "distinguish[] those liberties that merit enhanced protection from those that do not," and should instead enforce a rebuttable presumption of liberty against all police power regulations, see Barnett, "Scrutiny Land," 106 Mich. L. Rev. 1479 (2008). 2. Due process vs. equal protection for claims of gay rights. Why did the Court use the Due Process Clause as the basis for striking down the Texas same-sex sodomy law, instead of the Equal Protection Clause, as in Romer? Justice O'Connor declined to repudiate her own vote with the majority in Bowers, opining in her concurrence that the Texas law, which targeted only same-sex sodomy, was properly reviewed under an equal protection analysis. But Justice Kennedy expressed concern that, should the law be struck down on that basis, the Texas legislature could simply reenact the law to prohibit all sodomy. Was this a realistic likelihood? Would the majority of Texas citizens support a law banning all sodomy, even in the context of heterosexual married couples, if the law was truly going to be enforced uniformly across the population? Would they be likely to support such a law only if they knew it would be enforced primarily or exclusively against gay people? Would this type of disparate enforcement present its own equal protection violation? Recall Justice Stevens's dissent in Bowers. If Lawrence had been decided before Romer, how would the analysis in Romer have changed? The level of generality of the Lawrence right is, once again, a key inquiry here. If Lawrence established a fundamental right to engage in intimate personal relationships regardless of sexual orientation, then do all classifications on the basis of sexuality trigger strict scrutiny, the most difficult equal protection standard of review to satisfy? Could judicial nervousness regarding the far-reaching implications of such a decision explain the Lawrence Court's decision to employ substantive due process and to forego equal protection analysis? The comparison of due process and equal protection, as a source of rights for gay and lesbian people, also turns on how sexual orientation is defined . Is sexual orientation predictive of conduct that should be protect ed from invasion under the Due Process Clause, or a status that should be protected against discrimination under the Equal Protection Clause? Cons ide r the view that "[t]he situation of gay people provokes an 'analogical crisis,' because in some ways it involves regulation of particular acts in which gay people engage, and so seems most amenable to analysis under the liberty prong of the due process clause, while in other ways it involves r egulation of a group of people who are defined not so much by what they do in the privacy of their bedrooms, but by who they are in the public sphere. [Homosexuality] straddles the line between conduct and status in ways that make it hard to apply conventional constitutional doctrine." Karlan, "Loving Lawrence," 102 Mich. L. Rev. 1447 (2004). See also Sunstein, "Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection," 55 U. Chi. L. Rev. 1161 (1988). Alternatively, does the question of due process versus equal protection present a false dichotomy? The Court's opinion in Lawrence may reflect a recognition by Justice Kennedy that a narrow decision und r th Equal

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Protection Clause would have been inadequate without a substantive due process dimension, and that the two strands were intertwined like a double helix. Consider the view that "Lawrence, more than any other decision in the Supreme Court's history, both presupposed and advanced an explicitly equality-based and relationally situated theory of substantive liberty. The 'liberty' of which the Court spoke was as much about equal dignity and respect as it was about freedom of action- more so, in fact. And the Court left no doubt that it was protecting the equal liberty and dignity not of atomistic individuals torn from their social contexts, but of people as they relate to, and interact with, one another. [Because] the Bowers judgment and opinion (and their consequences) contributed to social and cultural construction of stigmatized gay and lesbian identities, the 'baby step' of holding the Texas ban on same-sex sodomy unconstitutional on purportedly narrower equal protection grounds, though logically available to the Lawrence Court, would have been woefully inadequate with respect to the twin constitutional commitments of equal respect and equal dignity." Tribe, "Lawrence v . Texas: The 'Fundamental Right' that Dare Not Speak Its ame," 117 Harv. L. Rev. 1893 (2004). In both Romer and Lawrence, Justice Kennedy avoided the application of the conventional tiers of scrutiny, purporting to apply deferential standards of review while finding that the laws could not survive. Was the avoidance of the tiers of scrutiny simply a result of the thorny issues surrounding sexual orientation? Was it because both opinions shared the same author? Did it turn on the fact that sodomy laws had slipped into desuetude? See Sunstein, "Liberty After Lawrence," 65 Ohio St. L.J. 1059 (2004). 3 . Lawrence and stare decisis. Justice Kennedy, the author of Lawrence, had no difficulty overruling the 17-year old decision in Bowers v. Hardwick, yet joined the joint opinion in Casey expressly declining to overrule Roe v. Wade. Can Lawrence's approach to stare decisis be reconciled with Casey's? Justice Scalia's dissent in Lawrence criticized the majority for inconsistency, suggesting that Roe and Casey had generated the same grounds for overrule that the Lawrence majority cited with respect to Bowers, including sustained public criticism, and that there was at least as much reason to uphold Bowers as to uphold Roe, including the long reliance society had had on morals laws. Can Roe and Bowers be persuasively distinguished with respect to their force as precedents? 4. Use of comparat ive constitutional law. Justice Kennedy's opinion in Lawrence, for the first time in a Supreme Court majority opinion, cited with approval an a uthority from European law. Twice in his opinion, Justice Kennedy referre d to a decision by the European Court of Human Rights to protect private, consensual gay sexual conduct. In Dudgeon v. United Kingdom, 45 Eur. Ct. H .R. (1981), the European court held that laws penalizing homosexual conduct were invalid under the European Convention on Human Rights, and the decision became binding on all nations that are members of the Council of Europe. According to Justice Kennedy, it was i mportant to take judicial notic of the laws throughout the larger We tern civilization of which the United States is a part because there was nothing to s uggest that the governmental interest in proscribing such conduct wa more compelling in this country than in the others. This was not th first tim in recent years that the Court was influen d by comparison to foreign judicial opinions. In Atkins v. Virginia, 536 U . .

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304 (2002), a case reviewing the Eighth Amendment implications of executing convicted criminal defendants who are mentally retarded, the Court cited in a footnote an amicus brief by the European Union, stating that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." Similarly, in a 2003 television interview Justice Breyer stated that he "see[s] all the time how the world really-it's trite but it's true-is growing together. Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it's becoming more and more one world of many different kinds of people. And how they're going to live together across the world will be the challenge, and [how] our Constitution fits into the governing documents of other nations, I think will be a challenge for the next generations." Justice O'Connor has also been quoted as saying that "over time [the Court] will rely increasingly, or take notice at least increasingly, on international and foreign courts in examining domestic issues." Is the U.S. Supreme Court now engaged in a desirable trend toward taking into account other nations' decisions on the scope of human rights? Is the Court justifiably worried about the United States being an outlier in Western civilization? Should such concern carry over to other areas in which the United States is already an outlier, such as the death penalty and firearms regulation? Or should Americans be concerned, as Justice Scalia suggested in his Lawrence dissent, that the U.S. Constitution not be subverted by "foreign moods, fads, or fashions"? For the view that "[l]ooking beyond our borders came naturally to the Framers," and that Justice Kennedy was "clearly right that homosexual sodomy laws violate the modern understanding of human rights" as found by several foreign courts and other "respected international bodies," see Farber, "Constitutional Cadenzas," 56 Drake L. Rev. 833 (2008). 5. Lawrence and same-sex marriage. In Lawrence, Justice Kennedy pointedly noted that its decision invalidating a same-sex sodomy law on due process grounds "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Justice Scalia's dissent in Lawrence, however, warned that state laws against same-sex marriage were "called into question by today's decision." Indeed, just five months after Lawrence was handed down, the Supreme Judicial Court of Massachusetts held that the state's limitation of marriage to that between a man and a woman violated both the Due Process and Equal Protection Clauses of the state constitution, making Massachusetts the first state in the nation with legal same-sex marriage. Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Goodridge affirmed that "(whether] and whom to marry, how to express sexual intimacy, and whether and how to establish a family [are] among the most basic of every individual's liberty and due process rights," citing both Lawrence and Casey. Ten more states, plus the District of Columbia, followed over the next ten years, legalizing same-sex marriage via legislation, court ruling, or statewide referendum. Consider whether there was something in particular about state courts that made them more receptive more quickly to these kinds of dignitary arguments for marriage equality. Professor William Rubenstein posited, long before the movement for same-sex marriage, that despite the general preference for federal court in civil rights litigation, state courts were for three reasons more promising sites for gay and lesbian activism : technical competence in family law and other related issues, greater familiarity with

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lesbian and gay people through run-of-the-mill legal and real-world encounters, and faster-acting majoritarian pressures. See Rubenstein, "The Myth of Superiority," 16 Const. Comment. 599 (1999). To what extent were these arguments borne out by subsequent developments? Even in those states that recognized same-sex marriage, gay and lesbian couples faced a legal obstacle put in place by the federal government. In 1996, Congress had enacted, and President Clinton signed, the "Defense of Marriage Act" (DOMA) , which defined marriage, for the purpose of all fe deral benefits, as "only a legal union between one man and one woman as h usband and wife." After two federal courts of appeals invalidated this definition on equal protection grounds, the Supreme Court agreed to take up the question of DOMA's constitutionality, and invalidated its marriage definition under the equal protection principles that had long been found implicit as applicable to the federal government under the Due Process Clause of the 5th Amendment. See Bolling v. Sharpe [p. 663 below) .

United States v. Windsor 570 U.S. 744, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013). ■ JUSTICE KENNEDY delivered the opinion of the Court, in which JUSTICES GI SBURG, BREYER, SOTOMAYOR. and KAGAN joined. [In] 1996, as some State~ were beginning to consider the concept of same-sex marriage, and before any State had acted to permit it, Congress enacted the Defense of Marriage Act (DOMA). [Section) 3 ofDOMA provides as follows: "In determining the r..1eaning of any Act of Congress, or of any ruling, regulation, or interpr2t:.:t10n of the various administrative bureaus and agencies of the United StHtes, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." The definitional provision does not by its terms forbid States from enacting laws permitting same-sex marriages or civil unions or providing state benefits to residents in that status. The enactment's comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms, however, does control over 1,000 federal laws in which marital or spousal status is addressed as a matter of fed eral law. Edith Windsor and Thea Spyer met in ew York City in 1963 and began a long-term relationship. Windsor and Spyer registered as domestic partners when ew York City gave that right to same-sex couples in 1993. Concerned about Spyer's health, the couple made the 2007 trip to Canada for their marriage, but they continued to reside in ew York City. The State of New York deems their Ontario marriage to be a valid one. Spyer died in February 2009, and left h er entire estate to Windsor. Because DOMA denies federal recognition to same-sex spouses, Windsor did not qualify for the marital exemption from the federal estate tax, which excludes from taxation "any interest in property which passes or has passed from the decedent to hi s urviving s pouse." 26 U .S.C. § 2056(a). Windsor paid $363,053 in estat taxes and sought a refund. The Internal Revenue Service denied the refund, concluding that, under DOMA, Windsor was not a "surviving spous ." Windsor commenced this refund suit. She contended that DOMA violat the

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guarantee of equal protection, as applied to the Federal Government through the Fifth Amendment. III. [Until] recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought ofby most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in ew York and certain other States as an unjust exclusion. Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride ::n themselves and their union and in a status of equality with all other married persons. [By] history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States. Yet it is further established that Congress, in enacting discrete statutes, can make determinations that bear on marital rights and privileges. Though [other federal stat utes] establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect. [The] recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. The definition of marriage is the foundation of the State's broader authority to regulate the subject of domestic relations with respect to the "[protection] of offspring, property interests, and the enforcement of marital responsibilities." "(The] states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce." Haddock v. Haddock, 201 U.S. 562 (1 906). [The] Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the t deral balance. The State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. H re th State's decision to give this class of persons the right to marry conferr d upon

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them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage. [New York's] actions were without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended. [The] States' interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits. Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ''but one element in a personal bond that is more e nduring." [Lawrence.] By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing samesex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community's considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. IV. DOMA seeks to injure the very class ew York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of t hat group. Department of Agl'iculture v. Moreno, [p . 651 below]. In determining whether a law is motived by an improper animus or purpose, "'[discriminations] of an unusual character' " especially require careful consideration . [Romer.] DOMi\ cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the tate's classifications have in the daily lives and customs of its people. DOMA's unusual d eviation from the u sual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same- ex marriages made lawful by the unquestioned authority of the States. The history of DOML\'s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in th e exercise of their sovereign power, wa mor t han an incid ntal effect of the federal statute. It was its essence. Th Haus Report announced its conclusion that "it is both appropriate and nee ar for ongress to do what it can to defend the institution of traditional heterosexual marriag . [Th ] effort to redefin 'marriag ' to e. tend to homosexual couples is a truly r a dical proposal that would funrlam nt 11

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alter the institution of marriage." The House concluded that DOMA expresses ''both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially JudeoChristian) morality." The stated purpose of the law was to promote an "interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws." Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage. [DOMA's] operation in practice confirms this purpose. [DOMA's] principal purpose is to impose inequality, not for other reasons like governmental efficiency. [By] creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the tate has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code's special protections for domestic-support obligations. It forces them to follow a complicated procedure to file their state and federal taxes jointly. It prohibits them from being buried together in veterans' cemeteries. For certain married couples, DOMA's unequal effects are even more serious. The federal penal code makes it a crime to "assaul[t], kidna[p], or murde[r] ... a member of the immediate family" of "a United States official, a United States judge, [or] a Federal law enforcement officer," with the intent to influence or retaliate against that official. Although a "spouse" qualifies as a member of the officer's "immediate family," DOMA makes this protection inapplicable to same-sex spouses. DOMA a lso brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses. And it denies or reduces benefi ts allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security. [The] class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. [The] federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons a s living in marriages less respected than others, the federal statute is in violation of th Fifth

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Amendment. This opinion and its holding are confined to those lawful marriages. ■

CHIEF JUSTICE ROBERTS, dissenting. [Interests] in uniformity and stability amply justified Congress's decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something-as the majority puts it-"thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization." That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising-and hardly enough to support a conclusion that the "principal purpose" of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act's principal purpose was to codify malice, and that it furt hered no legitimate government interests, I would not tar the political bra:1ches with the brush of bigotry. But while I disagree with the result to which the majority's analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ''historic and essentia1 a u thority to define the marital relation" may continue to utilize the traditional definition of marriage. [The] dominant the me of the majority opinion is that the Federal Government's intrusion into an area "central to state domestic relations law applicable to its residents and citizens" is s ufficiently "unusual" to set off alarm bells. I think the majority goes off course, as I have said, but it is undeniable that its j udgment is based on fed eralism. ■ JUSTICE S CALIA, with whom J USTICE THOMA joins, and with whom CHIEF JUSTICE ROBERTS joins as to Pa r t I [on the issue of justiciability; seep. 36, above], dissenting. II. [There] are many remarkable things about the majority's merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with [discussion of] the traditional power of States to define domestic relations- initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that "it is unn cessary to decide whether this federal intrusion on state power is a violation of the Constitution," and that "[the] State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism" because "the tate's decision to give this class of persons the right to marry conferr d upon them a dignity and status of immense import." [Equally] p rplexing are the opinion's r ferences to "the onstitution's guarantee of equality." [If] this is meant to be an equal~protection opinion, it is a confusing on . Th opinion does not resolve and mdeed doe not en mention what had be n the central question in this litigation: wh th r ,

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under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. [In] accord with my previously expressed skepticism about the Court's "tiers of scrutiny'' approach, I would review this classification only for its rationality. [The] majority never utters the dread words "substantive due process," perhaps sensing the disrepute into which that doctrine has fallen . [The] opinion does not argue that same-sex marriage is "deeply rooted in this Nation's history and tradition," a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of " 'ordered liberty.'" [As] I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. [The] Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral disapproval of same-sex marriage (or indeed samesex sex), there are many perfectly valid-indeed, downright boringjustifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court's conclusion that only those with hateful hearts could have voted "aye" on this Act. And more importantly, they serve to make the contents of the legislators' hearts quite irrelevant. [To] choose just one of these defenders' arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. [DOMA] avoided [uncertainty] by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision. Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. [That] is not animus-just stabilizing prudence. The penultimate sentence of the majority's opinion is a naked declaration that "[this] opinion and its holding are confined" to those couples "joined in same-sex marriages made lawful by the State." [In] my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. [By] formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. [That] is why the language is there. The result will be a judicial distortion of our society's debate over marriage- a debate that can seem in need of our clumsy ''help" only to a member of this institution. [We] might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide . ■ JUSTICE ALITO, with whom JUSTICE THOMAS joins as to Parts II and III, dissenting. II. [The] family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage- for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage-have had far-reaching consequences. But the process by which such consequences come about is complex, involving the

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interaction of numerous factors, and tends to occur over an extended period of time. We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. At present, no one-including social scientists, philosophers, and historians~an predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. [But] the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials. III. By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court r esolve a debate between two competing views of marriage. The first and older view, which I will call the "traditional" or "conjugal" view, sees marriage as an intrinsically opposite-sex institution. BLAG notes that virtually every culture, including many not influenced by the Abrahamic religions, has limited marriage to people of the opposite sex. [And] BLAG attempts to explain this phenomenon by arguing that the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing. Others explain the basis for the inst itut1on in more philosophical terms. They argue t hat marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intn.-....;ically ordered to producing new life, even if it does not always do so. While raodern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship. The other, n ewer view is what I will call the "consent-based" vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment- marked by strong emotional attachment and sexual attraction- between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the j_nstitution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination. The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted). The silence of the Constitution on this question should be nough to end the matter as far as the judiciary i concerned . Yet, Windsor and the United tates implicitly ask us to endor t he consent-bas d view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologian ar b tt r qualified to explore. B cause our constitutional order assigns th r olution

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of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.

THE MEANING AND IMPLICATIO S OF WINDSOR

Windsor's rationale. The Court's reasoning in Windsor rested on the fact that DOMA established separate and unequal federal treatment of couples that the tate had chosen to treat alike. Why, then, did Justice Kennedy not ba e hi analysis on equal protection alone? Would the principle the Court quoted from earlier equal protection decisions-that "a bare congressional desire to harm a politically unpopular group" cannot justify unequal treatment-have sufficed by itself to strike down DOMA's federal definition of marriage? Is it possible that the majority found some of the alternative justifications cited by the dissents and DOMA's defenders-such as the federal interest in uniform rules and the need to avoid complicated choice-of-law problems-reasonable enough to satisfy minimum rationality review? Perhap the idea that substantive due process protects dignity, not just privacy, rendered the traditional levels-of-scrutiny analysis inapplicable. The idea that the Constitution upholds a fundamental right to dignity implies that this right is held by all people equally; therefore, any statute that works a deprivation of dignity also infringes equality. If this is so, could the Court have based the decision in Windsor on substantive due process alone? Was the opinion's inclusion of equal protection language an attempt to cabin the Court's holding and provide a limiting principle, leaving existing state bans on same-sex marriage unaffected? If stigmatizing same-sex relationships constitutes a deprivation of dignity, would a gradual approach, allowing state laws with the same effect to remain in place, have been consistent with this underlying premise? 2. Lawrence and Windsor: differing conceptions of dignity. Both Lawrence and Windsor cited individual dignity as a primary justification for striking down laws that burden gay and lesbian people, but the visions of dignity advanced by the two opinions differ in key respects. Lawrence conceptualized dignity as inherent in the individual, and explained that restricting a person's choice of sexual partner constitutes an invasion of that right by the state. Windsor, by contrast, understood dignity as a status conferred by the state on particular relationships; DOMA thus infringed a dignity interest that the state had created. Can these two definitions of dignity coexist? If the protection of equal dignity is a new constitutional principle-of the sort that typically develops gradually through multiple judicial decisions-is it necessary that t he principle present perfect coherence right away? As you read the opinion in Obe rgefell v. Hodges, p. 583 below, recognizing a nationwide right to same-sex marriage even in states that do not _choose to recognize such marriages, consider whether the Court adopted either Lawrence's or Windsor's idea of dignity, or whether it found a way to accommodate both. 1.

3. Windsor and federalism . To what extent was Windsor's invocation of federalism principles relevant to the outcome? If DOMA deprived same-sex couples ~f ~gn_ity ~nd the equal protection of th laws, does it matter whether the discr1mmation occurred in an area oflaw that th

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SECTION 2. SUBSTANTIVE DUE PROCESS AND PRIVACY

states had traditionally regulated? Imagine that DOMA had included a provision specifically excluding sexual-orientation discrimination from the coverage of federal civil rights statutes. Would the lack of a tradition leaving such matters exclusively to the states have rendered this provision less vulnerable to Fifth Amendment-based equal protection challenge? Windsor might be read as establishing a form of heightened equal protection scrutiny for laws that impinge on an area of law that has traditionally been reserved to the states. The Court once maintained that the Tenth Amendment outright forbade federal interference with the states' performance of "traditional governmental functions," but overruled that decision, see pp. 169-170, above, in part because of the difficulty of defining what should be considered "traditional governmental functions." Does Windsor present similar line-drawing problems? Could federal tort-reform legislation, capping punitive damages in some types of cases but not others, be challenged on the grounds that tort law has traditionally been reserved to the states? Or does domestic relations law have a unique status? The fact that federal courts abstain from family-law cases, even when they could properly be heard under diversity jurisdiction, supports the latter view. 4. Windsor and state r ecognition of same-sex marriage. The trend of expanding recognition of same-sex marriage that had begun in the years following Lawrence accelerated after Windsor. By the end of 2014, four federal courts of appeals had invalidated the state same-sex marriage bans within their jurisdiction. A contrary decision in the Sixth Circuit, upholding bans in four states, created a split in the circuits, and opened the way for the Supreme Court to determine, once and for all, whether the Constitution confers on same-sex couples a right of access to the institution of marriage. Justice Kennedy spoke for the Court once again in the following opinion:

Obergefell v. Hodges 576 U.S. _, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). ■ JUSTICE KE EDY delivered the opinion of the Court, in which J USTICES GI SBURG, BREYER, SOTOMAYOR and KAGAN joined. The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their id ntity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms a nd conditions as marriages between persons of the opposite sex. [From] their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to th ir station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

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The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. [There] are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world. The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment. [The] ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time. For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a volun tary contract between a man and a woman. As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, maledominatedlegal entity. As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. [These] new insights have strengthened, not weakened, the institution of marriage. (The] Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia (1967; 672 above), [a] unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men ." [Over] time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. It cannot be denied that this Court's cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. [Still, t]his Court's cases have expressed constitutional principl s of broader reach. [And] in assessing whether the force and rational of its cas s apply to same-sex couples, the Court must respect the basic reasons why th

SECTION 2. SUBSTANTIVE DUE PROCESS AND PRIVACY

right to marry has been long protected. This analysis compels the conclusion t hat same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. [The] nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. [Griswold.] [Marriage] responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other. [While] Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward , but it does not achieve the full promise of liberty. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. [As] all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. Most States have allowed gays a nd lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. [Fourth] and finally, this Court's cases and the ation's traditions mak clear that marriage is a keystone of our social order. [For] that r a on, ju t as a couple vows to support ach other, so do s society pledge to upport th couple, offering symbolic recognition and material benefits to prot t and nourish th union. Ind d , whil the tates are in g neral fr e to var th benefits th y conf r on a ll married couples, they have throughout our hi tor

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made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. [There] is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. [It] demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning. [The] right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more