Constitutional Law — Structure, Federalism, Rights, Judicial Review

The U.S. Constitution is simultaneously a charter of government and a charter of individual rights:

• Charter of government — allocates power among three federal branches and between the federal government and the states.
• Charter of individual rights — limits what government may do to persons within its jurisdiction.

Constitutional Law as a doctrinal field covers:

• The Articles (I–VII) and the structural framework they establish.
• The Bill of Rights (Amendments I–X, 1791) and the Reconstruction Amendments (XIII–XV, 1865–1870).
• The other amendments adding rights or modifying structure (XVI income tax, XVII direct Senate election, XIX women’s suffrage, XXIV poll-tax abolition, XXVI 18-year-old vote, etc.).
• The methodologies the Supreme Court has developed to interpret all of the above.
• The body of case law applying these provisions to concrete disputes.

The Constitution was drafted in 1787, ratified in 1788, took effect in 1789, and has been amended 27 times. It is the shortest written national constitution in the world (approximately 4,500 words plus amendments) and one of the oldest still in force.

This note is a reference for the field’s contours as of the 2025–2026 term: the structural provisions and their doctrinal elaborations, the major rights doctrines, the modern interpretive moves, and the leading cases.

Part I — Structure of Government

1. Article I — The Legislative Branch

Article I vests “All legislative Powers herein granted” in Congress, composed of the House (Art. I, § 2 — biennial, proportional to state population, age 25) and Senate (Art. I, § 3 — two per state, six-year staggered terms, age 30; originally appointed by state legislatures; popular election since the Seventeenth Amendment (1913)).

1.1 Enumerated Powers (Art. I, § 8)

Congress may exercise only the powers enumerated (and those necessary and proper to carry them into execution). The major enumerated powers:

• Taxation — § 8, cl. 1, “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare.”
• Borrowing — § 8, cl. 2.
• Commerce — § 8, cl. 3, “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
• Naturalization and bankruptcies — § 8, cl. 4.
• Coinage and weights/measures — § 8, cl. 5.
• Counterfeiting — § 8, cl. 6.
• Post offices and post roads — § 8, cl. 7.
• Intellectual property — § 8, cl. 8 (patents and copyrights, the Patent and Copyright Clause).
• Inferior tribunals — § 8, cl. 9.
• Piracies and offenses on the high seas — § 8, cl. 10.
• War-declaration — § 8, cl. 11.
• Armies and navies — § 8, cls. 12–14.
• Militia — § 8, cls. 15–16.
• District of Columbia — § 8, cl. 17.
• Necessary and Proper Clause — § 8, cl. 18 (“to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”).

Powers expressly denied to Congress (Art. I, § 9):

• Suspension of habeas corpus except in rebellion or invasion.
• Bills of attainder.
• Ex post facto laws.
• Direct taxes except apportioned by population (modified by 16th Amendment for income tax).
• Export taxes.
• Preference for ports of one state over another.
• Titles of nobility.

1.2 The Commerce Clause — Doctrinal Arc

The most litigated of the enumerated powers. Its doctrinal history runs through four major periods:

1. Marshall expansion:
   • Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) — broad reading of commerce as intercourse (steamboat licensing).
   • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) — though not a commerce case, established the implied-powers reading of the Necessary and Proper Clause that supports broad federal commerce regulation.
   • “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
2. Lochner-era restriction — late 19th/early 20th century: production/manufacturing distinguished from commerce.
   • United States v. E.C. Knight Co., 156 U.S. 1 (1895) — sugar refining not commerce.
   • Hammer v. Dagenhart, 247 U.S. 251 (1918) — child labor.
   • Schechter Poultry, 295 U.S. 495 (1935) — NIRA struck down; intrastate poultry not commerce.
   • Carter v. Carter Coal Co., 298 U.S. 238 (1936) — coal mining not commerce.
3. New Deal expansion:
   • NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) — labor relations of large manufacturer affect interstate commerce.
   • Wickard v. Filburn, 317 U.S. 111 (1942) — wheat grown for personal consumption regulable because aggregate effect on interstate commerce. “Substantial effects” / aggregation principle.
   • Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964) — sustained Title II of the Civil Rights Act of 1964 under commerce.
   • Perez v. United States, 402 U.S. 146 (1971) — federal loansharking statute.
   • Gonzales v. Raich, 545 U.S. 1 (2005) — federal Controlled Substances Act applies to medical marijuana grown for personal use; Wickard extended.
4. Modern limits:
   • United States v. Lopez, 514 U.S. 549 (1995) — Gun-Free School Zones Act struck down; possession of guns near schools not economic. Three categories of commerce regulation: (i) channels, (ii) instrumentalities and persons or things, (iii) activities substantially affecting interstate commerce.
   • United States v. Morrison, 529 U.S. 598 (2000) — Violence Against Women Act civil remedy struck down; gender-motivated violence not economic.
   • NFIB v. Sebelius, 567 U.S. 519 (2012) — Affordable Care Act individual mandate exceeded commerce power (cannot regulate inactivity), but survived as a tax (5-4).
   • NFIB v. OSHA, 595 U.S. 109 (2022) — staying OSHA vaccine-or-test ETS on major-questions grounds rather than commerce.

1.3 Spending and Taxing Power

• Spending — United States v. Butler, 297 U.S. 1 (1936) — broad view of spending power adopted in dicta though AAA struck on other grounds. South Dakota v. Dole, 483 U.S. 203 (1987) — federal conditioning of 5% of highway funds on state adoption of drinking age 21 upheld; conditions must (i) be for general welfare, (ii) be unambiguous, (iii) relate to federal interest, (iv) not violate independent constitutional bar, and (v) not be so coercive as to compel rather than encourage. NFIB v. Sebelius (2012) found the ACA’s Medicaid-expansion provision coercive — withholding all existing Medicaid funds for refusing to expand “is a gun to the head.”
• Taxing power — NFIB v. Sebelius (2012) — individual mandate sustained as exercise of tax power; characteristics: paid into Treasury, collected by IRS, computed by reference to income, modest amount.

1.4 Other Article I Topics

• War Powers — Congress declares war; broad authority to regulate during war. Korematsu v. United States, 323 U.S. 214 (1944), repudiated as a matter of moral and constitutional judgment by Trump v. Hawaii, 585 U.S. 667 (2018); never formally overruled until Trump v. Hawaii’s repudiation.
• Treaty implementation — Congress implements through legislation under necessary and proper plus subject-matter powers.
• Bankruptcy — uniform laws on the subject (Title 11 U.S.C.).

2. Article II — The Executive Branch

Vests “the executive Power” in a President of the United States (Art. II, § 1).

2.1 Powers

• Commander in Chief (§ 2, cl. 1) — military command authority.
  • Limited by War Powers Resolution (1973) — 60-day cap on hostilities without congressional authorization (compliance disputed by every president since).
• Appointments (§ 2, cl. 2):
  • With advice and consent of Senate for principal officers.
  • Congress may vest appointment of “inferior officers” in the President alone, the courts of law, or heads of departments.
  • Recess appointments — NLRB v. Noel Canning, 573 U.S. 513 (2014), narrowed.
• Treaty-making with two-thirds Senate concurrence.
  • Executive agreements as alternative; United States v. Belmont, 301 U.S. 324 (1937); Dames & Moore v. Regan, 453 U.S. 654 (1981).
• Pardons for federal offenses (except impeachment).
  • Comprehensive; reviewable in very limited circumstances.
  • Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867); Schick v. Reed, 419 U.S. 256 (1974).
• Foreign affairs — United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) — the President as “sole organ” of foreign policy. Much-criticized but persistent.
  • Zivotofsky v. Kerry, 576 U.S. 1 (2015) — exclusive presidential recognition power.
• Take Care Clause (§ 3) — “he shall take Care that the Laws be faithfully executed.”
  • Source of enforcement discretion, including immigration deferred-action programs (United States v. Texas, 599 U.S. 670 (2023)).
• Executive orders — directives within the President’s constitutional or delegated authority. Reviewable for compliance with statutory and constitutional limits.

2.2 Appointments and Removal

• Appointments — Buckley v. Valeo, 424 U.S. 1 (1976); Morrison v. Olson, 487 U.S. 654 (1988) — independent counsel an “inferior officer.” Lucia v. SEC, 585 U.S. 237 (2018) — SEC ALJs are inferior officers, must be properly appointed.
• Removal — Article II reserved silence; doctrine has zigzagged:
  • Myers v. United States, 272 U.S. 52 (1926) — broad presidential removal of executive officers.
  • Humphrey’s Executor v. United States, 295 U.S. 602 (1935) — for-cause removal protection for FTC commissioners (quasi-legislative/quasi-judicial) constitutional.
  • Morrison v. Olson, 487 U.S. 654 (1988) — for-cause protection for independent counsel constitutional.
  • Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010) — two layers of for-cause protection unconstitutional.
  • Seila Law LLC v. CFPB, 591 U.S. 197 (2020) — single-director independent agency with for-cause removal unconstitutional.
  • Collins v. Yellen, 594 U.S. 220 (2021) — FHFA director similarly.

2.3 Executive Privilege

United States v. Nixon, 418 U.S. 683 (1974) — qualified executive privilege exists in constitutional dimension, but must yield to specific, demonstrated need in criminal proceedings. Trump v. Mazars, 591 U.S. 848 (2020) — congressional subpoenas of presidential records; balancing test.

2.4 Immunity

Nixon v. Fitzgerald, 457 U.S. 731 (1982) — absolute civil immunity for official acts. Clinton v. Jones, 520 U.S. 681 (1997) — no temporary immunity for unofficial acts. Trump v. United States, 603 U.S. ___ (2024) — presidential immunity from criminal prosecution: absolute for “core constitutional powers,” presumptive immunity for other “official acts,” none for “unofficial acts.”

2.5 Impeachment

Article I, §§ 2 (House impeaches by majority) and 3 (Senate convicts by 2/3); Article II, § 4 (treason, bribery, or other high crimes and misdemeanors). Used 4 times against presidents (Johnson 1868, Clinton 1998, Trump 2019 and 2021; none resulted in conviction). Nixon v. United States, 506 U.S. 224 (1993) — challenges to Senate procedure non-justiciable.

3. Article III — The Judicial Branch

Vests “the judicial Power” in “one supreme Court” and inferior courts Congress may establish (Art. III, § 1). Article III courts hear only “Cases” and “Controversies” within nine enumerated heads of jurisdiction.

3.1 Justiciability

• Standing — Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) — constitutional minimum:
  1. Injury in fact — concrete, particularized, actual or imminent (not conjectural or hypothetical).
  2. Causation — traceable to defendant’s conduct.
  3. Redressability — by a favorable decision.
  • Concreteness for statutory rights — Spokeo, Inc. v. Robins, 578 U.S. 330 (2016); TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) — Article III injury requires real harm even when statute creates cause of action.
  • Prudential additions: zone of interests, generalized grievances, third-party standing limits.
  • Taxpayer standing — generally barred (Frothingham v. Mellon, 262 U.S. 447 (1923)); narrow Establishment Clause exception in Flast v. Cohen, 392 U.S. 83 (1968), nearly closed by Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), and Arizona Christian School Tuition Org. v. Winn, 563 U.S. 125 (2011).
  • Organizational — Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977).
  • State standing — Massachusetts v. EPA, 549 U.S. 497 (2007) — quasi-sovereign interests warrant “special solicitude”; United States v. Texas, 599 U.S. 670 (2023) — narrower.
  • Third-party standing — Singleton v. Wulff, 428 U.S. 106 (1976) — close relationship plus hindrance.
• Ripeness — claim must be sufficiently developed; Abbott Laboratories v. Gardner, 387 U.S. 136 (1967).
• Mootness — live controversy throughout; exceptions for capable-of-repetition-yet-evading-review (Roe v. Wade), voluntary cessation, class-action context (Sosna).
• Political question — Baker v. Carr, 369 U.S. 186 (1962) — six factors: textually demonstrable commitment to coordinate branch; lack of judicially manageable standards; impossibility of decision without prior policy determination unsuited to judicial discretion; impossibility of resolution without expressing lack of respect for coordinate branch; unusual need for unquestioning adherence to political decision; potentiality of embarrassment from multifarious pronouncements.
• Advisory opinions — barred since 1793; courts decide concrete disputes.

3.2 Congressional Control of Jurisdiction

• Original jurisdiction — Art. III, § 2, cl. 2 — limited categories; Marbury v. Madison held Congress cannot expand.
• Appellate jurisdiction — Congress sets exceptions and regulations; Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) — Congress may strip jurisdiction.
• Lower-court jurisdiction — Congress may create or abolish lower courts and define their jurisdiction.

4. Federalism

4.1 Reserved Powers — Tenth Amendment

“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.”

• Anti-commandeering doctrine:
  • New York v. United States, 505 U.S. 144 (1992) — Congress may not “commandeer” state legislatures by directly compelling them to enact and enforce a federal regulatory program. Low-level radioactive waste statute’s “take title” provision struck.
  • Printz v. United States, 521 U.S. 898 (1997) — Congress may not commandeer state executive officials (Brady Act background checks).
  • Murphy v. NCAA, 584 U.S. 453 (2018) — federal Professional and Amateur Sports Protection Act struck down for commandeering by prohibiting state authorization of sports gambling.
• Conditioned spending coercion limit — NFIB v. Sebelius (2012) — Medicaid expansion as discussed above.
• Sovereign immunity — Eleventh Amendment bars federal-court suits against states for damages.
  • Hans v. Louisiana, 134 U.S. 1 (1890) — extended to suits by state’s own citizens.
  • Seminole Tribe v. Florida, 517 U.S. 44 (1996) — Congress may not abrogate under Article I; may under § 5 of the 14th Amendment for congruent and proportional remedies.
  • Alden v. Maine, 527 U.S. 706 (1999) — state sovereign immunity extends to state-court actions.
  • Ex parte Young — suits against state officials for prospective injunctive relief.

4.2 Preemption

Supremacy Clause (Art. VI, cl. 2). Three forms:

• Express preemption — statute explicitly displaces state law.
• Field preemption — federal scheme is so pervasive that it occupies the field (immigration, Arizona v. United States, 567 U.S. 387 (2012)).
• Conflict preemption — impossibility of compliance, or state law as obstacle to federal objectives.

4.3 Dormant Commerce Clause

Where Congress has not legislated, the Commerce Clause itself limits state regulation that burdens interstate commerce. Tiers:

• Discriminatory state laws — virtually per se invalid; survive only if state proves no non-discriminatory alternative serves a legitimate non-economic purpose (Maine v. Taylor, 477 U.S. 131 (1986)).
• Even-handed laws — Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) — balancing of incidental burden against local benefits. Modern application in National Pork Producers Council v. Ross, 598 U.S. 356 (2023) — California Prop 12 survived.
• Market participant doctrine — when state acts as market participant rather than regulator, dormant Commerce Clause does not apply.

4.4 Privileges and Immunities (Art. IV, § 2)

Prohibits states from discriminating against citizens of other states regarding fundamental rights (employment, access to courts). Toomer v. Witsell, 334 U.S. 385 (1948); Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).

4.5 Full Faith and Credit (Art. IV, § 1)

Each state must accord full faith and credit to public acts, records, and judicial proceedings of every other state. Williams v. North Carolina, 317 U.S. 287 (1942), 325 U.S. 226 (1945) — divorce jurisdiction.

5. Separation of Powers

• Legislative veto unconstitutional — INS v. Chadha, 462 U.S. 919 (1983) — one-house legislative veto of executive action violates bicameralism and presentment.
• Line-item veto unconstitutional — Clinton v. New York, 524 U.S. 417 (1998) — Line Item Veto Act of 1996 violated presentment.
• Non-delegation doctrine — in eclipse since A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). Subsequent congressional grants upheld under “intelligible principle” standard (J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)). Possibly being revived under the major questions doctrine framework.
• Steel Seizure case — Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
  • Truman’s seizure of steel mills during Korean War held unconstitutional.
  • Justice Jackson’s tripartite framework (concurrence; widely treated as authoritative):
    1. Category One — President acts with congressional authorization. Power at maximum.
    2. Category Two — congressional silence. Twilight zone; depends on concurrent congressional powers and inertia.
    3. Category Three — action contrary to congressional will. Power at “its lowest ebb.”
  • Framework deployed in Dames & Moore v. Regan, 453 U.S. 654 (1981); Medellin v. Texas, 552 U.S. 491 (2008); and modern cases involving executive orders.

6. Modern Administrative-Law Doctrines

• Major questions doctrine — West Virginia v. EPA, 597 U.S. 697 (2022) — agency action of “vast economic and political significance” requires clear congressional authorization.
  • Applied to strike Biden student-loan forgiveness in Biden v. Nebraska, 600 U.S. 477 (2023).
  • Applied to strike OSHA vaccine-or-test ETS in NFIB v. OSHA, 595 U.S. 109 (2022).
  • Roots in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), and Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).
• Chevron deference overruled — Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
  • Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), is overruled.
  • Courts independently determine the best reading of statutes; agencies do not get Chevron deference.
  • Skidmore v. Swift, 323 U.S. 134 (1944), respect remains.
  • Decided alongside Relentless, Inc. v. Department of Commerce.
• SEC v. Jarkesy, 603 U.S. 109 (2024) — Seventh Amendment right to jury trial bars SEC civil penalty enforcement before in-house ALJ; must go to Article III court.
• Corner Post v. Federal Reserve, 603 U.S. ___ (2024) — APA statute-of-limitations runs from plaintiff’s injury, not agency action.
• Non-delegation revival watch — Gundy v. United States, 588 U.S. 128 (2019), and American Hospital Association v. Becerra, 596 U.S. 724 (2022), signal possible revival of non-delegation doctrine; Justice Gorsuch’s Gundy dissent attracted three other Justices.

Part II — Individual Rights

7. Incorporation of the Bill of Rights

Fourteenth Amendment Due Process Clause “incorporates” most of the Bill of Rights against the states through “selective incorporation.” Currently incorporated:

• First Amendment (all clauses).
• Second Amendment (McDonald v. City of Chicago, 561 U.S. 742 (2010)).
• Fourth Amendment.
• Fifth Amendment (except grand jury indictment — Hurtado v. California, 110 U.S. 516 (1884)).
• Sixth Amendment (all clauses, including unanimous jury in Ramos v. Louisiana, 590 U.S. ___ (2020)).
• Seventh Amendment civil jury — not incorporated.
• Eighth Amendment (Cruel and Unusual Punishments incorporated; Excessive Fines incorporated Timbs v. Indiana, 586 U.S. 146 (2019)).

8. The First Amendment

“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.”

8.1 Free Speech — Doctrinal Architecture

Content-based regulation triggers strict scrutiny — government must show the regulation furthers a compelling interest and is narrowly tailored / least restrictive means.

• Reed v. Town of Gilbert, 576 U.S. 155 (2015), instructs that any classification on its face by topic is content-based.
• City of Austin v. Reagan National Advertising, 596 U.S. 61 (2022) — on-/off-premises sign distinction not facially content-based.

Content-neutral regulation triggers intermediate scrutiny — must further substantial governmental interest, unrelated to speech suppression, with restriction no greater than essential.

• United States v. O’Brien, 391 U.S. 367 (1968) — draft-card burning; four-part test.
• Ward v. Rock Against Racism, 491 U.S. 781 (1989) — sound-amplification regulation in Central Park.

Viewpoint discrimination is the most suspect form of content regulation and is virtually per se unconstitutional even in limited or nonpublic forums (Matal v. Tam, 582 U.S. 218 (2017); Iancu v. Brunetti, 588 U.S. 388 (2019)).

Overbreadth and vagueness — facial challenges permitted in First Amendment context (substantial overbreadth doctrine, Broadrick v. Oklahoma, 413 U.S. 601 (1973)).

Prior restraint — heavy presumption of unconstitutionality (Near v. Minnesota, 283 U.S. 697 (1931); New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713 (1971)).

Categorical exclusions — narrow categories of unprotected or low-value speech:

• Incitement — Brandenburg v. Ohio, 395 U.S. 444 (1969) — advocacy of illegal action is protected unless directed at and likely to produce imminent lawless action.
  • Replaced Schenck v. United States, 249 U.S. 47 (1919) (Holmes — clear and present danger); Dennis v. United States, 341 U.S. 494 (1951) (Communist Party leadership).
• Fighting words — Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) — face-to-face epithets likely to provoke breach of peace.
  • Nearly extinct as applied; SCOTUS has not affirmed a fighting-words conviction since Chaplinsky.
  • Cohen v. California, 403 U.S. 15 (1971) — “Fuck the Draft” on jacket protected.
• True threats — Watts v. United States, 394 U.S. 705 (1969); Virginia v. Black, 538 U.S. 343 (2003).
  • Counterman v. Colorado, 600 U.S. 66 (2023) — at least recklessness mens rea required.
• Obscenity — Miller v. California, 413 U.S. 15 (1973) — three-prong test:
  1. Average person applying contemporary community standards finds the work, taken as a whole, appeals to prurient interest.
  2. Work depicts or describes sexual conduct, specifically defined by state law, in patently offensive way.
  3. Work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
• Child pornography — New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990) (private possession). Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) — virtual child pornography not categorically excluded.
• Defamation — NYT v. Sullivan line, see torts note section on defamation.
• Fraud and speech integral to criminal conduct.

Stevens limits on new categories: United States v. Stevens, 559 U.S. 460 (2010) — government may not invent new categories of unprotected speech through a free-form balancing test; existing categories are historically rooted.

Hate speech — no separate categorical exclusion in U.S. law. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), invalidated cross-burning ordinance as content-discrimination among fighting words. Wisconsin v. Mitchell, 508 U.S. 476 (1993), upheld hate-crime sentence enhancement.

Commercial speech — Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557 (1980), four-part intermediate framework: (i) lawful activity, not misleading; (ii) substantial governmental interest; (iii) regulation directly advances that interest; (iv) not more extensive than necessary.

Symbolic speech — Texas v. Johnson, 491 U.S. 397 (1989) — flag burning protected; United States v. Eichman, 496 U.S. 310 (1990), affirmed against federal Flag Protection Act.

Time, place, and manner — content-neutral restrictions permitted in public forums where they are narrowly tailored, serve a significant government interest, and leave open ample alternative channels.

Public forum doctrine — Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983):

• Traditional public forum (streets, parks, sidewalks) — content-based regulation strict scrutiny.
• Designated public forum — same.
• Limited public forum — government may limit access by subject or speaker class; reasonable and viewpoint-neutral.
• Nonpublic forum — reasonable and viewpoint-neutral suffices.

Compelled speech — West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (flag salute); Wooley v. Maynard, 430 U.S. 705 (1977) (license plate motto); 303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (web designer for weddings — expressive activity, may decline same-sex wedding sites).

Government speech — government’s own speech not constrained by Free Speech Clause. Walker v. Texas Division, Sons of Confederate Veterans, 576 U.S. 200 (2015) (specialty license plates government speech). Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (monuments in city park).

Schools — Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) — students retain rights at the schoolhouse gate; armbands protected absent “material and substantial disruption.” Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (lewd speech); Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (school-sponsored newspaper); Morse v. Frederick, 551 U.S. 393 (2007) (“Bong Hits 4 Jesus”); Mahanoy Area School District v. B.L., 594 U.S. 180 (2021) — off-campus speech generally more protected.

Modern internet/platform cases:

• NetChoice v. Paxton / NetChoice v. Moody, 603 U.S. ___ (2024) — Texas and Florida social-media laws; partial remand, signaling First Amendment protection of platforms’ editorial discretion.
• Murthy v. Missouri, 603 U.S. ___ (2024) — standing dismissed in “jawboning” challenge to federal contacts with platforms.

8.2 Religion Clauses

Establishment Clause — long-standing tests, now in flux:

• Lemon v. Kurtzman, 403 U.S. 602 (1971) — three-prong test:
  1. Secular purpose.
  2. Primary effect neither advances nor inhibits religion.
  3. No excessive entanglement.
  • Largely abandoned in Kennedy v. Bremerton School District, 597 U.S. 507 (2022).
• Endorsement test (O’Connor) — Lynch v. Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU, 492 U.S. 573 (1989).
• Coercion test — Lee v. Weisman, 505 U.S. 577 (1992) — graduation prayer coercive; Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) — football-game prayer.
• History-and-tradition — Marsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer); Town of Greece v. Galloway, 572 U.S. 565 (2014); American Legion v. American Humanist Ass’n, 588 U.S. 29 (2019) (Bladensburg Peace Cross); Kennedy v. Bremerton (2022) elevates this approach as the dominant framework.
• Funding — Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020) — exclusion of religious schools from generally available tuition program violates Free Exercise; Carson v. Makin (2022) extended.

Free Exercise — doctrinal arc:

• Reynolds v. United States, 98 U.S. 145 (1879) — Mormon polygamy; belief-conduct distinction.
• Cantwell v. Connecticut, 310 U.S. 296 (1940) — incorporation against states.
• Sherbert v. Verner, 374 U.S. 398 (1963) — strict scrutiny for burdens on religious exercise.
• Wisconsin v. Yoder, 406 U.S. 205 (1972) — Amish exemption from compulsory school attendance.
• Employment Division v. Smith, 494 U.S. 872 (1990) — neutral, generally applicable laws do not violate Free Exercise even when they burden religious practice.
  • Authored by Justice Scalia; significantly narrowed Sherbert/Yoder.
  • Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) — strict scrutiny applies if law is not neutral or generally applicable.
• Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb — restored strict-scrutiny test as federal statute.
  • City of Boerne v. Flores, 521 U.S. 507 (1997), held RFRA unconstitutional as applied to states (exceeds § 5 enforcement authority).
• Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc — applied through spending and commerce powers; survives.
• Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014) — RFRA applies to closely held corporations; ACA contraceptive mandate burden.
• Masterpiece Cakeshop v. Colorado Civil Rights Comm’n, 584 U.S. 617 (2018) — narrow win for baker based on Commission hostility.
• Fulton v. City of Philadelphia, 593 U.S. 522 (2021) — Catholic foster agency win on narrow grounds; Smith not overruled but pressure to revisit.
• Carson v. Makin, 596 U.S. 767 (2022) — state tuition program for nonsectarian private schools must include sectarian.
• Groff v. DeJoy, 600 U.S. 447 (2023) — Title VII religious-accommodation standard heightened.

9. The Second Amendment

“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.”

• District of Columbia v. Heller, 554 U.S. 570 (2008) — individual right, untethered from militia service, to keep and bear arms for self-defense in the home.
  • Authored by Justice Scalia; 5-4.
  • Held DC handgun ban and trigger-lock requirement unconstitutional.
  • Recognized certain “presumptively lawful” restrictions (felon-in-possession, mentally ill, sensitive places, qualifications on commercial sale).
• McDonald v. City of Chicago, 561 U.S. 742 (2010) — incorporated against states via Fourteenth Amendment Due Process.
• Caetano v. Massachusetts, 577 U.S. 411 (2016) — stun-gun ban unconstitutional under Heller.
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) — replaced means-end scrutiny with text + history + tradition test; struck New York’s “proper cause” concealed-carry licensing.
  • Now-controlling framework: government must show modern firearm regulation has analogous precursor in historical tradition (Founding era and Reconstruction era weighted most heavily).
• United States v. Rahimi, 602 U.S. 680 (2024) — federal prohibition on possession by persons subject to domestic-violence restraining orders consistent with historical tradition; upheld 8-1.
  • Refined Bruen — analogues need not be “dead ringer”; principles drawn from historical record.

10. The Fourth, Fifth, Sixth, and Eighth Amendments

See criminal-law-and-procedure for detailed treatment.

11. The Fourteenth Amendment

“…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.”

11.1 Due Process — Procedural

Mathews v. Eldridge, 424 U.S. 319 (1976) — three-factor balancing for what process is due: (i) private interest affected; (ii) risk of erroneous deprivation under current procedures and probable value of additional safeguards; (iii) government’s interest, including fiscal and administrative burdens.

11.2 Due Process — Substantive

Protects certain fundamental rights so deeply rooted in our nation’s history and tradition that they are implicit in the concept of ordered liberty (Washington v. Glucksberg, 521 U.S. 702 (1997)).

Recognized fundamental rights:

• Marriage:
  • Loving v. Virginia, 388 U.S. 1 (1967) — interracial marriage; strikes anti-miscegenation laws.
  • Zablocki v. Redhail, 434 U.S. 374 (1978) — child-support holds on remarriage.
  • Turner v. Safley, 482 U.S. 78 (1987) — prisoner marriage.
  • Obergefell v. Hodges, 576 U.S. 644 (2015) — same-sex marriage; Fourteenth Amendment Due Process and Equal Protection.
• Procreation — Skinner v. Oklahoma, 316 U.S. 535 (1942) (compulsory sterilization).
• Contraception:
  • Griswold v. Connecticut, 381 U.S. 479 (1965) — marital privacy; “penumbras and emanations.”
  • Eisenstadt v. Baird, 405 U.S. 438 (1972) — extended to unmarried.
  • Carey v. Population Services International, 431 U.S. 678 (1977) — minors.
• Parental rights:
  • Meyer v. Nebraska, 262 U.S. 390 (1923) — German-language instruction.
  • Pierce v. Society of Sisters, 268 U.S. 510 (1925) — private-school option.
  • Troxel v. Granville, 530 U.S. 57 (2000) — grandparent visitation.
• Intimate association / private consensual sexual conduct — Lawrence v. Texas, 539 U.S. 558 (2003), overruling Bowers v. Hardwick, 478 U.S. 186 (1986).
• Travel — interstate, Shapiro v. Thompson, 394 U.S. 618 (1969); Saenz v. Roe, 526 U.S. 489 (1999).
• Voting — Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Bush v. Gore, 531 U.S. 98 (2000).
• Refuse medical treatment — Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990); right to die debate.
• Abortion — major doctrinal arc:
  • Roe v. Wade, 410 U.S. 113 (1973) — recognized right; trimester framework.
  • Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) — reframed as “undue burden”; preserved core right.
  • Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016) — Texas TRAP laws struck.
  • Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) — overruled Roe and Casey; no constitutional right to abortion; returned to states.
  • State responses: trigger laws activated in ~13 states; constitutional protections in others (Kansas, Michigan, Ohio, California voted for abortion rights).
• Suicide / assisted suicide — Washington v. Glucksberg, 521 U.S. 702 (1997) — not a fundamental right.

11.3 Equal Protection

Three tiers:

• Strict scrutiny — for classifications based on:
  • Race, national origin (suspect classes since Korematsu v. United States, 323 U.S. 214 (1944), formally).
  • Alienage for state classifications generally; narrow public-function exception (police, teachers, jurors).
  • Laws burdening fundamental rights — voting, interstate travel, access to courts, marriage.
  • Requires compelling governmental interest and narrow tailoring (least restrictive means).
• Intermediate scrutiny — for:
  • Sex classifications (Craig v. Boren, 429 U.S. 190 (1976); United States v. Virginia, 518 U.S. 515 (1996) — VMI; “exceedingly persuasive justification”).
  • Illegitimacy (Trimble v. Gordon, 430 U.S. 762 (1977)).
  • Undocumented children for K-12 (Plyler v. Doe, 457 U.S. 202 (1982)).
  • Requires important governmental interest and substantially related means.
• Rational basis — economic, social, age, disability, etc.
  • Requires only legitimate interest and rational means.
  • Highly deferential; rarely fails.
  • Rational-basis-with-bite occasionally applied (Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); United States v. Windsor, 570 U.S. 744 (2013)).

Discriminatory intent, not effect, controls — Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) (factors: impact, historical background, sequence of events, departures from normal procedures, legislative or administrative history).

Race classifications:

• School desegregation:
  • Plessy v. Ferguson, 163 U.S. 537 (1896) — separate-but-equal upheld; overruled by Brown.
  • Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I) — separate educational facilities inherently unequal.
  • Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II) — “with all deliberate speed.”
  • Cooper v. Aaron, 358 U.S. 1 (1958) — Little Rock Nine; Supreme Court interpretations supreme over state defiance.
  • Green v. County School Bd., 391 U.S. 430 (1968) — Court rejected “freedom of choice” plans; affirmative duty to desegregate.
  • Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) — busing remedy upheld.
  • Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) — voluntary K-12 race-conscious assignment plans struck.
• Affirmative action:
  • Regents of the University of California v. Bakke, 438 U.S. 265 (1978) — no quotas; diversity a compelling interest.
  • Grutter v. Bollinger, 539 U.S. 306 (2003) — narrowly tailored individualized review (Michigan Law).
  • Gratz v. Bollinger, 539 U.S. 244 (2003) — mechanical point system struck.
  • Fisher v. University of Texas (Fisher I), 570 U.S. 297 (2013) — strict scrutiny required.
  • Fisher v. University of Texas (Fisher II), 579 U.S. 365 (2016) — Texas’s holistic review upheld 4-3.
  • Students for Fair Admissions v. Harvard / UNC, 600 U.S. 181 (2023) — race-conscious admissions at Harvard and UNC unconstitutional under the Fourteenth Amendment and Title VI; effectively ended race-conscious college admissions.
• Race-conscious districting — under both Equal Protection and the Voting Rights Act; Shaw v. Reno, 509 U.S. 630 (1993); Cooper v. Harris, 581 U.S. 285 (2017).
• Racial gerrymandering — strict scrutiny when race “predominant”; Miller v. Johnson, 515 U.S. 900 (1995).

Sex classifications:

• Reed v. Reed, 404 U.S. 71 (1971) — first case to invalidate a sex-based law (estate-administration preference for males).
• Frontiero v. Richardson, 411 U.S. 677 (1973) — military spousal benefits; plurality strict scrutiny but no majority.
• Craig v. Boren, 429 U.S. 190 (1976) — intermediate scrutiny formalized; differential drinking age.
• Michael M. v. Superior Court, 450 U.S. 464 (1981) — statutory rape (upheld female-only victim).
• Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) — nursing school exclusion of males.
• United States v. Virginia, 518 U.S. 515 (1996) — VMI; exceedingly persuasive justification.
• Sessions v. Morales-Santana, 582 U.S. 47 (2017) — citizenship transmission; differential treatment of mothers and fathers struck.
• Bostock v. Clayton County, 590 U.S. 644 (2020) — Title VII’s “because of sex” includes sexual orientation and gender identity (statutory, not constitutional).

Sexual orientation and gender identity — Romer v. Evans (1996) struck Colorado Amendment 2; Lawrence v. Texas (2003) constitutional; United States v. Windsor (2013) DOMA § 3 struck; Obergefell v. Hodges (2015) same-sex marriage; level of scrutiny for sexual-orientation classifications remains formally unsettled though functionally heightened.

12. Voting Rights and Election Law

Constitutional Amendments:

• 14th Amendment (1868) — Section 2 reduces representation for state denial of vote (rarely enforced).
• 15th Amendment (1870) — right to vote not abridged on account of race.
• 17th Amendment (1913) — direct popular election of U.S. Senators.
• 19th Amendment (1920) — right to vote not abridged on account of sex.
• 23rd Amendment (1961) — DC electoral votes for President.
• 24th Amendment (1964) — poll tax abolished in federal elections (Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), extended to state).
• 26th Amendment (1971) — voting age 18.

Statutory framework — Voting Rights Act of 1965:

• Section 2 — nationwide prohibition on voting practices that “result” in denial or abridgment of vote on account of race; remains alive.
  • Thornburg v. Gingles, 478 U.S. 30 (1986) — vote-dilution test: (1) racial group is sufficiently large and geographically compact to constitute majority in single-member district, (2) racial group is politically cohesive, (3) majority votes sufficiently as a bloc to defeat minority’s preferred candidate.
  • Allen v. Milligan, 599 U.S. 1 (2023) — Alabama congressional map violated Section 2.
  • Brnovich v. DNC, 594 U.S. 647 (2021) — narrowed Section 2 vote-denial framework.
• Section 5 — preclearance for covered jurisdictions.
  • Coverage formula struck in Shelby County v. Holder, 570 U.S. 529 (2013) — formula based on 1960s-era data no longer congruent and proportional.
  • Section 5 itself technically alive but inoperative without a coverage formula.
• Section 3 — judicial bail-in for jurisdictions found to have violated 14th or 15th Amendment.

Districting:

• One person, one vote:
  • Baker v. Carr, 369 U.S. 186 (1962) — opened door to redistricting challenges; rejected political-question defense.
  • Reynolds v. Sims, 377 U.S. 533 (1964) — state legislative districts must be substantially equal in population.
  • Wesberry v. Sanders, 376 U.S. 1 (1964) — congressional districts must be substantially equal.
• Partisan gerrymandering — Rucho v. Common Cause, 588 U.S. 684 (2019) — non-justiciable political question in federal court; state-court remedies remain available.
• Racial gerrymandering — strict scrutiny when race is “predominant factor”; Shaw v. Reno, 509 U.S. 630 (1993); Cooper v. Harris, 581 U.S. 285 (2017); Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. 178 (2017).

Campaign finance:

• Buckley v. Valeo, 424 U.S. 1 (1976) — contributions vs expenditures distinction.
• Citizens United v. FEC, 558 U.S. 310 (2010) — independent corporate/union expenditures protected.
• McCutcheon v. FEC, 572 U.S. 185 (2014) — aggregate contribution limits struck.
• FEC v. Cruz, 596 U.S. 289 (2022) — limits on post-election repayment of candidate loans struck.

Election administration / 2020 cycle:

• Moore v. Harper, 600 U.S. 1 (2023) — rejected the strong form of the independent state legislature theory; state courts retain ordinary judicial review of state election laws.
• Trump v. Anderson, 601 U.S. 100 (2024) — states may not enforce Section 3 of the 14th Amendment to disqualify federal candidates absent congressional action.

13. Takings Clause

Fifth Amendment: “nor shall private property be taken for public use, without just compensation.” Incorporated through Fourteenth Amendment Due Process.

• Public use — Kelo v. City of New London, 545 U.S. 469 (2005) — economic-development plans qualify as public use; spurred state-law reforms in many states.
• Per se physical takings:
  • Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) — permanent physical occupation, however small (cable on apartment building).
  • Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021) — organizer-access regulation a physical taking.
• Regulatory takings:
  • Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) — “if regulation goes too far” (Holmes).
  • Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) — multifactor test:
    1. Economic impact on claimant.
    2. Investment-backed expectations.
    3. Character of governmental action.
• Total wipeout — Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) — denial of all economically beneficial use is a per se taking absent background-principles defense.
• Exactions — Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (essential nexus); Dolan v. City of Tigard, 512 U.S. 374 (1994) (rough proportionality); Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013) (monetary exactions); Sheetz v. County of El Dorado, 601 U.S. 267 (2024) — applies to legislative as well as adjudicative exactions.
• Temporary takings and inverse condemnation — First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).
• Just compensation — fair market value at time of taking.

14. Contracts Clause

Article I, § 10, cl. 1 — “No State shall … pass any … Law impairing the Obligation of Contracts.” Largely dormant; Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983), provides three-prong test (substantial impairment, significant and legitimate public purpose, reasonable adjustment). Sveen v. Melin, 584 U.S. 811 (2018), upheld Minnesota statute revoking spouse’s beneficiary designation upon divorce.

15. Privileges and Immunities (Two Different Clauses)

• Article IV, § 2 — interstate; protects citizens of one state from discrimination by another regarding fundamental rights (see § 4.4 above).
• Fourteenth Amendment — protects “privileges or immunities of citizens of the United States” against state infringement. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) — narrowly read (right to travel, federal benefits, access to federal officers); largely dormant since. Saenz v. Roe, 526 U.S. 489 (1999) — right to interstate travel grounded partly in the Privileges or Immunities Clause.

Part III — Judicial Review and Interpretation

16. Judicial Review

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) — Chief Justice John Marshall establishes that “it is emphatically the province and duty of the judicial department to say what the law is.”

Federal courts may declare federal statutes unconstitutional.

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) — federal review of state-court decisions on federal questions.

Cooper v. Aaron, 358 U.S. 1 (1958) — Supreme Court interpretations of the Constitution are supreme over conflicting state laws and state officials.

Note that the Supreme Court is the final interpreter of the Constitution within the federal system, but its rulings can be modified by:

• Constitutional amendment — the only formal mechanism to overrule a constitutional decision (11th Amendment, 14th Amendment, 16th Amendment, 26th Amendment have each overruled SCOTUS decisions).
• Subsequent Court overruling of its own precedent (rare but increasing — see § 18 below).
• Statutory interpretation — Congress may legislatively respond when the decision rests on statutory grounds (Civil Rights Act of 1991 responded to several Title VII decisions; ADA Amendments Act of 2008; Lilly Ledbetter Fair Pay Act of 2009).
• Jurisdiction-stripping — Congress may limit appellate jurisdiction (rarely used, with mixed constitutional review).

17. Methodologies

• Originalism — text understood according to its original public meaning (Scalia, Thomas, Gorsuch, Barrett).
  • Distinct from original-intent originalism.
  • District of Columbia v. Heller (2008) is the canonical example.
  • Some originalists also examine post-ratification history and tradition (Bruen; Dobbs; Bremerton).
• Textualism — focus on text; in constitutional law sometimes folded into originalism.
  • Bostock v. Clayton County (2020) is a notable textualist statutory case authored by Justice Gorsuch.
• Living constitutionalism — Constitution as evolving document; meaning shaped by changing societal understandings.
• Common-law constitutionalism — gradual case-by-case elaboration (Strauss); the Constitution as an unwritten common-law tradition layered over the written text.
• Structural / structuralism — inferences from constitutional structure (Bobbitt’s modalities).
• Pluralism — multiple modalities (Bobbitt’s six — historical, textual, structural, doctrinal, ethical, prudential).
• Moral readings — Dworkin’s view that the Constitution embodies abstract moral principles requiring substantive judgment.
• Popular constitutionalism — Kramer, Tushnet; Constitution belongs to the people, not the courts.

The Court is currently dominated by originalism / textualism in its statutory and structural cases. Rights cases often involve mixtures of methodology and history. Stare decisis remains controversial (see § 18).

18. Stare Decisis

Factors considered in deciding whether to overrule a constitutional precedent (typically articulated in Planned Parenthood v. Casey, 505 U.S. 833 (1992), and Janus v. AFSCME, 585 U.S. 878 (2018)):

• Quality of the prior decision’s reasoning.
• Workability.
• Consistency with other related decisions.
• Developments since the decision.
• Reliance interests.

Recent overrulings of constitutional precedent:

• Janus v. AFSCME, 585 U.S. 878 (2018) — overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (public-sector union agency fees).
• South Dakota v. Wayfair, Inc., 585 U.S. 162 (2018) — overruled Quill Corp. v. North Dakota, 504 U.S. 298 (1992) (physical-presence requirement for state sales tax).
• Ramos v. Louisiana, 590 U.S. 83 (2020) — overruled Apodaca v. Oregon, 406 U.S. 404 (1972) (non-unanimous criminal juries).
• Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022) — overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
• Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023) — effectively overruled Grutter v. Bollinger (2003).
• NYSRPA v. Bruen, 597 U.S. 1 (2022) — abrogated two-step framework that had developed in lower courts since Heller.
• Loper Bright v. Raimondo, 603 U.S. 369 (2024) — overruled Chevron v. NRDC (1984) — agency deference.
• Andy Warhol Foundation v. Goldsmith, 598 U.S. 508 (2023) — significantly narrowed transformative-fair-use test in copyright.
• Bostock v. Clayton County (2020), in effect though not explicitly, replaced earlier Title VII understandings.
• Trump v. United States, 603 U.S. ___ (2024) — first articulation of presidential criminal immunity.

19. Major SCOTUS Decisions to Know (Selected)

• Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) — judicial review.
• McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) — federal supremacy; necessary and proper.
• Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) — commerce clause.
• Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) — overruled in part by 13th, 14th Amendments; deeply discredited.
• Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) — narrow reading of Privileges or Immunities Clause.
• Civil Rights Cases, 109 U.S. 3 (1883) — state-action doctrine.
• Plessy v. Ferguson, 163 U.S. 537 (1896) — separate but equal (overruled by Brown).
• Lochner v. New York, 198 U.S. 45 (1905) (repudiated).
• Schenck v. United States, 249 U.S. 47 (1919).
• West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
• Brown v. Board of Education, 347 U.S. 483 (1954).
• Mapp v. Ohio, 367 U.S. 643 (1961).
• Baker v. Carr, 369 U.S. 186 (1962).
• Gideon v. Wainwright, 372 U.S. 335 (1963).
• Griswold v. Connecticut, 381 U.S. 479 (1965).
• Miranda v. Arizona, 384 U.S. 436 (1966).
• Loving v. Virginia, 388 U.S. 1 (1967).
• Tinker v. Des Moines, 393 U.S. 503 (1969).
• Brandenburg v. Ohio, 395 U.S. 444 (1969).
• Roe v. Wade, 410 U.S. 113 (1973).
• United States v. Nixon, 418 U.S. 683 (1974).
• Buckley v. Valeo, 424 U.S. 1 (1976).
• Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
• INS v. Chadha, 462 U.S. 919 (1983).
• Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (overruled 2024).
• Bowers v. Hardwick, 478 U.S. 186 (1986) (overruled by Lawrence).
• Texas v. Johnson, 491 U.S. 397 (1989).
• Employment Div. v. Smith, 494 U.S. 872 (1990).
• Planned Parenthood v. Casey, 505 U.S. 833 (1992).
• United States v. Lopez, 514 U.S. 549 (1995).
• United States v. Virginia (VMI), 518 U.S. 515 (1996).
• Bush v. Gore, 531 U.S. 98 (2000).
• Lawrence v. Texas, 539 U.S. 558 (2003).
• Grutter v. Bollinger, 539 U.S. 306 (2003) (effectively overruled 2023).
• Crawford v. Washington, 541 U.S. 36 (2004).
• Kelo v. New London, 545 U.S. 469 (2005).
• District of Columbia v. Heller, 554 U.S. 570 (2008).
• Citizens United v. FEC, 558 U.S. 310 (2010).
• McDonald v. City of Chicago, 561 U.S. 742 (2010).
• NFIB v. Sebelius, 567 U.S. 519 (2012).
• Shelby County v. Holder, 570 U.S. 529 (2013).
• Obergefell v. Hodges, 576 U.S. 644 (2015).
• Whole Woman’s Health v. Hellerstedt, 579 U.S. 582 (2016).
• Trump v. Hawaii, 585 U.S. 667 (2018) — travel ban; Korematsu formally repudiated.
• Janus v. AFSCME, 585 U.S. 878 (2018).
• Bostock v. Clayton County, 590 U.S. 644 (2020).
• Trump v. Vance, 591 U.S. 786 (2020).
• Seila Law v. CFPB, 591 U.S. 197 (2020).
• Fulton v. Philadelphia, 593 U.S. 522 (2021).
• Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022).
• NYSRPA v. Bruen, 597 U.S. 1 (2022).
• Kennedy v. Bremerton School Dist., 597 U.S. 507 (2022).
• West Virginia v. EPA, 597 U.S. 697 (2022).
• Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).
• Biden v. Nebraska, 600 U.S. 477 (2023).
• Moore v. Harper, 600 U.S. 1 (2023).
• Counterman v. Colorado, 600 U.S. 66 (2023).
• 303 Creative v. Elenis, 600 U.S. 570 (2023).
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
• SEC v. Jarkesy, 603 U.S. 109 (2024).
• Trump v. United States, 603 U.S. ___ (2024).
• Trump v. Anderson, 601 U.S. 100 (2024).
• United States v. Rahimi, 602 U.S. 680 (2024).
• Murthy v. Missouri, 603 U.S. ___ (2024).
• Moody v. NetChoice / NetChoice v. Paxton, 603 U.S. ___ (2024).
• Harrington v. Purdue Pharma L.P., 603 U.S. ___ (2024) — opioid bankruptcy releases.
• SEC v. Jarkesy, 603 U.S. 109 (2024).
• Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
• Trump v. United States, 603 U.S. ___ (2024).
• City of Grants Pass v. Johnson, 603 U.S. ___ (2024) — Eighth Amendment / homelessness.
• Fischer v. United States, 603 U.S. ___ (2024) — § 1512(c)(2) obstruction narrowed; January 6 charges.

19.1 Article V — Amendment

Two paths to amendment:

1. Congressional proposal — two-thirds of each chamber, then ratification by three-fourths of state legislatures (or state conventions).
2. Convention proposal — application of two-thirds of state legislatures, then ratification by three-fourths.

The Constitution has been amended 27 times. The first 10 (Bill of Rights) were ratified together in 1791. Amendments 13–15 (Reconstruction) followed the Civil War. Recent amendments are sparse — 27th (1992, congressional pay; ratification took 202 years), 26th (1971, 18-year-old vote), 25th (1967, presidential succession), 24th (1964, poll-tax abolition).

An Equal Rights Amendment passed Congress in 1972; ratification deadline (1979, extended to 1982) expired without sufficient state ratifications; recent ratifications by Nevada, Illinois, Virginia have created ongoing legal dispute about whether the ERA is now part of the Constitution.

19.2 Article VI — Supremacy

• Supremacy Clause (Art. VI, cl. 2) — Constitution, federal laws, and treaties are supreme law of the land.
• Oaths — all federal and state officers bound by oath to support the Constitution.
• No religious test for federal office.

19.3 Article VII — Ratification

The Constitution was ratified by ratifying conventions in 9 of 13 states (the threshold).

• Delaware first (December 7, 1787).
• Pennsylvania (December 12, 1787).
• New Jersey (December 18, 1787).
• Georgia (January 2, 1788).
• Connecticut (January 9, 1788).
• Massachusetts (February 6, 1788).
• Maryland (April 28, 1788).
• South Carolina (May 23, 1788).
• New Hampshire ninth (June 21, 1788, triggering effect).
• Virginia (June 25, 1788).
• New York (July 26, 1788).
• North Carolina (November 21, 1789).
• Rhode Island last (May 29, 1790).

Ratification debates produced The Federalist Papers (Hamilton, Madison, Jay; 85 essays, 1787-1788) and Anti-Federalist responses; both remain heavily cited interpretive sources.

20. Cross-Domain Connections

• criminal-law-and-procedure — Bill of Rights provisions detailed there; incorporation doctrine.
• torts — First Amendment ceiling on defamation; punitive-damages Due Process limits; preemption.
• contracts-and-ip — Contracts Clause; Patent and Copyright Clause (Article I, § 8, cl. 8); First Amendment limits on IP (Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 565 U.S. 302 (2012)).
• macroeconomics — Spending Clause; commerce regulation; takings and regulatory takings.
• security — Fourth Amendment surveillance doctrine; Section 230 and First Amendment in platform regulation; NetChoice line.
• regulation — Administrative law overhaul (Chevron’s fall, major-questions doctrine, Jarkesy); commerce clause limits on state regulation of finance.
• climate-policy — Major-questions doctrine constraints on EPA; West Virginia v. EPA; Massachusetts v. EPA, 549 U.S. 497 (2007).

21. Practice Notes

• Federal jurisdiction — district courts (94), circuit courts (13), Supreme Court.
• Petition for certiorari — discretionary review; Rule of Four required.
• Standing for facial challenges — narrower than as-applied in some doctrinal areas; broader in First Amendment (overbreadth).
• As-applied vs facial — pre-enforcement facial challenges in First Amendment, vagueness; otherwise generally as-applied.
• Severability — Murphy v. NCAA (2018); Barr v. American Association of Political Consultants, 591 U.S. 610 (2020); strong presumption of severability.

22. Federalism in Practice

Modern federalism is shaped by:

• Cooperative federalism — joint federal-state regulatory programs (Medicaid, CWA, CAA).
• Conditional spending — federal money with strings attached.
• State laboratories — New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, dissenting) — “courageous States” as experiments in democracy.
• Reverse preemption — McCarran-Ferguson Act for insurance.
• State constitutional law — many state constitutions grant rights beyond the federal floor (search and seizure, due process, equal protection, education, environment).

23. War, Emergency, and National Security

• Declaration of war — Congress (Article I, § 8, cl. 11); last formal declaration was World War II (1941–1942).
• Authorizations for use of military force (AUMFs) — congressional authorizations short of declarations; September 18, 2001 AUMF (Pub. L. 107-40) still operative; 2002 Iraq AUMF.
• War Powers Resolution of 1973 — 60-day cap on military hostilities without congressional authorization. Treated as advisory or unconstitutional by every president since enactment.
• Suspension of habeas corpus — Article I, § 9, cl. 2; permitted in rebellion or invasion only.
• Detention —
  • Hamdi v. Rumsfeld, 542 U.S. 507 (2004) — U.S. citizen enemy combatant entitled to due process to contest detention.
  • Hamdan v. Rumsfeld, 548 U.S. 557 (2006) — military commissions at Guantanamo violated UCMJ and Geneva Conventions.
  • Boumediene v. Bush, 553 U.S. 723 (2008) — Suspension Clause applies to Guantanamo detainees; statutory substitute inadequate.
• State secrets privilege — United States v. Reynolds, 345 U.S. 1 (1953); revived as broader doctrine post-9/11.
• Surveillance — FISA (1978), FISA Amendments Act (2008); USA Freedom Act (2015) ended bulk metadata collection.

24. The Reconstruction Amendments

The Civil War Amendments (1865–1870) fundamentally restructured federal-state power:

• 13th Amendment (1865) — abolished slavery and involuntary servitude except as punishment for crime.
  • Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) — Section 2 authorizes broad legislation against “badges and incidents of slavery.”
• 14th Amendment (1868) — citizenship (Section 1), incorporation vehicle, equal protection, due process, privileges or immunities.
  • Section 2 — apportionment penalty for denial of suffrage (rarely enforced).
  • Section 3 — disqualification from office for those who engaged in insurrection (Trump v. Anderson, 2024 — federal enforcement only).
  • Section 4 — public-debt validity.
  • Section 5 — enforcement; Boerne v. Flores, 521 U.S. 507 (1997) — congruent and proportional.
• 15th Amendment (1870) — right to vote shall not be denied on account of race; Section 2 enforcement.

The Civil Rights Cases, 109 U.S. 3 (1883), narrowed Section 5 to state action — overruled implicitly by modern jurisprudence but the state-action doctrine remains a major doctrinal hurdle for private discrimination claims under the 14th Amendment.

25. State Action Doctrine

The 14th Amendment binds only state actors. Three principal exceptions reach private conduct:

• Public function — private entity performing traditionally exclusive government function (Marsh v. Alabama, 326 U.S. 501 (1946) (company town); narrow today).
• Entanglement / state encouragement — Shelley v. Kraemer, 334 U.S. 1 (1948) (judicial enforcement of racially restrictive covenant).
• Joint participation — Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

Recent narrowing: Manhattan Community Access Corp. v. Halleck, 587 U.S. 802 (2019) — public-access cable channel not state actor.

26. The Supreme Court — Institutional Notes

• Composition — 9 Justices since 1869. Chief Justice + 8 Associate Justices.
• Appointment — by President with advice and consent of Senate (Article II, § 2, cl. 2).
• Tenure — “during good Behaviour” (Article III, § 1) — effectively life tenure.
• Salary protection — Article III, § 1 — cannot be diminished during tenure.
• Removal — only by impeachment (House by majority, Senate conviction by 2/3). One Justice impeached (Samuel Chase, 1804; acquitted).
• Term — first Monday in October through end of June/early July.
• Caseload — approximately 7,000–8,000 petitions per term; 60–80 cases granted; 50–70 decided with full opinions.
• Rule of Four — four Justices’ votes required to grant certiorari.
• Shadow docket — emergency orders and stays; growing in prominence and controversy.

27. Court Reform Debate

Reform proposals discussed in recent years:

• Court packing — adding seats; politically charged history (FDR 1937).
• Term limits — proposed 18-year staggered terms for Justices; would likely require constitutional amendment.
• Jurisdiction stripping — narrowing appellate jurisdiction by statute; debated constitutional limits.
• Ethics rules — explicit code of conduct adopted by the Court in November 2023 in response to controversies.
• Recusal reforms — calls for clearer standards and external review.

28. State Constitutional Law

Each state has its own constitution operating in parallel with the federal constitution:

• Floor, not ceiling — federal Constitution sets the floor; states may provide more rights but not less.
• Independent state grounds — Michigan v. Long, 463 U.S. 1032 (1983) — clear statement rule; if state court relies on adequate and independent state ground, SCOTUS lacks appellate jurisdiction.
• State equal protection — many states have explicit ERA or sex-equality clauses providing more than federal floor.
• State Article I religion clauses — Blaine Amendments historically restricted public funding of religious schools; under post-Espinoza/Carson framework now in tension with federal Free Exercise.
• State takings clauses — some recognize broader regulatory-takings protection.
• State search-and-seizure — many state courts diverge from Supreme Court (NJ, OR, WA, NY).
• State right to education — recognized as fundamental under state constitution in many states (litigated in school-funding equity cases).

29. Foreign and Comparative Influences

The U.S. Constitution influenced and was influenced by:

• Magna Carta (1215) — habeas corpus, jury trial, due process roots.
• English Bill of Rights (1689) — petition, no excessive bail, no cruel and unusual punishment.
• French Declaration of the Rights of Man (1789) — parallel rights tradition.
• Modern post-WWII constitutions — German Basic Law, ECHR — many borrowed proportionality and human-dignity frameworks.

U.S. courts have varied in willingness to cite foreign law. Lawrence v. Texas (2003) and Roper v. Simmons (2005) cited foreign authorities; criticism led to legislative responses but no binding restriction.

Adjacent

• _index — Law library map.
• criminal-law-and-procedure — Bill of Rights detail; incorporation; equal protection in criminal context.
• torts — First Amendment ceiling on tort liability; Due Process punitive-damages limits.
• contracts-and-ip — Constitutional bases for IP; Contracts Clause; First Amendment.
• macroeconomics — Federalism economics; spending power; takings and regulation.
• regulation — Administrative-law revolution; major questions doctrine; Loper Bright and Jarkesy.