AMERICAN CONSTITUTIONAL LAW VOLUME II FOURTH EDITION CIVIL RIGHTS AND LIBERTIES OTIS H STEPHENS, JR University of Tennessee, Knoxville JOHN M SCHEB II University of Tennessee, Knoxville Australia • Canada • Mexico • Singapore • Spain United Kingdom •United States American Constitutional Law Volume II: Civil Rights and Liberties, Fourth Edition Otis H Stephens, Jr., and John M Scheb II Publisher: Michael Rosenberg Managing Development Editor: Karen Judd Developmental Editor: Rebecca Green Assistant Editor: Christine Halsey Editorial Assistant: Megan Garvey Technology Project Manager: Yevgeny Ioffe Marketing Manager: Karin Sandberg Marketing Assistant: Kathleen Tosiello Marketing Communications Manager: Heather Baxley Project Manager, Editorial Production: Matt Ballantyne Creative Director: Rob Hugel Art Director: Maria Epes Print Buyer: Linda Hsu Permissions Editor: Bob Kauser Production Service: Laura Houston, Pre-PressPMG Photo Researcher: PrePressPMG Cover Designer: Lee Anne Dollison 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submit a request online at http://www.thomsonrights.com Any additional questions about permissions can be submitted by e-mail to thomsonrights@thomson.com ABOUT THE AUTHORS Otis H Stephens, Jr., is Alumni Distinguished Service Professor of Political Science and Resident Scholar of Constitutional Law in the College of Law at the University of Tennessee He holds a Ph.D in political science from Johns Hopkins University and a J.D from the University of Tennessee Professor Stephens is the author of The Supreme Court and Confessions of Guilt (1973); he is coauthor, with Gregory J Rathjen, of The Supreme Court and the Allocation of Constitutional Power, with Richard A Glenn, of Unreasonable Searches and Seizures: Rights and Liberties under the Law (2006), and with John M Scheb II, of American Constitutional Law: Essays and Cases (1988) He has contributed chapters to Comparative Human Rights (1976), The Reagan Administration and Human Rights (1985), and American National Security and Civil Liberties in an Era of Terrorism (2004) He has also authored or coauthored a number of articles in professional journals, including the Georgetown Law Journal, the Journal of Public Law, the Tennessee Law Review, the Widener Journal of Public Law, the Southeastern Political Review, and the Criminal Law Bulletin Professor Stephens is also co-editor, along with John M Scheb II and Kara E Stooksbury, of An Encyclopedia of American Civil Rights and Liberties (2006) Professor Stephens teaches courses in constitutional law, Supreme Court decision making, law and public policy, and jurisprudence in the UT College of Law Dr Stephens is also a member of the Tennessee Bar John M Scheb II is Professor of Political Science and Chair of the Legal Studies Program at the University of Tennessee, where he teaches graduate and undergraduate courses in American government, constitutional law, civil rights and liberties, administrative law, criminal law and procedure, the judicial process, and law in American society Professor Scheb received his Ph.D from the University of Florida in 1982 He has authored or coauthored numerous articles in professional journals, including the Journal of Politics, American Politics Quarterly, Political Research Quarterly, Law and Policy, Judicature, State and Local Government Review, Social Science Quarterly, Political Behavior, Southeastern Political Review, and the Tennessee Law Review Professor Scheb has also coauthored six other textbooks: American Constitutional iii iv ABOUT THE AUTHORS Law: Essays and Cases (1988), with Otis H Stephens, Jr.; An Introduction to the American Legal System (2002), with Judge John M Scheb; Government and Politics in Tennessee (2002), with William Lyons and Billy Stair; Criminal Law and Procedure, 5th edition (2005), with Judge John M Scheb; Law and the Administrative Process (2005), also with Judge John M Scheb; and American Government: Politics and Political Culture, 4th edition (2006), with William Lyons Most recently Professor Scheb co-edited, along with Otis H Stephens, Jr., and Kara E Stooksbury, An Encyclopedia of American Civil Rights and Liberties (2006) CONTENTS Preface Chapter Constitutional Sources of Civil Rights and Liberties Introduction Rights Recognized in the Original Constitution The Bill of Rights The Thirteenth Amendment The Fourteenth Amendment The Nationalization of the Bill of Rights Amendments Protecting Voting Rights Standards of Review in Civil Rights and Liberties Cases The Importance of State Constitutions Conclusion Key Terms For Further Reading Ex Parte Milligan (1866) The Slaughterhouse Cases (1873) The Civil Rights Cases (1883) Shelley v Kraemer (1948) Jones v Alfred H Mayer Co (1968) DeShaney v Winnebago Social Services (1989) Barron v Baltimore (1833) Hurtado v California (1884) Chicago, Burlington, & Quincy Railroad Company v Chicago (1897) Palko v Connecticut (1937) Adamson v California (1947) Rochin v California (1952) Duncan v Louisiana (1968) Chapter Property Rights and Economic Freedom Introduction The Contracts Clause The Rise and Fall of Economic Due Process Equal Protection and Economic Regulation Property Rights and the “Takings” Issue Conclusion Key Terms For Further Reading Dartmouth College v Woodward (1819) Charles River Bridge Company v Warren Bridge Company (1837) ix 3 16 17 22 25 28 29 30 30 31 31 34 38 42 44 47 50 51 53 54 56 60 62 67 68 70 73 82 83 87 88 89 89 91 Home Building and Loan Association v Blaisdell (1934) Munn v Illinois (1877) Lochner v New York (1905) Adkins v Children’s Hospital (1923) West Coast Hotel Company v Parrish (1937) Ferguson v Skrupa (1963) Hawaii Housing Authority v Midkiff (1984) Kelo v City of New London (2005) Chapter Expressive Freedom and the First Amendment Introduction Interpretive Foundations of Expressive Freedom The Prohibition of Prior Restraint The Clear and Present Danger Doctrine Fighting Words, Hate Speech, and Profanity Symbolic Speech and Expressive Conduct Defamation The Intractable Obscenity Problem Expressive Activities in the Public Forum Electronic Media and the First Amendment Commercial Speech First Amendment Rights of Public Employees and Beneficiaries Freedom of Association Conclusion Key Terms For Further Reading Near v Minnesota (1931) New York Times Company v United States (1971) Schenck v United States (1919) Brandenburg v Ohio (1969) Cohen v California (1971) Texas v Johnson (1989) Virginia v Black (2003) New York Times Company v Sullivan (1964) Hustler Magazine v Falwell (1988) Miller v California (1973) Federal Communications Commission v Pacifica Foundation (1978) Reno v American Civil Liberties Union (1997) 94 97 100 104 108 111 112 114 122 123 123 125 128 133 136 139 142 145 149 151 154 157 160 160 160 161 163 168 169 170 173 177 180 183 186 188 191 v vi CONTENTS Edwards v South Carolina (1963) Adderley v Florida (1966) Lorillard Tobacco Company v Reilly (2001) National Endowment for the Arts v Finley (1988) Boy Scouts of America v Dale (2000) Chapter Religious Liberty and Church– State Relations Introduction Religious Belief and the Right to Proselytize Unconventional Religious Practices Patriotic Rituals and Civic Duties Freedom of Religion Versus Parens Patriae The Wall of Separation between Church and State Religion and Public Education Governmental Affirmations of Religious Belief The Problem of Tax Exemptions Tuition Tax Credits Conclusion Key Terms For Further Reading West Virginia State Board of Education v Barnette (1943) Wisconsin v Yoder (1972) Employment Division v Smith (1990) Church of the Lukumi Babalu Aye, Inc v City of Hialeah (1993) Everson v Board of Education (1947) Abington School District v Schempp (1963) Wallace v Jaffree (1985) Santa Fe Independent School District v Doe (2000) Edwards v Aguillard (1987) Agostini v Felton Marsh v Chambers (1983) McCreary County v ACLU (2005) Van Orden v Perry (2005) Walz v Tax Commission (1970) Zelman v Simmons-Harris (2002) 194 196 199 201 204 209 210 212 213 218 220 221 223 229 231 233 234 234 234 235 237 241 245 248 250 252 255 259 262 264 267 272 276 278 Chapter The Constitution and Criminal Justice 285 Introduction 286 Search and Seizure 286 The Exclusionary Rule 295 Arrest 298 Police Interrogation and Confessions of Guilt 300 The Right to Counsel 303 Bail and Pretrial Detention 306 Plea Bargaining 307 Trial by Jury 308 The Protection against Double Jeopardy 312 Incarceration and the Rights of Prisoners 314 The Death Penalty Appeal and Postconviction Relief Juvenile Justice Conclusion Key Terms For Further Reading Olmstead v United States (1928) Katz v United States (1967) Kyllo v United States (2001) Weeks v United States (1914) Mapp v Ohio (1961) United States v Leon (1984) Hudson v Michigan Miranda v Arizona (1966) United States v Dickerson (2000) Powell v Alabama (1932) Gideon v Wainwright (1963) Batson v Kentucky (1986) Kansas v Hendricks (1997) Furman v Georgia (1972) Gregg v Georgia (1976) Roper v Simmons (2005) 317 323 326 327 327 328 329 331 333 336 338 342 346 353 357 360 363 365 369 373 377 379 Chapter Privacy and Personal Autonomy Introduction Constitutional Foundations of the Right of Privacy Procreation and Birth Control The Abortion Controversy The Right of Privacy and Living Arrangements Privacy and Gay Rights Privacy and “Victimless Crimes” The Right to Die Conclusion Key Terms For Further Reading Jacobson v Massachusetts (1905) Meyer v Nebraska (1923) Buck v Bell (1927) Griswold v Connecticut (1965) Roe v Wade (1973) Planned Parenthood of Southeastern Pennsylvania v Casey (1992) Stenberg v Carhart (2000) Bowers v Hardwick (1986) Lawrence v Texas (2003) Washington v Glucksberg (1997) 385 386 Chapter Equal Protection and the Antidiscrimination Principle Introduction Levels of Judicial Scrutiny in Equal Protection Cases 387 389 393 401 402 405 406 409 409 410 410 412 413 414 419 424 430 436 440 447 452 453 454 CONTENTS The Struggle for Racial Equality The Affirmative Action Controversy Gender-Based Discrimination Other Forms of Discrimination The Ongoing Problem of Private Discrimination Conclusion Key Terms For Further Reading Plessy v Ferguson (1896) Brown v Board of Education of Topeka I (1954) Brown v Board of Education of Topeka II (1955) Loving v Virginia (1967) Swann v Charlotte-Mecklenburg Board of Education (1971) Missouri v Jenkins (1995) Grutter v Bolinger (2003) Frontiero v Richardson (1973) United States v Virginia (1996) San Antonio Independent School District v Rodriguez (1973) Romer v Evans (1996) Chapter Elections, Representation, and Voting Rights Introduction Racial Discrimination in Voting Rights The Reapportionment Decisions 457 463 469 475 483 486 486 487 487 490 492 493 496 498 502 509 512 515 519 525 526 527 536 vii Political Parties and Electoral Fairness The Problem of Campaign Finance Conclusion Key Terms For Further Reading Smith v Allwright (1944) Gomillion v Lightfoot (1960) Mobile v Bolden (1980) Rogers v Lodge (1982) Reynolds v Sims (1964) Karcher v Daggett (1983) Bush v Gore (2000) 539 542 544 545 545 546 548 549 552 557 559 563 Appendix A The Constitution of the United States of America A–1 Appendix B Chronology of Justices of the United States Supreme Court B–1 Appendix C Supreme Court Justices by Appointing President, State Appointed From, and Political Party C–1 Appendix D Glossary D–1 Appendix E Internet Resources E–1 Table of Cases T–1 Index I–1 This page intentionally left blank PREFACE A merican constitutional law, to paraphrase Charles Evans Hughes, is what the Supreme Court says it is But of course it is much more than that Constitutional law is constantly informed by numerous actors’ understandings of the meaning of the United States Constitution Lawyers, judges, politicians, academicians, and, of course, citizens all contribute to the dialogue that produces constitutional law Consequently, the Constitution remains a vital part of American public life, continuously woven into the fabric of our history, politics, and culture Our goal in writing this textbook is to illustrate this premise in the context of the most salient and important provisions of the Constitution Volumes I and II of American Constitutional Law contain thirteen chapters covering the entire range of topics in constitutional law Each of the chapters includes an introductory essay providing the legal, historical, political, and cultural context of Supreme Court jurisprudence in a particular area of constitutional interpretation Each introductory essay is followed by a set of edited Supreme Court decisions focusing on salient constitutional issues In selecting and editing these cases, we have emphasized recent trends in major areas of constitutional interpretation At the same time, we have included many landmark decisions, some of which retain importance as precedents while others illustrate the transient nature of constitutional interpretation Although the Supreme Court plays a very important role in American politics, its function is limited to deciding cases that pose legal questions Accordingly, its political decisions are rendered in legal terms Because it is both a legal and a political institution, a complete understanding of the Court requires some knowledge of both law and politics While political discourse is familiar to most college students, the legal world can seem rather bewildering Terms such as habeas corpus, ex parte, subpoena duces tecum, and certiorari leave the impression that one must master an entirely new language just to know what is going on, much less achieve a sophisticated understanding Although we not believe that a complete mastery of legal terminology is necessary to glean the political from the legal, we recognize that understanding the work of the Supreme Court is a complex task We have tried to minimize this complexity by deleting as much technical terminology as possible from the judicial opinions excerpted in this book without damaging the integrity of those opinions Nevertheless, despite our attempts at editing out distracting citations, technical terms, and mere verbiage, the task of understanding Supreme Court decisions remains formidable It is one that requires concentration, patience, and above all the determination to grasp what may at times seem hopelessly abstruse We firmly believe that all students of American politics and law, indeed all citizens, should make the effort In preparing the fourth edition, we have endeavored to incorporate the important developments that have taken place during the five years since the third edition was completed Most significant among these were: 1) the passing of the Rehnquist Court and the dawn of the Roberts Court; and 2) a series of Supreme Court decisions ix T–10 TABLE OF CASES (1873), 18, 19, 20, 34–38, 74, 453 Smith v Allwright, 321 U.S 649, 64 S.Ct 757, 88 L.Ed 987 (1944), 20, 529, 546–48 Smith v Board of School Commissioners of Mobile County, 827 F 2d 684 (11th Cir 1987), 229 Smith v Doe, 538 U.S 84, 123 S.Ct 1140, 155 L.Ed 2d 164 (2003), 314 Sokolow, United States v., 490 U.S 1, 109 S.Ct 1581, 104 L.Ed 2d (1989), 293 Solem v Helm, 463 U.S 277, 103 S.Ct 3001, 77 L.Ed 2d 637 (1983), 315 South Carolina v Gathers, 490 U.S 805, 109 S.Ct 2207, 104 L.Ed 2d 876 (1989), 319 South Carolina v Katzenbach, 383 U.S 301, 86 S.Ct 803, 15 L.Ed 2d 769 (1966), 21, 531 Stack v Boyle, 342 U.S 1, 72 S.Ct 1, 96 L.Ed (1951), 13, 306 Stanford v Kentucky, 492 U.S 361, 109 S.Ct 2969, 106 L.Ed 2d 306 (1989), 321 Stanford v Texas, 380 U.S 926, 85 S.Ct 879, 13 L.Ed 2d 813 (1965), 289 State v (see opposing party) State ex rel v (see opposing party and relator) State of (see name of state) Stanley v Georgia, 394 U.S 557, 89 S.Ct 1243, 22 L.Ed 2d 542 (1969), 402 Steelworkers v Weber, 443 U.S 193, 99 S.Ct 2721, 61 L.Ed 2d 480 (1979), 465 Stenberg v Carhart, 530 U.S 914, 120 S.Ct 2597, 147 L.Ed 2d 743 (2000), 399, 401, 430–36 Steward Machine Company v Davis, 301 U.S 548, 57 S.Ct 883, 81 L.Ed 1279 (1937), 81 Stone v Graham, 449 U.S 39, 101 S.Ct 192, 66 L.Ed 2d 199 (1980), 227 Stone v Mississippi, 101 U.S 814, 25 L.Ed 1079 (1879), 72 Stone v Powell, 428 U.S 465, 96 S.Ct 3037, 49 L.Ed 2d 1067 (1976), 6, 324 Straight v Wainwright, 475 U.S 1099, 106 S.Ct 1502, 89 L.Ed 2d 903 (1986), 324 Strauder v West Virginia, 100 U.S 303, 25 L.Ed 664 (1880), 311, 453 Street v New York, 394 U.S 576, 89 S.Ct 1354, 22 L.Ed 2d 572 (1969), 137 Strickland v Washington, 466 U.S 668, 104 S.Ct 2052, 80 L.Ed 2d 674 (1984), 305 Sturges v Crowninshield, 17 U.S 122, L.Ed 529 (1819), 71 Sugarman v McDougall, 413 U.S 634, 93 S.Ct 2842, 37 L.Ed 2d 853 (1973), 478 Superintendent of Belchertown State School v Saikewicz, 373 Mass 728, 370 N.E 2d 417 (Mass 1977), 406 Swain v Alabama, 382 U.S 944, 86 S.Ct 399, 15 L.Ed 2d 353 (1965), 311 Swann v Charlotte-Mecklenburg Board of Education, 402 U.S 1, 91 S.Ct 1267, 28 L.Ed 2d 554 (1971), 460, 496–98 Swann, State ex rel., v Pack, 527 S.W 2d 99 (Tenn 1975), 214 Sweatt v Painter, 339 U.S 629, 70 S.Ct 848, 94 L.Ed 1114 (1950), 459 Tennessee v Garner, 471 U.S 1, 105 S.Ct 1694, 85 L.Ed 2d (1985), 299 Tennessee v Lane, 541 U.S 509, 124 S.Ct 1978, 158 L.Ed 2d 820 (2004), 476, 477 Terry v Adams, 345 U.S 461, 73 S.Ct 809, 97 L.Ed 1152 (1953), 529 Terry v Ohio, 392 U.S 1, 88 S.Ct 1868, 20 L.Ed 2d 889, 44 O.O 2d 383 (1968), 292, 293, 294 Texas v Johnson, 491 U.S 397, 109 S.Ct 2533, 105 L.Ed 2d 342 (1989), 137, 138, 173–76 Thomas v Review Board, 450 U.S 707, 101 S.Ct 1425, 67 L.Ed 2d 624 (1981), 215 Thomas v Union Carbide, 473 U.S 568, 105 S.Ct 3325, 87 L.Ed 2d 409 (1985), 13 Thompson v Oklahoma, 487 U.S 815, 108 S.Ct 2687, 101 L.Ed 2d 702 (1988), 321 Thompson v Utah, 170 U.S 343, 18 S.Ct 620, 42 L.Ed 1061 (1898), Thornburgh v American College of Obstetricians & Gynecologists, 476 U.S 747, 106 S.Ct 2169, 90 L.Ed 2d 779 (1986), 396, 399 Time, Inc v Firestone, 424 U.S 448, 96 S.Ct 958, 47 L.Ed 2d 154 (1976), 140 Time, Inc v Hill, 385 U.S 374, 87 S.Ct 534, 17 L.Ed 2d 456 (1967), 141 Tinker v Des Moines Independent Community School District, 383 U.S 503, 89 S.Ct 733, 21 L.Ed 2d 731, 49 O.O 2d 222 (1969), 127, 137 Torasco v Watkins, 367 U.S 488, 81 S.Ct 1680, L.Ed 2d 982 (1961), 5, 212 Trop v Dulles, 356 U.S 86, 78 S.Ct 590, L.Ed 2d 630 (1958), 14, 317 Truax v Raich, 239 U.S 33, 36 S.Ct 7, 60 L.Ed 131 (1915), 82 Tuilaepa v California, 512 U.S 967, 114 S.Ct 2630, 129 L.Ed 2d 750 (1994), 319 T W., In re, 551 So 2d 1186 (Fla 1989), 30 Twining v New Jersey, 211 U.S 78, 78 S.Ct 127, 53 L.Ed 2d 97 (1908), 18 Tyson v Banton, 273 U.S 418, 47 S.Ct 426, 71 L.Ed 718 (1927), 75 United Foods, Inc., United States v., 533 U.S 405, 121 S.Ct 2334, 150 L.Ed 2d 438 (2001), 154 Ursery, United States v., 518 U.S 267, 116 S.Ct 2135, 135 L.Ed 2d 549 (1996), 314 U.S Civil Service Commission v National Association of Letter Carriers, AFL-CIO, 413 U.S 548, 93 S.Ct 2880, 37 L.Ed 2d 796 (1973), 155 U.S Trust Company v New Jersey, 431 U.S 1, 97 S.Ct 1505, 52 L.Ed 2d 92 (1977), 72 Van Orden v Perry, 545 U.S _, 125 S Ct 2854, 162 L.Ed 2d 607 (2005), 231, 272–75 Vieth v Jubelirer, 541 U.S 267, 124 S.Ct 1769, 158 L.Ed 2d 546 (2004), 540 Virginia v Black, 538 U.S 343, 123 S.Ct 1536, 155 L.Ed 2d 535 (2003), 135, 177–80 Virginia, United States v., 518 U.S 515, 116 S.Ct 2264, 135 L.Ed 2d 735 (1996), 29, 473, 474, 512–14 97055_TOC_pT1-12 pp2.qxd 2/1/07 7:19 PM Page T–11 TABLE OF CASES Virginia Board of Pharmacy v Virginia Citizens Consumer Council, 425 U.S 748, 96 S.Ct 1817, 48 L.Ed 2d 346 (1976), 151–52 Wallace v Jaffree, 472 U.S 38, 105 S.Ct 2479, 86 L.Ed 2d 29 (1985), 227, 252–54 Waller v Georgia, 467 U.S 39, 104 S.Ct 2210, 81 L.Ed 2d 31 (1984), 309 Walton v Arizona, 497 U.S 639, 110 S.Ct 3047, 111 L.Ed 2d 511 (1990), 319 Walz v Tax Commission, 397 U.S 664, 90 S.Ct 1409, 25 L.Ed 2d 697 (1970), 232, 276–78 Warden v Hayden, 387 U.S 294, 87 S.Ct 1642, 18 L.Ed 2d 782 (1967), 292 Washington v Davis, 426 U.S 229, 96 S.Ct 2040, 48 L.Ed 2d 597 (1976), 455–56 Washington v Glucksberg, 521 U.S 702, 117 S.Ct 2258, 138 L.Ed 2d 772 (1997), 408, 447–51 Watkins v U.S Army, 847 F 2d 1329 (9th Cir 1988), 481 Weber v Aetna Casualty & Surety Company, 406 U.S 164, 92 S.Ct 1400, 31 L.Ed 2d 768 (1972), 477 Webster v Reproductive Health Services, 492 U.S 490, 109 S.Ct 3040, 106 L.Ed 2d 410 (1989), 397, 398 Weeks v United States, 232 U.S 383, 34 S.Ct 341, 58 L.Ed 652 (1914), 295, 298, 336–38 Weinberger v Wiesenfeld, 420 U.S 636, 95 S.Ct 1225, 43 L.Ed 2d 514 (1975), 471 Wesberry v Sanders, 376 U.S 1, 84 S.Ct 526, 11 L.Ed 2d 481 (1964), 538 West Coast Hotel Company v Parrish, 300 U.S 379, 57 S.Ct 578, 81 L.Ed 703 (1937), 80, 81, 82, 108–11 West Virginia State Board of Education v Barnette, 319 U.S 624, 63 S.Ct 1178, 87 L.Ed 1628 (1943), 136, 219, 235–37 Wheeler, United States v., 435 U.S 313, 98 S.Ct 1079, 55 L.Ed 2d 303 (1978), 312 T–11 Whitney v California, 274 U.S 357, 47 S.Ct 641, 71 L.Ed 1095 (1927), 130, 132, 133 Widmar v Vincent, 454 U.S 263, 102 S.Ct 269, 70 L.Ed 2d 440 (1981), 224 Williams v Florida, 399 U.S 78, 90 S.Ct 1893, 26 L.Ed 2d 446, 53 O.O 2d 55 (1970), 309, 310 Wilson v Arkansas, 514 U.S 927, 115 S.Ct 1914, 131 L.Ed 2d 976 (1995), 290, 297 Winfield v Division of PariMutuel Wagering, 477 So 2d 544 (Fla 1985), 400 Wisconsin v Mitchell, 508 U.S 476, 113 S.Ct 2194, 124 L.Ed 2d 436 (1993), 135 Wisconsin v Yoder, 406 U.S 205, 92 S.Ct 1526, 32 L.Ed 2d 15 (1972), 220, 237–41 Wolf v Colorado, 338 U.S 25, 69 S.Ct 1359, 93 L.Ed 1782 (1949), 295, 297 Wolff v McDonnell, 418 U.S 539, 94 S.Ct 2963, 41 L.Ed.2d 935 (1974), 316 Wong Sun v United States, 371 U.S 471, 83 S.Ct 407, L.Ed 2d 441 (1963), 302 Wooley v Maynard, 430 U.S 705, 97 S.Ct 1428, 51 L.Ed 2d 752 (1977), 219 Wynehamer v New York, 13 N.Y 378 (1856), 73 Yick Wo v Hopkins, 118 U.S 356, S.Ct 1064, 30 L.Ed 220 (1886), 82, 453, 526 Yarbrough, Ex parte, 110 U.S 651, S.Ct 152, 28 L.Ed 274 (1884), 528 Yates v United States, 354 U.S 298, 77 S.Ct 1064, L.Ed 2d 1356 (1957), 132 Youngstown Sheet & Tube Company v Sawyer, 343 U.S 579, 72 S.Ct 863, 96 L.Ed 1153 (1952), 11 Zelman v Simmons-Harris, 536 U.S 639, 122 S.Ct 2460, 153 L.Ed.2d 604 (2002), 233, 278–84 Zorach v Clauson (1952), 224, 225, 232 This page intentionally left blank INDEX Abortion conflict over, 393–400 eroding support for, on Supreme Court, 396–97 and privacy rights, 30, 386 partial birth, 399–400 pro-life demonstrations against, 146–47 public funding restrictions, 395–96, 479–80 regulation of, 394–95 restricting counseling on, 156 restricting information about, 398 and state constitutions, 400 support for, on Supreme Court, 394, 398–99 Abrams, Jacob, 129 Accommodation of religion, 231 Ackerman, Bruce, 541 Act 64, 544 Actual malice, 140 Adams, John adoption and enforcement of Sedition Act, 123 Adderley, Harriet Louise, 146 Ad hoc balancing, 132 Advertising, commercial, 152–54 Affirmative action, 463–69 Age discrimination, 475–76 Age Discrimination in Employment Act, 475 Age of Conservative Activism, 69 Aggravating factors, in death penalty cases, 318 Agricultural Adjustment Act, 81 Airports, 147 Alcoholic beverages commercial advertising of, 152–53 Alienage, and discrimination, 478 Alito, Samuel on death penalty, 322 “All deliberate speed,” 459 al-Qaeda, American Bar Association (ABA), 75 American Civil Liberties Union (ACLU), 398, 403 American Express Company, 83 Americans United for Separation of Church and State, 226, 227 Americans with Disabilities Act (ADA), 476, 477 Amish, 220–21 Anderson, John, 540 Anderson, Riley, 400 Animal sacrifices, and religious liberty, 217 Anonymous informants, 289–90 Anonymous tip, detention of automobile based on, 293–94 Anthony, Susan B., 26 Anti-Federalists, 9, 123 Antiterrorism and Effective Death Penalty Act, 6, 325 Appeal and postconviction relief, 323–25 Appeals by right, 323 Appointed counsel, effectiveness of, 305 Aquinas, Saint Thomas, 393 Arms, right to keep and bear, 10 Arraignment, 306 Arrest probable cause hearing, 298–99 use of force by police during, 298–99 Arrest warrant, 298 Assembly, freedom of, 9–10, 123, 145–49, 158 anti-abortion demonstrations, 146–47 civil rights demonstrations, 145–46 and time, place, and manner regulations, 147–49 and zoning regulations, 148–49 See also Expressive freedom Association, freedom of, 123, 157–59 gay rights versus, 159 political, 158 and problem of discrimination, 158–59, 484–85 See also Expressive freedom At-large elections, 531–32 Attorneys, advertising and solicitation by, 153–54 Automobile detention based on anonymous tips, 293–94 requiring people to exit car during, 294 Automobile searches, 291–92 Bad tendency test, 129–31 Bail excessive, 13, 306 and pretrial detention, 306 Bail Reform Act, 306 Baird, William, 392 Bakke, Alan, 464 Baldus, David, 320 Barry, Andrew, 406 Benevolent neutrality, 231 Bill of Rights, adoption and ratification of, civil rights and liberties in, 9–15 criminal justice protections in, 286, 287 incorporation of, 23–25 nationalization of, 22–25 privacy rights in, 390–91 See also specific amendments Bills of attainder, 7, 286 Bin Laden, Osama, Bingham, John, 18 Birth control, and privacy rights, 14–15, 389–92 marital couples and, 392 Black, Charles L., 74 Black, Galen, 215, 216 Black, Hugo on civil rights demonstrations, 146 on clear and probable danger, 132 on economic due process, 81–82 I–1 I–2 INDEX on education, 222, 223 on First Amendment, 124 on incorporation of Bill of Rights, 24 on obscenity, 143 on police interrogation, 300 on political association, 158 on privacy rights, 386, 391, 392 on religious tests, on school prayer, 226 on suspect classification doctrine, 455 on voting rights, 531 Black Codes, 457 Blackmun, Harry A on abortion, 393–94, 397, 398–99 on affirmative action, 464, 465 on capital punishment, 319 on commercial speech, 152 on gay rights, 402 on gender-based peremptory challenges, 311 on juvenile justice, 326 on nude dancing, 139 on plea bargaining, 308 on religious freedom, 216, 230 on state action doctrine, 21 on takings issue, 85 Blackstone, William, 125 Bloch, Susan, 481 Bob Jones University, 232 Boomer, Timothy, 135 Bork, Robert H., 386, 397 Boy Scouts of America, 159 and discrimination based on sexual orientation, 485 Bradley, Joseph L., 74–75 Brady Handgun Violence Prevention Act, 10 Brandeis, Louis D., 485 on clear and present danger test, 129, 130, 131 on economic due process, 77, 80 on privacy rights, 287, 385, 388 Brandeis brief, 77 Brennan, William on affirmative action, 464, 465, 466 on automobile detention, 294 on death penalty, 317–18 on First Amendment generally, 122 on flag burning, 138 on gender-based discrimination, 471, 472 on good-faith exception to exclusionary rule, 296 on informants, 289–90 on political association, 158 on press freedom, 127 on privacy rights, 392, 401 on private discrimination, 485 on prurient interest test, 142–43 on religious liberty, 214–15, 225, 228, 230 on residency and alienage, 478 on Seventh Amendment, 13 on speech restrictions, 151 on takings issue, 85 on zoning regulations, 149 Brewer, David J., 76, 458 Breyer, Stephen G on abortion procedures, 399 on Act 64, 544 on age discrimination, 476 on aid to parochial schools, 225 on desegregation, 462 on exclusionary rule, 297 on Federal Election Campaign Act, 543 ideology of, 399 on indecent programming on cable television, 150 on McCain-Feingold Law, 543 on race-conscious redistricting, 535 on religious displays on public property, 231 on religious expression in public schools, 229 on sexual predators, 313 on tuition tax credits, 233 Brown, Henry Billings, 20, 458 Brown, Stanley Oscar, 212 Bryan, William Jennings, 228 Buck, Carrie, 389 Bundy, Ted, 305 Bunting, Josiah, III, 474 Burden of proof, 455 Burger, Warren E on abortion, 396 on affirmative action, 464, 465 on compulsory school attendance, 220 on death penalty, 319 on exclusionary rule, 295–97 on Fourth Amendment, 11 on gender-based discrimination, 471, 473 on habeas corpus, 6, 324 on imminent lawless action, 133 on informants, 289 on obscenity, 143 on press freedom, 309 on reapportionment, 537 on religious liberty, 230, 232 on religious tests, on residency and alienage, 478 on right to counsel, 304 on self-incrimination, 301 Burr, Aaron, treason trial, Burton, Harold, 223 Bush, George H W and abortion issue, 156, 398 Bush, George W., 541–42 on publishing classified information, 128 Bush, Jeb, 408 Business affected with a public interest, 75 Busing controversy, 460–62 Butler, Pierce, 79 Cable television, “indecent” programming on, 150–51 Cable Television Consumer Protection and Competition Act, 150 Campaign finance, problems of, 542–44 Cantwell, Newton, 212–13 Capital punishment, 317–22 of juveniles, 321–22 Cardozo, Benjamin N., 24, 80, 124 Carhart, LeRoy, 399 Carlin, George, 150 Ceballos, Richard, 155 Censorship, 24, 124 See also Prior restraint Chafee, Zechariah, Jr., 130 Change of venue, 309 Charles River Bridge Company, 71 Chase, Samuel, 6, 68–69, 70 Child benefit theory, 224 Child labor, 78 Child pornography, 144 Chilling effect on speech, 123 Christmas displays, on public property, 230–31 Churches separation of state and, 221–23 tax exemptions for, 231–33 See also Religious liberty Citadel, 473 Civic duties, and religious liberty, 218–20 Civil forfeitures, 14, 314 Civil liberties, Civil Rights Act of 1866, 16, 17, 457 Civil Rights Act of 1870, 21 Civil Rights Act of 1871, 21 Civil Rights Act of 1875, 457 Civil Rights Act of 1964, 457, 470, 530 Civil rights, in Bill of Rights, 9–15 in Fourteenth Amendment, 17–22 in original Constitution, 3–8 standards of judicial review in, 28–29 in state constitutions, 29–30 INDEX and voting rights, 25–27 See also Individual rights Civil rights demonstrations, 145–46 Civil suits, 13, 14 to enforce Fourth Amendment, 297–98 See also Libel Civil trials, 13 Civil unions, 482–83 Clark, Tom, 211, 295 Clarke, John H., 129 Classical conservatism, 387 Classified information, publishing, 127–28 Clear and present danger test, 128 Clear and probable danger test, 131–32 Clinton, Bill and affirmative action, 467 and Antiterrorism and Effective Death Penalty Act, 325 and “don’t ask, don’t tell” policy, 481 and gender-based discrimination, 474 Coalition for Economic Equity, 467 Coerced confessions, 302–3 Coffee, Linda, 393 Cohen, Paul Robert, 134 Cold War, 131 Collegiate athletics, gender equity in, 474–75 Commercial speech, 151–54 Common Benefits Clause (Vermont), 482 Communications Decency Act, 144 Community standards, 143 Compelling government interest, 28, 214 Compelling interest, 394, 455 Compulsory school attendance, 220–21 Compulsory self-incrimination, protection against, 11, 24, 300, 301 Compulsory sterilization, 389 Confessions of guilt, 300–3 coerced, 302–3 Confidential and anonymous informants, 289–90 Congress See U.S Congress Congressional enforcement, 21–22 Conkling, Roscoe, 75 Connecticut birth control controversy, 390–92 Conscientious objectors, 211 Consent decrees, 465 Consent searches, 291 Constitution See U.S Constitution state, and abortion rights, 400 Constitutional democracy, 526 Constitutional republic, 526 Content neutrality, and freedom of assembly, 147 Contraceptives See Birth control Contract Clause, 8, 70, 73 later developments, 72–73 Marshall Court decisions, 70–71 Taney Court decisions, 71–72 Contracts, 68 Cooley, Thomas M., 74 Counsel appointed, effectiveness of, 305 right to, 12, 303–5 Court-ordered busing, 460 Courts See Federal courts; State courts; U.S Supreme Court Cox, B Elton, 145 Creationism-evolution conflict, 228–29 Cramer, Anthony, Criminal justice appeal and postconviction relief, 323–25 arrest, 298–99 bail and pretrial detention, 306 death penalty, 317–22 exclusionary rule, 295–98 incarceration and prisoners’ rights, 314–17 jury trials, 308–11 juveniles, 321–22, 326 plea bargaining, 307–8 police interrogation and confessions of guilt, 300–3 protection against double jeopardy, 312–14 relevant constitutional provisions, 286 right to counsel, 303–5 search and seizure, 286–94 Criminal syndicalism, 132 Cross-burning, 135 Cruel and unusual punishments, 14, 314, 317, 317 Cruel and Unusual Punishments Clause, 14, 316, 317, 318 Cruzan, Nancy, 407 Cussing canoeist case, 135 Custodial interrogation, 300 Darrow, Clarence, 228 Dartmouth College, 70–71 Davey, Joshua, 217, 218 Day, William R., 295 Death penalty, 317–22 federal, 320 for juveniles, 321–22 and mental incompetence, 320–21 I–3 racial discrimination and, 320 reinstatement of, 318–19 Debt adjusting, 81–82 De facto segregation, 483 Defamation, 125, 139–42 Defense of Marriage Act, 482, 483 De jure racial segregation, decline of, 458–59 Democracy, representative, 526 Democratic Party, white primary, 528–29 Democratic process, policing, 527 Dennis, Eugene, 131 Depression, 73, 79 Dershowitz, Alan M., 541 Desegregation, 459–60 Devotional theology, study of, 217–18 Dirksen, Everett, 538 Dirksen Amendment, 538 Disabled persons, discrimination against, 476–77 Discrete and insular minorities, 317, 455 Discretionary review, 323 Discrimination, 453 based on age, 475–76 based on sexual orientation, 481–83 of disabled persons, 476–77 and freedom of association, 158–59 gender-based, 29, 158–59, 469–75 and illegitimacy, 477–78 private, 483–85 against religious expression, 229 and residency and alienage, 478 wealth-based, 478–80 See also Racial discrimination Disparate impact of racially neutral policies, 455–56 Doctor-assisted suicide, 407–8 Doctrine of incorporation, 23 Double jeopardy and Fifth Amendment, 11, 24 protection against, 312–14 Double Jeopardy Clause, 24 Douglas, William O on birth control, 390–91 and First Amendment freedoms, 132, 209 on gender-based discrimination, 472 on incorporation of Bill of Rights, 24 on obscenity, 143 on political association, 158 on poll taxes, 530 on religious liberty, 209, 213, 224, 232 I–4 INDEX Drug courier profiles, 291 Drug Enforcement Administration (DEA), 293 Drugs, recreational, private use of, 405 Due Process Clause in Fifth Amendment, 11–12 in Fourteenth Amendment, 19 Due process of law and death penalty, 317 and freedom of association, 157 economic, 73–82 and gay rights, 404 and incorporation of Bill of Rights, 210, 286, 295 and privacy rights, 388 procedural, 18–20 and property rights, 23 substantive, 12, 72, 73–74, 78, 81, 388–89 Easement, 84 Eckhardt, Christopher, 137 Economic due process corporate influence on, 75–76 decline of, 79–80 early Supreme Court resistance to, 74–75 heyday of, 77–78 maturation of, 76–77 and origins of substantive due process, 73–74 Economic equal protection, 478–80 Economic freedom, 68 and Contract Clause, 70–73 and economic due process, 73–82 in age of conservative activism, 69 modern judicial perspective on, 69 Economic regulation and equal protection, 82–83 Supreme Court’s contemporary position on, 81–82 Editorializing on public television and radio, 151 Education and affirmative action, 463–65, 467–69 compulsory school attendance, 220–21 desegregation in, 459–60 and evolution-creationism conflict, 228–29 and gender-based discrimination, 473–74 and press freedom, 126 public school funding controversy, 479 religion and, 223–29, 231–33 See also School prayer segregation in, 458–59 and students’ First Amendment rights, 136–37 tuition tax credits and vouchers, 233 Education for all Handicapped Children Act, 476 Effects test, 532 Eighth Amendment, 13–14 incorporation of, 24, 25 and pretrial detention, 306 protection against cruel and unusual punishments, 14, 314, 315, 316, 319, 321 and victim impact evidence, 319 Eisenhower, Dwight D and school desegregation, 460 Elections, 544 at-large, 531–32 and campaign finance, 542–44 free and fair, 526 judicial, challenges to systems of, 533–34 McCain-Feingold Law, 543–44 partisan gerrymandering, 540–41 and political parties, 539–42 and racial gerrymandering, 530, 534, 535 See also Voting rights Electronic media, and First Amendment, 149–51 Ely, John Hart, 74, 539 Emergency searches, 292 Eminent domain, 11, 83, 84–85 Enforcement Act of 1870, 21, 527 Epperson, Susan, 228 Epstein, Richard, 88 Equal access policies, 224 Equal Pay Act, 470 Equal protection of the laws, 17, 453 for disabled persons, 476–77 economic, 478–80 and economic regulation, 82–83 Fifth Amendment component of, 453–54 and gender-based discrimination, 469–75 and illegitimacy, 477–78 and levels of judicial scrutiny, 454–56 and racial equality (see Racial equality, struggle for) and residency and alienage, 478 See also Discrimination Equal Protection Clause, 17, 20, 82–83, 453 and 2000 presidential election, 542 and affirmative action, 468 and compulsory sterilization, 389 expanding scope of, 454–55 and Fourteenth Amendment, 20 and gay rights, 404 and peremptory challenges, 311 and race-conscious redistricting, 534 and reapportionment, 536 See also Equal protection of the laws Equal Rights Amendment (ERA), 470, 472 Equality, Error correction, 323 Establishment Clause, 5, 218 incorporation of, 24, 211 interpretations of, 221–23 and religious liberty, 228, 231, 232, 233 and religious tests, Ethics in Government Act, 155 European Court of Human Rights, 404 Euthanasia, and privacy rights, 386 Euthanasia See Right to die Evanescent evidence, 292 Evangelical Lutheran Church, 84 Evolution-creationism conflict, 228–29 Excessive bail, 13 Excessive Bail Clause, 306 Excessive fines, 14 Exclusionary rule, 295, 297 Burger Court’s curtailing of, 295–97 Warren Court’s expansion of, 295 Exigent circumstances, 290 Ex post facto laws, 6–7, 286 Expressive conduct, 124 Expressive freedom, and ad hoc balancing, 132 and bad tendency test, 129–31 and clear and present danger test, 128 and clear and probable danger test, 131–32 and commercial speech, 151–54 and electronic media, 149–51 and imminent lawless action, 133 interpretive foundations of, 123–25 private control of property versus, 85–86 of public employees and beneficiaries, 154–57 in public forum, 145–49 and symbolic speech, 136–39 Expressive religious conduct, 212 Fair hearing, 12 Fair Housing Act, 13, 483 Fair Labor Standards Act, 81 Fair notice, 12 INDEX Fair trial doctrine, 308 Falwell, Jerry, 226 libel suit against Hustler, 141 Faretta, Anthony Pasquall, 305 Faubas, Orval, 460 Federal Anti-Drug Abuse Act, 320 Federal Cigarette Labeling and Advertising Act, 153 Federal Communications Commission (FCC), 150 Federal Crime Bill, 320 Federal death penalty, 320 Federal Education Act, Title IX, 470 Federal Election Campaign Act Amendments of 1974, 542–43 Federal Lobbying Act, 155 Federalism judicial, 30, 479 Federalist Papers, The, 123 No 84, Fee simple title, 84 Field, Stephen J., 74, 75, 211 Fifteenth Amendment, 26, 526, 527 Fifth Amendment, 11–12, 79 Double Jeopardy Clause, 24, 312–14 equal protection component of, 453–54, 471 Just Compensation Clause, 11, 22–23, 83–87 and privacy rights, 388 Self-Incrimination Clause, 11, 300 See also Due Process Clause Fighting words, 125, 134 Fines, excessive, 14, 314 Firestone, Dorothy, 140–41 First Amendment, 9–10, 22, 123 and campaign finance, 543 and electronic media, 149–51 and privacy rights, 388 (see also Privacy rights) scope of, 124–25 whistle blowing and, 155–56 See also Establishment Clause; Expressive freedom; Free Exercise Clause; Religious liberty First Amendment absolutism, 124–25 Flag burning and symbolic speech, 137–38 Flag salute controversy, 136, 218–19 Forfeitures, civil, 14, 314 Fortas, Abe, 137, 228 Forum for Academic and Institutional Rights, 157 Fourteenth Amendment, 11, 17–22, 79, 457 and affirmative action, 464, 466, 468 and age discrimination, 476 and civil rights demonstrations, 145 and discrimination of disabled persons, 476–77 and capital punishment for juveniles, 321 and gay rights, 404 and gender-based discrimination, 470–71 incorporation of Bill of Rights, 22–25, 286 First Amendment freedoms of speech and press, 123–24 Fourth Amendment, 295 Religion Clauses of First Amendment, 24, 210–11, 223 right to counsel provision of Sixth Amendment, 303 and peremptory challenges, 311 and poll taxes, 530 and privacy rights, 19, 388 and public school funding, 479 and racial equality, 457, 458 ratification of, 73 and restrictive covenants, 484 and state action, 20–21 See also Due Process Clause; Equal Protection Clause Fourth Amendment, 11 civil suits to enforce, 297–98 exclusionary rule, 295–98 good faith exception, 296–97 and privacy rights, 387 reasonable expectations of privacy and, 287–88 Frankfurter, Felix on birth control, 390 on clear and probable danger test, 132 on exclusionary rule, 295 on flag salute requirement, 219 and Fourth Amendment, 297–98 on partisan gerrymandering, 540 on racial gerrymandering, 530 on reapportionment, 536 on religious education, 223 Free Exercise Clause, 5, 211, 212, 218 and freedom of association, 157–58 incorporation of, 24, 211 parens patriae versus, 220–21 and unconventional religious practices, 213–18 Free marketplace of ideas, 130 Freedom of assembly, 123 Freedom of association, 123 Freedom of expression, 86–87, 123 Freedom of the press, 123 I–5 Freedom of speech, 123 Frohnmeyer, John, 156 Frontiero, Sharon, 471 Fruit of the poisonous tree doctrine, 302 Fuller, Melville W., 76 Full Faith and Credit Clause, 483 Fulminante, Oreste, 303 Fundamentalists, 228 Fundamental rights, 18, 214, 394, 453 Gag orders, 309 Gay rights and Boy Scouts, 159 and discrimination based on sexual orientation, 481–83 freedom of association versus, 159 and military recruitment, 157 and privacy rights, 386, 402–4 and sodomy laws, 402–4 Gender-based classifications, 469 Gender-based discrimination, 469–70 in collegiate athletics, 474–75 congressional responses to sexual equality demands, 470 by educational institutions, 473–75 and Equal Rights Amendment, 470 freedom of association versus, 158–59 and intermediate scrutiny, 29 judicial scrutiny of, 471–73 Gender-based peremptory challenges, 311 Gender equity, 474 Gender-neutral, 472 General warrants, 289 Gerrymandering partisan, 540–41 racial, 530, 534 Gillman, Howard, 77 Ginsburg, Ruth Bader on age discrimination, 476 on aid to religious schools, 225, 226 on exclusionary rule, 297 on gender-based discrimination, 474 ideology of, 85, 399 on race-conscious redistricting, 535 on religious liberty, 229 on McCain-Feingold Law, 543 on school desegregation, 462 on sexual predators, 313 on takings issue, 85 on tuition tax credits, 233 on whistleblowers, 155–56 I–6 INDEX Gitlow, Benjamin, 130 Good faith exception, 296–97 Gore Al, 541–42 Government contractors, First Amendment rights of, 156 Grandfather clauses, 27, 528 Grand jury, indictment by, 11 Great Depression, 69, 72, 79, 80, 82 Griswold, Estelle, 390 Group rights, 463 Guilt, confessions of, 300–3 Habeas corpus, writ of, 5–6, 18 federal review of state criminal cases, 323–25 Habitual offender laws, 315 Hamilton, Alexander on Bill of Rights, on democracy, 526 Hand, Learned, 132 Handicapped persons, discrimination against, 476–77 Hardwick, Michael, 402 Harlan, John Marshall (the elder) on color blind Constitution, 452 on judicial review of economic regulation, 76 on separate but equal doctrine, 458 on substantive due process, 389 Harlan, John Marshall (the younger) on ad hoc balancing, 132 on affirmative action, 463, 465 on birth control, 391 on exclusionary rule, 295 fighting words, 134 on flag burning, 137 on gay rights, 402 on privacy, 288, 387 on profanity, 135 Harmless error analysis, 303 Harmless errors, 323 Hate speech, 134–35 Hayes, Paul, 307–8 Health and Human Services, Department of, 156, 398 Hearing fair, provided in Fifth Amendment, 12 probable cause, 298–99 Heightened scrutiny, 29, 456 of gender-based discrimination, 471–73 Helmet laws, and privacy rights, 405 Helms Amendment, 150 Hinckley, John, 155 Hogan, Joe, 473 Holmes, Oliver Wendell, Jr on clear and present danger test, 128, 129, 130, 131 on economic due process, 77, 78, 80 on sterilization of mentally retarded persons, 389–90 on takings issue, 83–84 Homosexuality and gay rights, 159, 386, 402–4 discrimination based on, 481–83 Hot pursuit, 292 House Un-American Activities Committee, Hughes, Charles Evans on Contract Clause, 72 on economic due process, 80–81 on prior restraint, 126 Human rights statutes, 484 Hung jury, 313 Hustler (magazine), libel suit against, 141 Hyde Amendment, 396, 480 Illegitimacy, and discrimination, 477–78 Imminent lawless action, 133 Incarceration, and prisoners’ rights, 314–17 Incompetence, metal, and death penalty, 320–21 Incorporation, doctrine of, 23 Indictment, 11 Individual rights, 8, 9, 10, 14, 15, 29 modern judicial concern for, 88 See also Civil rights Inevitable discovery exception, 302 Informants, confidential and anonymous, 289–90 Intent standard, 532 Intermediate scrutiny, 29, 471 Internal Revenue Service (IRS), 232 Internal Security Act, 131 International Society for Krishna Consciousness (ISKCON), 148 Internet and First Amendment protections, 125, 151 “indecency” on, 150 pornography on, 144 Interrogation See Police interrogation Invasion of privacy, 141–42 Investigatory detention, 292–94 Iredell, James, 68–69 Issacharoff, Samuel, 542 Jackson, Robert H on clear and probable danger test, 132 on flag salute controversy, 136, 219 on police interrogation, 300 on religious schools, 223 on treason, J A Croson Company, 465 Jaybird Democratic Association, 529 Jaycees, 158, 485 Jefferson, Thomas on Bill of Rights, and freedom of speech, 123 “wall of separation”, 222 Jehovah’s Witnesses and flag salute, 136, 218 and parens patriae, 220 religious solicitation by, 212–13 Jim Crow laws, 20, 457–58 Johnson, Gregory, 137–38 Johnson, Lyndon B and affirmative action, 463 and voting rights, 530 Johnson, William, 70 Journalists on publishing classified information, 128 Judicial activism, 69 Judicial election systems, challenges to, 533–34 Judicial federalism, 479 Judicial restraint, 318 Judicial scrutiny heightened, 29, 456 intermediate, 29 of gender-based discrimination, 470–71 levels of, in equal protection cases, 454–56 minimal, 28 strict, 28–29, 455 Judiciary Act of 1789, 323 Juries exclusion of minorities from, 310–11 size of, 13, 309–10 Jury trial, 13, 308–11 exclusion of minorities from juries, 310–11 jury size, 13, 309–10 pretrial publicity problems, 308–9 unanimity principle, 310 Just compensation, 11 Just Compensation Clause, 11, 22–23, 83–87 Justice Department, 530 Justices See specific Supreme Court justices Juvenile justice, 321–22, 326 Juveniles, capital punishment of, 321–22 Kanka, Megan, 313 Kasper, John, 460 Katz, Charles, 288 INDEX Kennedy, Anthony on 2000 presidential election, 541 on abortion, 397, 399–400 on affirmative action, 465 on aid to religious schools, 225–26 on anti-abortion demonstrations, 147 on attorney advertising and solicitation, 153, 154 on capital punishment, 319 on capital punishment for juveniles, 321–22 on child pornography, 144 on discrimination based on sexual orientation, 481 on flag burning, 138 on gay rights, 404 on government contractors, 156 on partisan gerrymandering, 540, 541 on religious liberty, 216 on racial gerrymandering, 535 on sexual predators, 313 on whistleblowers, 155 Kennedy, John F and affirmative action, 463 Kevorkian, Jack, 407 King, Peter, 127–28 King, Rodney, 312 Knock-and-announce requirement, 290, 297 Knowing and intelligent waiver, 305, 307 Kolbert, Kathryn, 398 Ku Klux Klan, 10, 133, 158, 527 Laissez-faire capitalism, 69, 71, 77 Late-term abortion, 399 Least restrictive means test, 151 “Left Wing Manifesto,” 129, 130 Lemon test, 222–23 Libel, 124, 139–42 Libertarianism, 387 Liberty, See also Civil rights; Civil liberties Liberty of contract, 19, 76 Life imprisonment, mandatory, 315–16 Life magazine, 141 Lincoln, Abraham, 6, 123 Lindh, John Walker, Literacy tests, 27, 529 Little Rock crisis, 460 Living arrangements, and privacy rights, 401 Living will, 408 Locke, John, 3, 67, 68 Lynn, Barry, 226, 227 Madison, James and Bill of Rights, 9, 210, 287 on Ninth Amendment, 14 on religion, 210 Madsen, Judy, 146 Magistrate, neutral and detached, 289 Magna Carta, 12, 19 Magnet schools, 461 Malapportionment, 536 Malice, actual, 140 Mandatory life imprisonment, 315–16 Marriage, and birth control, 392 Marsh, Michael Lee, 322 Marshall, John on Contract Clause, 8, 70–71 on Fifth Amendment, 22 and incorporation of Bill of Rights, 22 on treason, Marshall, Thurgood on abortion, 480 on affirmative action, 464, 465–66 on at-large elections, 532 on automobile searches, 291–92 on constitutional standards of equality, on death penalty, 317–18, 319 on habeas corpus, 324 on heightened scrutiny, 456 on informants, 294 on mental incompetence and death penalty, 320 on nude dancing, 139 on privacy rights, 401 on public school funding, 479 on religious liberty, 216 on Seventh Amendment, 13 on speech rights of public employees, 155 on unanimity principle, 310 Matthews, Stanley, 19, 76, 82 McCain-Feingold Law, 543–44 McCarthyism, 131 McCleskey, Warren, 324 McCorvey, Norma See Roe, Jane McPherson, Ardith, 155 McReynolds, James C., 79 McVeigh, Timothy, 320 Medicaid, abortions and, 395 Medical treatment, right to refuse, 220, 406–8 Megan’s Law, 313 Mercy killing See Right to die Meredith, James, 137 Mental incompetence, death penalty and, 320 Michigan Court of Appeals, 135 I–7 Military service recruitment conflict, 157 and religious liberty, 219 Militia, well-regulated, 10 Mill, John Stuart, 386 Miller test, 143–44 Miller, Samuel F., 18, 74 Minimal scrutiny, 28 Minimum wage laws, 80–81 Minorities, exclusion from juries, 310–11 Miranda warnings, 301–2 inevitable discovery exception, 302 public safety exception, 301–2 Mississippi University for Women (MUW), 473 Mistrials, 313 Mitigating circumstances, 319 Mockery of justice test, 305 Moment of silence, 227 “Monkey Trial,” 228 Moral individualism, 386 Mormon polygamy case, 214 Murphy, Frank, 297–98 Narrowly tailored laws, 28 National Association for the Advancement of Colored People (NAACP), 158, 528 National Endowment for the Arts (NEA), funding controversy, 156–57 National Prohibition Act, 287 Native American Church, and use of peyote, 215–16 Natural rights, 3, 68 Necessary and Proper Clause, New Equal Protection, 453 New London, 85–86 Nineteenth Amendment, 21, 78, 526 Ninth Amendment, 14, 388 Nixon, Richard M and affirmative action, 463 and busing controversy, 461 presidential papers of, Nude performances, as symbolic speech, 138–39 O’Brien, David Paul, 136 Obscenity, 124, 142–44 child pornography, 144 “indecent” television and radio programming, 150–51 Internet pornography, 144 Miller test, 143–44 prurient interest test, 143 O’Connor, Sandra Day on 2000 presidential election, 541 on abortion, 396, 397, 399 I–8 INDEX on affirmative action, 465–66, 468–69 on age discrimination, 476 on aid to religious schools, 225–26 on capital punishment of juveniles, 321 on cross burning, 135 on death penalty, 322 on desegregation, 462 on discrimination against disabled persons, 477 on gay rights, 404 on gender-based discrimination, 473 on McCain-Feingold Law, 543 on mental incompetence and death penalty, 321 on partisan gerrymandering, 540 on private discrimination, 485 on probable cause hearing, 299 on race-conscious redistricting, 535 on religious liberty, 215–16, 229 on sexual predators, 313 on takings issue, 84, 85–86 on tobacco advertising, 153 Old Order Amish, 220 Olmstead Roy, 287 Open fields exception, 288 Operation Rescue, 146 Otis, James, 286 Pacifica Foundation, 150 Parens patriae and juvenile justice, 326 religious liberty versus, 220–21 Partial-birth abortion, 399–400 Partisan gerrymandering, 540–41 Pat-down search, 292 Patently offensive material, 143 Patriotic rituals, and religious liberty, 218–20 Peckham, Rufus, 76 Pentagon papers case, 126, 127 Peremptory challenges, 311 Peter, Forest, 211 Peyote, use of, in Native American Church, 215–16 Pichardo, Ernesto, 217 Picketing, 124 Planned Parenthood, 390 Plea bargaining, 307–8 Plessy, Homer, 458 Police, use of force by, 299 Police deception, 302 Police interrogation, 300–3 deception in, 302 Miranda warnings, 301–2 Police power, 68, 71, 72, 73, 76–77, 83, 84 Political action committees, 543 Political association, freedom of, 158 Political dissent, Political equality, 526 Political parties and electoral fairness, 539–42 partisan gerrymandering, 540–41 white primary, 528–29 Poll taxes, 27, 526, 529–30 Polygamy, and religious liberty, 214 Popular sovereignty, 526 Pornography child, 144 hard-core, 142, 143 on Internet, 144 Poverty, and discrimination, 478–80 Powell, Lewis on abortion, 397, 479–80 on affirmative action, 464, 465, 468 on commercial advertising, 152 on gay rights, 403 on gender-based discrimination, 471, 473 on public school funding, 479 on Tenth Amendment, 15 Preate, Ernest, Jr., 398 Preclearance, 530 Preferred freedoms, 124 Presidential Recordings and Materials Preservation Act, Press broadcast media editorializing on public television and radio, 151 “indecent” television and radio programming, 150–51 commercial advertising, 151–54 freedom of, 9, 10, 123 (see also Expressive freedom) imminent lawless action versus, 133 incorporation of, 123–24 as preferred freedom, 124 libel, 139–42 obscenity, 142–44 pretrial publicity, problem of, 308–9 rule against prior restraint, 125–26 Presumption of constitutionality, 28, 455 Pretrial detention, 14, 306 Pretrial proceedings, closure of, 309 Pretrial publicity, problem of, 308–9 Pretrial release, 13, 306 Prior restraint, prohibition of, 125–27 Prisoners, rights of, 316–17 Privacy, constitutional right of, 386 abortion controversy, 393–400 constitutional basis for, 19, 386, 387–89 Fourteenth Amendment basis for, 19 and gay rights, 402–4 and helmet and seat belt laws, 405 invasion of, 141–42 and living arrangements, 401 philosophical foundations of, 386–87 procreation and birth control, 389–92 and recreational drug use, 405 refusal of medical treatment and right to die, 406–8 and victimless crimes, 405 Private discrimination, 483–85 Privileges and Immunities Clause, 17–18, 74 Probable cause, 287, 288–89 Probable cause hearing, 298 Procedural due process, 12 Procreation, and privacy rights, 389–92 Proctor, William, 319 Profanity, 124, 135, 150 Profiling, searches based on, 292–93 Progressive, The, 126 Promise Scholarship, 217 Property forfeiture of, 14 private, 68 See also Property rights Property rights, 68, 85–87 and Contract Clause, 70–73 and economic due process, 73–82 equal protection and economic regulation, 82–83 evolving judicial perspectives on, 68–69 Fifth Amendment protection of, 11–12, 68 freedom of expression versus, 86–87 and takings issue, 83–87 Proportionate representation, 532–33 Proposition 209 (California), 467, 468 Prosecutions, successive state and federal, 312–13 Protestantism, fundamentalist, 228 PruneYard Shopping Center, 86–87 Prurient interest test, 143 INDEX Public accommodations statute, 485 See also Association, freedom of Public education See Education Public employees and beneficiaries, rights of, 154–57 Public forum expressive activities in, 145–49 what constitutes, 147 Public Health Cigarette Smoking Act, 153 Public office, prohibition of religious tests for, Public persons, libel suits brought by, 140–41 Public property, Christmas displays on, 230–31 Public safety exception, 301–2 Public television and radio, editorializing on, 150 Public use, 83 Public Use Clause, 84, 85 Punishments, cruel and unusual, 14 Punitive isolation, 316 Pure speech, 124 Pusch, Marry Ane, 322 Quarles, Benjamin, 301–2 Quinlan, Karen, 406 Race-conscious remedies, 463, 532–33, 534–35 Racial discrimination and busing controversy, 460–62 and death penalty, 320 Jim Crow laws, 457–58 in public accommodations, 485 in religious schools, 232–33 and suspect classification doctrine, 455–56 in voting rights, 527–35 Racial equality, struggle for, 457–62 affirmative action, 463–69 de jure racial segregation, decline of, 458–59 desegregation, 459 Equal Protection Clause, 457 Jim Crow laws, 457 separate but equal doctrine, 457–58 Racially-motivated peremptory challenges, 311 Racial gerrymandering, 530, 534, 535 Racial segregation See Segregation Radio “indecent” programming on, 150–51 public, editorializing on, 151 Rational basis test, 28, 454 Reagan, Ronald and abortion, 156, 396 assassination attempt on, 155 on school prayer, 227 on tuition tax credits, 233 on Voting Rights Act, 531 Reapportionment, 536–39 Reasonable doubt standard, 310 Reasonable suspicion, 292 Recreational drugs, private use of, 405 Redeeming social importance, 143 Reed, Stanley, 529 Registration laws, sexual offenders and, 313–14 Rehabilitation Act, 476 Rehnquist, William on 2000 presidential election, 541 on abortion, 396, 397, 399 on affirmative action, 464, 465–69 on aid to religious schools, 225–26 on anti-abortion demonstrations, 146–47 on bail and pretrial detention, 306 on civil forfeitures, 314 on commercial advertising, 152 on death penalty, 319 on due process, on First Amendment freedoms, 124 on flag burning, 138 on Fourth Amendment, 11 on gay rights, 404 on gender-based discrimination, 472–73, 474 on good-faith exception, 296, 297 on habeas corpus, 6, 324, 325 on heightened scrutiny, 456 on imminent lawless action standard, 133 on “indecent” television programming, 150 on informants, 289 on juvenile justice, 326 on mental incompetence and death penalty, 321 on nude dancing, 139 on probable cause hearing, 299 on public figures, 141 on race-conscious redistricting, 534–35 on racial gerrymandering, 535 on religious liberty, 217–18, 219 on restrictive covenants, 484 on right to counsel, 304 on right to die, 407, 408 I–9 on school desegregation, 460, 461 on speech rights of public employees, 155 on state action, 21 takings issue under, 84–86 on tuition tax credits, 233 on unanimity principle, 310 on zoning regulations, 148–49 Released-time programs, 224 Religion, defining, 211–12 Religion Clauses, 9, 210–11 See also Establishment Clause; Free Exercise Clause Religious beliefs, governmental affirmations of, 229–31 Religious Freedom Restoration Act (RFRA), 216–17 Religious liberty, 210, 234 defining religion, 211–12 and door-to-door solicitation, 212–13 and drug use, 215–16 and education, 223–29 evolution-creationism conflict, 228–29 parens patriae versus, 220–21 and patriotic rituals and civic duties, 218–20 school prayer controversy, 210, 226–28, 232 separation of church and state, 221–23 and tax exemptions, 231–33 time, place, and manner regulations, 213 unconventional practices, 213–18 Religious practices, unconventional, 213–18 Religious schools child benefit theory, 224 government assistance for, 224–26 racial discrimination in, 232–33 tax exemptions for, 231–33 Religious speech, 212–13 Religious tests, prohibition of, for public office, Representation See Elections; Voting rights Representative democracy, 526 Residency, and discrimination, 478 Restrictive covenants, 484 Revolutionary Age, The, 130 Right of privacy, 19 Right to die, and privacy rights, 406–8 Roberts, John on death penalty, 322 and exclusionary rule, 297 I–10 INDEX on First Amendment freedoms, 124 on military recruitment in higher-learning institutions, 157 Roberts, Owen J., 79, 80 Roe, Jane, 393 Roosevelt, Franklin D Court-packing plan, 80 Rosenburg, Ethel, Rosenberg, Julius, Rotary Club, 485 Rutledge, Wiley, 223–24 Same-sex marriage, 482–83 Sanford, Edward T., 78, 129, 130 Santeria, 217 Sarivola, Anthony, 303 Scalia, Antonin on 2000 presidential election, 541 on abortion, 396, 399 on affirmative action, 465, 467, 469 on aid to religious schools, 225–26 on anti-abortion demonstrations, 147 on capital punishment for juveniles, 322 on exclusionary rule, 297 on flag burning, 138 on gay rights, 403, 404, 481 on gender-based discrimination, 474 on hate speech, 134 on “indecent” television programming, 150 on independence of court, 544 on mental incompetence and death penalty, 321 on nude dancing, 139 on prisoners’ rights, 317 on privacy rights, 387 on probable cause hearing, 299 on racial gerrymandering, 535 on religious liberty, 215, 218 on sexual predators, 313 on speech rights of public employees and contractors, 155, 156 on takings issue, 84–85 Scarcity theory, 150 Schenck, Charles T., 128 Schiavo, Terry, 408 School attendance, compulsory, 220–21 School prayer, 210, 226–28, 232 School prayer amendment, 227 Schools See Education; Religious schools Scopes, John T., 228 Scopes trial, 228 Search and seizure, 286–94 automobile searches, 291–92 confidential and anonymous informants, 289–90 consent searches, 291 incident to lawful arrest, 290 investigatory detention, 292–94 knock-and-announce requirement, 290 probable cause, 288–89 reasonable expectations of privacy, 287–88 stop and frisk, 292 thermal imagers, 288 unreasonable, protection against, 11 warrantless searches, 290–92 warrant requirement, 289 Search based on consent, 291 Search incidental to a lawful arrest, 290 Search warrants, 289, 290 Seat belt laws, and privacy rights, 405 Second Amendment, 10, 24 Secular humanism, 228 Sedition Act, 123 Seditious speech, 124 Seeger, Daniel, 211 Segregation de facto, 483 de jure, decline of, 458–59 protests against, 145–46 separate but equal doctrine, 458 Seigan, Bernard, 88 Selective incorporation, 23–25 Self-incrimination, compulsory, protection against, 11–12 Self-representation, in criminal cases, 305 Separate but equal doctrine, 457–58 Set-aside policy, 464, 465–66 Seventeenth Amendment, 526 Seventh Amendment, 12–13, 24, 308 Seventh Day Adventist, 214 Sex discrimination See Gender-based discrimination Sexual harassment, 470 Sexual orientation, discrimination based on, 481–83 Sexual offenders, registration laws, 313–14 Sexual predators, confinement in mental institutions, 313 Sheppard, Sam, 308–9 Sherbert, Adelle, 214 Silver platter doctrine, 295 Sixth Amendment, 12 right to counsel, 12, 303–5 right to jury trial, 12, 25, 308, 309 Slavery Fourteenth Amendment and, 17, 20 Thirteenth Amendment and, 16–17 See also Fifteenth Amendment; Fourteenth Amendment; Thirteenth Amendment Smith, Alfred, 215, 216 Smith Act, 131, 158 Social contract theory, 68 Social Darwinism, 76 Socialist Party, 129, 130 Sodomy laws, 402–4 Solicitation, by attorneys, 153–54 Solomon Amendment, 157 Souter, David on 2000 presidential election, 541 on abortion, 399 on age discrimination, 476 on aid to religious schools, 225–26, 229 on desegregation, 462, 466, 467 on exclusionary rule, 297 on Federal Election Campaign Act, 543 on gay rights, 159 on McCain-Feingold Law, 543 on nude dancing, 139 on race-conscious redistricting, 535 on religious displays on public property, 231 on sexual predators, 313 on takings issue, 85 on tuition tax credits, 233 on whistleblowers, 155–56 South Boston Allied War Veterans Council, 159 Speech commercial, 151–54 fighting words, 125, 134 freedom of, 9, 10, 123 (see also Expressive freedom) and clear and present danger test, 128 and imminent lawless action, 133 incorporation of, 123–24 as preferred freedom, 124 hate, 134–35 and obscenity, 142–44 profanity, 135 of public employees and beneficiaries, 154–57 pure, 124 religious, 212 Copyright 2008 Thomson Learning, Inc All Rights Reserved May not be copied, scanned, or duplicated, in whole or in part INDEX symbolic, 136–39 Spencer, Herbert, 76 Stanton, Elizabeth Cady, 26 Starr, Kenneth W., 398 State action doctrine, 457 and Fourteenth Amendment, 20–21 State constitutions abortion rights under, 400 civil rights and liberties in, 29–30 State courts, 29–30 sodomy laws and, 403 States criminal cases, federal habeas corpus review of, 323–24 powers of police powers, 71, 72, 73, 76–77 to prohibit private discrimination, 484–85 Sterilization, compulsory, 389 Stevens, John Paul on 2000 presidential election, 541 on abortion, 398–99 on affirmative action, 464, 465, 466–67 on age discrimination, 476 on aid to religious schools, 225–26 on automobile searches, 291, 294 on Bill of Rights protections of accused, 285 on civil forfeitures, 314 on commercial advertising, 152–53 on criminal justice, 285 and discrimination based on sexual orientation, 485 on exclusionary rule, 297 on flag burning, 138 on Fourteenth Amendment, 18 on gay rights, 402 on heightened scrutiny, 456 on “indecent” radio programming, 150 on Internet pornography, 144 on McCain-Feingold Law, 543 on mental incompetence and death penalty, 321 on nude dancing, 139 on prurient interest test, 144 on race-conscious redistricting, 535 on reapportionment, 538 on religious liberty, 229 on school desegregation, 462 on speech rights of public employees, 155 on takings issue, 85 on tuition tax credits, 233 on whistleblowers, 155–56 Stewart, Potter on abortion, 396, 480 on affirmative action, 464, 465 on civil rights demonstrations, 145 on Contract Clause, 72 on death penalty, 318 on Ninth Amendment, 14–15 on pretrial publicity, 309 on privacy rights, 288 on prurient interest test, 143 on school prayer, 225–26 on Thirteenth Amendment, 16 on warrantless searches, 290–91 Stone, Harlan Fiske on economic due process, 80 on political participation, 527 on rational basis test, 455 Stop and frisk, 292 Street, Sidney, 137 Strict judicial scrutiny, 25, 455 Strict neutrality, 230 Strict scrutiny, 28 Student newspapers, and prior restraint, 127 Subjective voluntariness, 300 Subpoena, 12 Substantive due process, 12, 72 origins of, 73–74 and privacy rights, 388–89 as restriction on economic legislation, 78, 81 Suffrage, universal, 526 Suicide doctor-assisted, 407–8 right to die, 406–8 Sullivan, L B., 140 Sumner, William Graham, 76 Sunday closing laws, 230 Supervisory power, 295 Suspect classification doctrine, 454–56 Sutherland, George, 78, 79, 81, 304 Symbolic speech flag burning, 137–38 flag salute controversy, 136 nude performances as, 138–39 in Vietnam era, 136–37 Taft, William Howard on economic due process, 78, 80 on privacy rights, 287 on successive state and federal prosecutions, 312 Takings Clause, 85, 86 Takings issue, and property rights, 83–87, 480 Taliban, Taney, Roger B on Contract Clause, 71–72 on Fifth Amendment, 12 I–11 Taxation, exemptions, and religious liberty, 231–33 poll taxes, 27, 526, 529–30 Taxman, Sharon, 467–68 Taylor, Robert, 460 Television “indecent” programming on, 150–51 public, editorializing on, 151 Tenth Amendment, 15 Terrorism, 293 Thermal imagers, 288 Third Amendment, 11, 24, 387 Thirteenth Amendment, 16–17, 128 Thomas, Clarence on 2000 presidential election, 541 on abortion, 399 on affirmative action, 466, 467 on aid to religious schools, 225–26 on anti-abortion demonstrations, 147 on commercial advertising, 153 on death penalty, 322 on gay rights, 404 on “indecent” television programming, 150 on mental incompetence and death penalty, 321 on prisoners’ rights, 317 on racial gerrymandering, 535 on religious liberty, 218 on school desegregation, 462 on search warrants, 290 on sexual predators, 313 on speech rights of public employees and contractors, 155, 156 on taking issue, 85–86 Three Strikes law, 315 Time, place, and manner regulations, 147–49, 213 Tinker, John, 137 Tinker, Mary Beth, 137 Tobacco advertising, 153 Totality of circumstances, 289 Treason, 4–5 Tribe, Laurence, 542 Trial by jury See Jury trial Trimester framework, 396 Tuition tax credits, 233 Twenty-first Amendment, 152 Twenty-fourth Amendment, 27, 526 Twenty-sixth Amendment, 27, 526 Tyranny of the majority, 526 Unalienable rights, Unanimity rule, 310 I–12 INDEX democratization of, 526–27 U.S Congress enforcement powers under Fourteenth Amendment, 21–22 modification of federal habeas corpus procedure, 325 reapportionment, 538 U.S Constitution article on treason, U.S Supreme Court corporate influence on, 75–76 and economic due process, early resistance to, 74–75 rule against prior restraint, 125–26 See also Judicial activism; Judicial restraint Universal Military Training and Service Act, 211 Van Devanter, Willis, 79 Venue, change of, 309 Verdicts, nonunanimous, 310 Vested rights, 72 Viability, of fetus, 394 Victim impact statements, 319 Victimless crimes, and privacy rights, 405 Vietnam War and symbolic speech, 136–37 Vinson, Fred M., 132, 459 Violence Against Women Act, 22 Violent Crime Control and Law Enforcement Act, 320 Virginia Military Institute (VMI), 473–74 Vote dilution, 534 Voting Accessibility Act, 476 Voting age, 27 Voting rights, 526, 544 and Fifteenth Amendment, 26 and Nineteenth Amendment, 26 racial discrimination in, 527–35 at-large elections, 531–32 challenges to judicial election systems, 533–34 grandfather clauses, 528 literacy tests, 529 poll taxes, 529–30 racial gerrymandering, 530, 532 white primary, 528–29 racially proportionate representation, problem of, 532–33 and reapportionment, 536–39 and Twenty-fourth Amendment, 27 and Twenty-sixth Amendment, 27 Voting Rights Act of 1965, 26, 541 impact of, 26, 530–31 and literacy tests, 529 and challenges to judicial election systems, 533 effects test under, 532 Wade, Henry, 393 Waite, Morrison R., 18, 75, 76, 214 Wallace, George, 461, 531 Walz, Frederick, 232 Warrant arrest, 298 general, 289 search, 289, 290 Warrantless arrests, 298 Warrantless searches, 290–91 of automobiles, 291–92 consent, 291 stop and frisk, 292 Warrant requirement, 288–89 Warren, Earl on civil rights demonstrations, 146 on compelling government interest, 214–15 on criminal rights, 24, 304 on cruel and unusual punishment, 14, 317 on exclusionary rule, 295 on flag burning, 137 on habeas corpus review, 6, 323–24 on imminent lawless action standard, 133 on obscenity, 143 on political association, 158 on reapportionment, 537 on school desegregation, 459 on Sunday closing laws, 230 on symbolic speech, 137 on voting rights, 525, 531 on wealth-based discrimination, 478 on wiretapping, 11 Washington, Bushrod on Fourteenth Amendment, 17–18 Washington Constitution, 217, 218 Wealth-based discrimination, 478–80 Weddington, Sarah, 393 Whistle blowing, 155–56 White, Byron on abortion, 397, 398, 399 on affirmative action, 464 on automobile detention, 293–94 on birth control, 391 on death penalty, 319 on discrimination against disabled persons, 477 on gay rights, 402 on jury size, 309 on nude dancing, 139 on obscenity, 143–44 on Pentagon papers case, 127 on police deception, 303 on press freedom, 127 on race-conscious redistricting, 534 on racially neutral policies, 456 on speech rights of public employees, 155 on unanimity principle, 310 on zoning regulations, 148 White, Vanessa, 293 White primary, 27, 528–29 Whitney, Charlotte Anita, 130 Wilson, Woodrow, 26 Wiretapping, 11, 287 Women indigent, abortion funding restrictions for, 479–80 right to vote, 26, 78, 526 See also Abortion; Gender-based discrimination World Wide Web (WWW), 144 See also Internet Writ of habeas corpus, 5–6 federal review of state criminal cases, 323–25 Yellow dog contracts, 77 Zoning regulations, and freedom of assembly, 148–49 [...]... equal before the law, equal before the state, and equal in their possession of rights The term civil rights, as distinct from civil liberties, is generally used to denote citizens’ equality claims, as distinct from their liberty claims The subject matter of civil rights and liberties is far ranging, touching on most contemporary social, political, and economic issues School prayer, gay rights, abortion,... doctor-assisted suicide, and affirmative action are a few of the more salient policy questions the courts have addressed in recent years in disputes over the meaning of particular civil rights and liberties protections The Supreme Court’s rulings on such issues comprise a major aspect of contemporary American constitutional law and, accordingly, are the subject of Volume II of this textbook RIGHTS RECOGNIZED... stuck down the Civil Rights Act of 1875 By prohibiting private discrimination, Congress had exceeded its enforcement powers under Section 5 In the Civil Rights Acts of 1870 and 1871, respectively, Congress provided criminal and civil penalties for civil rights violations perpetrated “under color of state law. ” This language allowed individuals to be found liable for violating the civil rights of others,... of law with due regard for the 12 VOLUME 2 CIVIL RIGHTS AND LIBERTIES rights and interests of individuals The roots of due process can be traced to Magna Carta (1215), which provided that “No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful... emergency CHAPTER 1 CONSTITUTIONAL SOURCES OF CIVIL RIGHTS AND LIBERTIES 9 • Two provisions of the original Constitution protect certain individual rights against both federal and state encroachment These are the prohibitions of ex post facto laws and bills of attainder • The Contracts Clause of Article I, Section 10, imposes limitations on state interference with contractual rights and obligations In... COURT IN WEST VIRGINIA BOARD OF EDUCATION V BARNETTE (1943) 1 CONSTITUTIONAL SOURCES OF CIVIL RIGHTS AND LIBERTIES Chapter Outline “[H]istory makes clear that Introduction constitutional principles of equality, Rights Recognized in the Original Constitution like constitutional principles of liberty, property, and due process, The Bill of Rights evolve over time; what once was a The Thirteenth Amendment... Fourteenth Amendment Image not available due to copyright restrictions ‘natural’ and ‘self-evident’ ordering Nationalization of the Bill of Rights later comes to be seen as an artificial Amendments Protecting Voting Rights and invidious constraint on human potential and freedom.” Standards of Review in Civil Rights and Liberties Cases —JUSTICE THURGOOD MARSHALL, The Importance of State Constitutions... the Civil Rights Act of 1866, the first in a series of important federal civil rights statutes The Act guaranteed that the newly freed former slaves would not be denied basic economic freedoms and property rights or access to the courts to enforce these rights In 1875, Congress passed another civil rights statute, one specifically aimed at racial discrimination by privately owned hotels, taverns, and. .. of the Fourteenth Amendment in numerous landmark decisions expanding the rights of persons accused of crimes, prisoners, public school students, public employees, and even welfare beneficiaries Thus, while there is no constitutional right to receive welfare assistance, government may not terminate a person’s welfare benefits without 20 VOLUME 2 CIVIL RIGHTS AND LIBERTIES observing certain procedural... contained few explicit protections of individual rights This was not because the Framers did not value rights, but because they thought it unnecessary to deal with them explicitly Significantly, most of the state constitutions adopted during the American Revolution contained fairly detailed 4 VOLUME 2 CIVIL RIGHTS AND LIBERTIES bills of rights placing limits on state and local governments The Framers did not ... graduate and undergraduate courses in American government, constitutional law, civil rights and liberties, administrative law, criminal law and procedure, the judicial process, and law in American. .. Stephens, Jr., and Kara E Stooksbury, An Encyclopedia of American Civil Rights and Liberties (2006) CONTENTS Preface Chapter Constitutional Sources of Civil Rights and Liberties Introduction Rights. .. both state and federal elections 28 VOLUME CIVIL RIGHTS AND LIBERTIES STANDARDS OF REVIEW IN CIVIL RIGHTS AND LIBERTIES CASES The Supreme Court has developed several different standards of review