Constitutional Law Outline Bar Review


I. The Federal Judicial Power

A. Cases and Controversies

Art. III requires that federal courts may only try cases and controversies.

Supreme Court may not issue advisory opinions.

2. Standing

Injury ? must allege and prove that he or she has been injured or imminently will be injured. Includes violations of C/L, statutory, or constitutional rights. May include aesthetic or environmental injuries. Economic loss is the best injury. ?'s may only assert injuries that they personally have suffered. ?'s seeking injunctive or declaratory relief must show a likelihood of future harm.

Causation and Redressability. ? caused the injury. Favorable court decision will remedy the injury.

No 3rd Party Standing. ? may not assert claims of 3rd parties. Three Exceptions Close relationship between ? and injured 3rd party. Ex: Bartenders who sued on behalf of their customers. Injured 3rd party unlikely to able to assert their own rights. Ex: Criminal ?'s may raise the rights of prospective jurors to be free from discrimination. Organization has standing if its members have standing.

No Generalized Grievances ? may not sue solely as a "taxpayer" or a "citizen" interested in having the gov't follow the law.

Establishment Clause Exception Taxpayers may challenge gov't spending as violating the Establishment Clause against religion. Ex: If the gov't gives $ directly to religious schools. Taxpayer may not challenge a gov't grant of land as violating the Establishment Clause (only $).

Ripeness Generally court may not review a statute until it is has been violated.

Factors Hardship that will be suffered w/o pre-enforcement review. Fitness of the issues and record for judicial review. Ex: Drug companies were allowed to challenge FDA reg that required them to add expensive labels to drugs.

Mootness If ?'s injury ends after the lawsuit is filed, the suit is dismissed as moot.

Exceptions Wrong capable of repetition but evading review. Voluntary cessation. Class action suits.

Political Question Doctrine Courts will not hear political question cases. Examples automatically dismissed as political questions: Republican Form of Government Clause Ex: voters adopt a law by initiative, not representation. Challenges to President's foreign policy. Signing of treaties. Waging war. Challenges to impeachment and removal process.

B. Supreme Court Review

Writ of Certiorari

Virtually all cases come to the U.S. Supreme Court by writ of certiorari.

All cases from State courts (discretionary review).

All cases from U.S. Court of Appeals (discretionary review).

Decisions of three-judge district courts (non-discretionary review).

Suits between State gov'ts (original and exclusive jurisdiction).

Final Judgment Rule

Supreme Court may only hear cases after a final judgment. There is no interlocutory appeal.

Independent and Adequate Ground To review a State court decision, there can not be an independent and adequate state law ground of decision. If State decision rests on state and federal law, and reversal of the federal judgment will not change the outcome of the case, then the Supreme Court can not hear it. Ex: If ? wins both a state law battery claim and a federal discrimination claim and gets the same damages, it is non-appeallable.

C. Sovereign Immunity

Lower federal courts and state courts may not hear suits against state governments. 11th Amend. bars naming a state as a ? in federal court. Sovereign immunity bars suing a state in state court (without the state's consent).

Exceptions Waived by state gov't. States may be sued pursuant to federal laws adopted under 14th Amend. Ex: Civil Rights Act adopted under EPC. Feds may not authorize suits under other portions of the Constitution. Federal gov't may sue state gov'ts. Suits against state officers. Ex: If a law is unconstitutional.

II. The Federal Legislative Power

A. Congress' Authority to Act

There must be an express of implied power. Congress has no federal police power.

Exceptions Washington, D.C. Indians. Military. Federal Land. Necessary and Proper Clause Congress may use any means not prohibited. Ex: Bake sale to fund the military. Taxing and Spending Power Congress may tax and spend for the "general welfare." Commerce Clause Channels of interstate commerce. Instrumentalities or persons or things in interstate commerce. Activities that have a substantial effect on interstate commerce. Economic impact. If area being regulated is non-economic, then substantial effect can not be based on cumulative impact (i.e, violence against women). Ex: all forms of intercourse that go across state lines, trucks, phones, the Internet.

10th Amend. Limit on Congressional Powers 

Congress may not compel state action. Congress may induce state action by putting strings on grants that expressly state the conditions. Section 5 of the 14th Amend. Congress may not create new rights or expand the scope of rights.

B. Delegation of Powers

No limit on Congress' power to delegate legislative power to executive or judiciary.

Ex: U.S. sentencing guidelines. It is never a right choice if the answer says "excess of delegation." Legislative vetoes and line-item vetoes are always unconstitutional. Must be bicameralism. Must be presentment to President to sign or veto all of the bill in its entirety. 3. Congress may not delegate executive power to itself or its officers.

III. The Federal Executive Power 

A. Foreign Policy

Treaties Negotiated by the Pres. and effective when ratified by the Senate. Executive Agreements Negotiated by the Pres. and effective when signed by the Pres. and the head of a foreign country. Do not need to be ratified by the Senate. 3. President has broad powers as Commander-in-Chief to use troops in foreign countries.

Treaties and Executive Agreements Constitutional Law Outline

Is Senate Approval Required?

Conflicts with State Law Conflicts with Federal Statute Conflicts with Constitution

Treaties Yes Treaty Controls Whichever was adopted last in time controls Constitution Controls

Executive Agreements No Executive Agreement Controls Federal Statute Controls Constitution Controls

B. Domestic Affairs

Appointment Power

Pres. appoints ambassadors, federal judges, and Officers of the U.S. Senate confirms. Congress may vest appointment of inferior officers in Pres., the heads of Dep'ts, or lower federal courts. Ex: Congress may vest appointment of independent counsel w/ federal court. Congress may not give itself or its officers the appointment power. Ex: Congress creates a new agency and gives some appointment power to the Speaker of the House or the President Pro Tem of the Senate (its unconstitutional). Removal Power Unless limited by statute, President may fire any executive branch officer. Congress may limit removal to good cause when independence from the Pres. is desirable.

Impeachment and Removal Pres., Vice-Pres., federal judges, and Officers of the U.S. can be impeached and removed from office for treason, high crimes and misdemeanors. Impeachment does not remove a person from office. Impeachment by the House requires a majority vote. Conviction by the Senate requires a 2/3 vote.

Immunity Pres. has absolute immunity to civil suits for $ damages for any actions while in office. Immunity does not apply to actions before taking office. Executive Privilege Executive privilege covers presidential papers and conversations. Privilege yields to other important governmental interests. Pardon Power (MBE) President may pardon those accused or convicted of federal crimes. Crimes must be federal not state crimes. President may not pardon civil liability, including civil contempt. President can not pardon anyone for the crimes for which they impeached for. Federalism

A. Preemption 

1. Supremacy Clause states Constitution and federal laws are supreme law of the land.

Express Preemption

Federal law explicitly states that the federal law is exclusive. Implied Preemption If federal law and state law are mutually exclusive, state law is preempted. If it is impossible to comply w/ both the State and Federal laws. State may set stricter environmental standards than the Federal law, unless prohibited. If state law impedes the achievement of a federal objective, federal law preempts state law. If Congress evidences a clear intent (based on legislative history) to preempt state law. State may not tax or regulate federal government. It is unconstitutional to pay a State out of the Federal Treasury. State may not regulate the Federal gov't if it burdens Federal activity (i.e., pollution controls). B. Dormant Commerce Clause and the Privileges & Immunities Clause of Article IV

Definitions (applies when State and Local Gov't's make laws)

Dormant Commerce Clause

State and local laws may not place an undue burden on interstate commerce.

Also called the negative implications of the Commerce Clause.

Privileges & Immunities Clause of Article IV

No State may deny citizens of other states privileges and immunities it affords its own citizens.

Privileges & Immunities Clause of 14th Amend.

Only protects the right to travel. Otherwise, it is always a wrong answer choice. Ex: CA discriminates against new in-staters re: the receipt of welfare benefits.

2. Discrimination

If the law does not discriminate against out-of-staters: Privileges & Immunities Clause of Art. IV ‚ apply.

Dormant Commerce Clause is violated if law burdens interstate commerce and burdens exceed its benefits.

If the law discriminates against out-of-staters: Privileges & Immunities Clause violated if it interferes w/ ability to earn livelihood.

Discrimination is regard to civil liberties or economic activities. Ex: Commercial shrimp fishing but not recreational elk hunting. Corporations and aliens can not claim it. Dormant Commerce Clause violated unless it is necessary to achieve important government interest. Ex: MA says no out-of-state bait fish b/c of fear of contamination to environment.

Exceptions Congressional Approval. Market-Participant Exception. Ex 1: PSU (state-owned school) may charge less in tuition to residents.

Dormant Commerce Clause/Privileges & Immunities Clause of Art. IV




Violates the Dormant Commerce Clause if it places a burden on interstate commerce unless it is necessary to achieve an important government purpose.

Two Exceptions:

(1) Congressional approval of discrimination.

(2) Market participant exception. Violates the Privileges & Immunities Clause of Art. IV if it discriminates against individuals w/ regard to important economic activities or civil liberties unless it is necessary to achieve an important gov't purpose. If the gov't is burdening interstate commerce, balance the benefit to the state vs. the burden on interstate commerce (if the benefit exceeds the burden, the law is upheld; if the burden exceeds the benefit, the law is struck down). Privileges & Immunities Clause of Art. IV is inapplicable.

Comparison of the Dormant Commerce Clause and the

Privileges & Immunities Clause of Art. IV

Dormant Commerce Clause

Privileges & Immunities Clause of Art. IV

1) Does not require discrimination vs. out-of-

stater's in order to apply.

2) Requires a burden on interstate commerce.

3) Corporations and aliens can sue under it.

4) Exceptions: Congressional approval and

Market Participant Exception.

1) Requires discrimination vs. out-of-staters in

order to apply.

2) Requires discrimination w/ regard to civil

liberties or important economic activities.

3) Corporations and aliens can NOT sue under it.

4) No Exceptions.

The Structure of the Constitution's Protections of Individual Liberties Constitutional Law Outline

A. Is there government action?

1. Constitution only applies to gov't action, not private action.

Statutes may apply the constitutional norms to private conduct. 13th Amend. applies directly to private conduct (no slavery). Private racial discrimination may violate statutes adopted under the 13th Amend.

Commerce power can apply constitutional norms to private conduct.

Congress can not use section 5 of the 14th Amend. (EPC) to regulate private conduct.

Private Conduct Exceptions

Public function exception (company owned-towns, elections). Entanglement exception Courts may not enforce racially restricted covenants. Gov't leases premises to restaurant that racially discriminates. State provides books to schools that racially discriminate. No state action when gov't subsided school fired teacher in violation of 1st Amend. No state action when NCAA (all over the country) ordered coach suspended. State action when private entity regulates school sports entirely w/in one state. No state action when private club w/ state liquor license discriminates.

B. Application of the Bill of Rights

1. Bill of Rights directly only applies to federal government.

Bill of rights incorporated through DPC of the 14th Amend. except: Right to bear arms (2nd Amend). Right to not have solider quartered in your house (3rd Amend). Right to grand jury in criminal cases (5th Amend). Right to jury trial in civil cases (7th Amend). Right against excessive fines (8th Amend); excessive bail not okay.

C. Levels of Scrutiny:

The Levels of Scrutiny

Rational Basis Test Rationally Related Legitimate Conceivable Purpose

Intermediate Scrutiny Important Actual Purpose

Strict Scrutiny Compelling Actual Purpose

Due Process

A. Procedural Due Process

Has there been a deprivation of life, liberty, or property? Liberty = Loss of significant freedom provided by Constitution or statute. Does not include prisoners w/in prison. Property = Entitlement that is reasonably expected and has not been fulfilled. Includes the continued receipt of a benefit.

What procedure are required?

Balancing Test (Matthews v. Eldridge)

Importance of the interest. Ability of additional procedures to increase accuracy of the fact-finding. Government interest (cost) in efficiency. Examples Welfare benefits get notice and hearing. Social security benefits get post termination hearing. School students get notice of charges and opportunity to explain. Loss of custody of child gets notice and hearing. Punitive damage award gets instructions to jury and judiciary review. Pre-judgment attachment and gov't seizure get notice and hearing (includes innocent owners).

B. Substantive Due Process

1. Is there an adequate reason for the gov't taking a person's life, liberty, or property?

Economic Liberties regulations get Rational Basis Review Minimum wage laws. Consumer protection laws. Professional regulations.

Takings Clause (5th Amend.)

Gov't may take private property for public use if it provides just compensation. Possessory Taking

Actual gov't confiscation or physical occupation. Regulatory Taking

Regulation leaves no reasonable economically viable use of the property = taking. Gov't condition on development of property with a benefit that is roughly proportional to the burden imposed ‚ taking. Reasonable temporary denial of use of property is ‚ taking. Regulation that lowers the value of a property ‚ taking. Property owner may bring Takings Clause challenge to existing regulations.

Just Compensation

Fair market value to the owner. Not based on gain to the taker.

Contracts Clause (Art. I)

No State or local gov't may interfere w/ existing Ks. Does not apply to the feds. Does not apply to future Ks. Only applies to civil cases. Interference w/ private Ks gets Intermediate Scrutiny. Does reg substantially impair party's rights under existing K? Is law reasonably tailored to promote important public interest? Interference w/ government Ks gets Strict Scrutiny.

Ex Post Facto Clause

Retroactive criminal liability is unconstitutional under the Ex Post Facto Clause. Retroactive civil liability gets Rational Basis Review. Bill of Attainder directs punishment of specific person w/o a trial (unconstitutional). Ex Post Facto Clause is a common wrong choice on a Contracts Clause MBE ?.

5. Right to Privacy (Fundamental Right under Substantive Due Process).

Fundamental Rights Key Examples

Rights Triggering

Strict Scrutiny

Right to marry Right to procreate Right to custody of children Right to keep family together Right to control raising of children Right to purchase and use contraceptives Right to travel (EPC) Right to vote (EPC) Freedom of speech (1st Amend) Freedom of association (1st Amend) Free exercise of religion (if law is not neutral law of general applicability) (1st Amend)

Rights Triggering

Undue Burden Test

Right to abortion

Not a Fundamental Right

(Only Rational Basis Review)

Right to practice a trade or profession Right to physician-assisted suicide Right to homosexual activity Right to education

VII. Equal Protection Constitutional Law Outline

A. Approach

1. Define the classification

2. define the level of scrutiny

3. determine whether the law meets the level of scrutiny

B. Constitutional Provisions concerning Equal Protection

1. Fourteenth Amendment applies to state and local governments only

2. Fifth Amendment applies to federal government only

C. Classifications based on Race/National Origin

1. Strict Scrutiny Applies

Classification Classification exists on the face of the law or If facially neutral, demonstrate that the law has Discriminatory impact and Discriminatory intent

Example: Discriminatory use of peremptory challenges based on race denies equal protection Where racial classifications benefit minorities: Strict scrutiny applies Quotas only upheld if there is clear proof of past discrimination Education institutions may use race as one factor in admissions to help minorities Seniority systems may not be disrupted for affirmative action

D. Gender Classifications

1. Intermediate Scrutiny Applies: Classification must be substantially related to an important government interest

2. Government must show an exceedingly persuasive justification for the discrimination


Classification exists on the face of the law or If facially neutral, demonstrate that the law has Discriminatory impact and Discriminatory intent Where gender classifications benefit women Classifications that benefit women based on role stereotypes will not be allowed Gender classification designed to remedy past discrimination will be allowed

Examples of Invalid Gender Classifications

Gender-based death benefits Gender-based peremptory strikes Alimony for women only State supported all-male or all-female schools Discriminatory minimum drinking age Examples of Valid Gender Classifications All male draft Discriminatory statutory rape laws

E. Alienage Classifications

1. General Rule: Strict Scrutiny Applies

Rational basis applies if classification is based on self-government and the democratic process Voting Being a police officer Being a probation officer Serving as a juror Being a teacher 3. Rational basis applies when Congress discriminates against aliens (they have the sole power to regulate)

4. Intermediate Scrutiny applies for undocumented alien children

Discrimination against Non-Marital Children

1. Intermediate Scrutiny Applies

2. Laws that deny a benefit to all non-marital children, but grant to all marital children are unconstitutional

G. Rational Basis Review for all other types of Discrimination

Age discrimination (e.g., mandatory retirement laws) Disability discrimination Wealth discrimination Economic regulation Sexual orientation discrimination H. Fundamental Rights Protected under Equal Protection

Right to Travel Laws that prevent people from moving into a state must meet strict scrutiny Durational residency requirements must meet strict scrutiny Rational basis applies to restrictions on foreign travel

Right to Vote

Laws that deny some citizens the right to vote get strict scrutiny No property ownership conditions allowed One-person-one-vote applies to all state and local elections Voter approval does not justify a deviation from one-person-one-vote requirement At large elections are OK unless discriminatory purpose exists Use of race in drawing election district lines to benefit minorities must meet strict scrutiny Counting uncounted votes without standards in a presidential election violates equal protection (Bush v. Gore) Maximum residency requirement for voting is 50 days

3. No fundamental right to education

Equal Protection Chart


a) The classification is on the face of the law or

b) If the law is facially neutral; there is both a discriminatory intent and a discriminatory impact

2. WHAT IS THE LEVEL OF SCRUTINY? Constitutional Law Outline

Strict Scrutiny

Law must be necessary to achieve a compelling government purpose.

Race National Origin Alienage -generally Travel Voting Intermediate Scrutiny

Law must be substantially related to an important government purpose.

Government must show exceedingly persuasive justification for the discrimination

Gender Illegitimacy Undocumented Alien Children Rational Basis

Law must be rationally related to a legitimate government interest

Alienage classifications related to self-government and democratic process Congressional regulation of aliens Age Handicap Wealth All other classifications


VIII. The First Amendment

A. Free Speech Methodology

Content Based Restrictions Must meet Strict Scrutiny. Subject matter restrictions. Viewpoint restrictions. Content Neutral Restrictions. Must meet Intermediate Scrutiny. Prior Restraints Court orders suppressing speech before it occurs must meet Strict Scrutiny. Collateral Bar Order: court orders must be complied w/ until they are overturned. Gag Orders are always constitutional. Licensing Schemes Must be an important reason and clear criteria. Vagueness and Overbreadth Vagueness if reasonable person can not tell what speech is prohibited. Overbroad if regulates substantially more than allowed. Fighting Word laws are always overbroad and vague. Symbolic Speech

Can be regulated if gov't has important interest unrelated to suppression of ideas and if impact is no greater than necessary to achieve goal. Examples Flag burning is protected. Draft card burning is not protected. Nude dancing is not protected. Burning a cross or painting a swastika are protected. Penalty enhances for hate crimes are constitutional. Election Restrictions Contribution limits are constitutional. Expenditure limits are unconstitutional. 6. Anonymous speech is protected.

Unprotected or Less-Protected Speech Incitement of illegal activity. Obscenity and sexually-orientated speech. The Test Appeals to prurient interest. Patently offensive. No redeeming artistic, literary, political, or scientific value on a national level. Zoning ordinances may regulate the location of adult bookstores and theaters. Child porn (actual children used) is completely bannable. Private possession of obscene materials (except child porn) is not punishable. Business possession of obscene materials may be seized. Profane and indecent speech is generally protected. Exception: Broadcast over free media. Exception: In schools. Commercial Speech False and deceptive ads are not protected. Commercial speech that risks deception can be prohibited. Professionals may be stopped from using a trade name. Attorneys may be stopped from in-person, face-to-face solicitation. Covers ambulance chasers. Does not cover an offer for free services. Does not cover letter solicitation. Accountants may solicit any way they want (including face-to-face). Other commercial speech is subject to Intermediate Scrutiny. Gov't regulation of commercial speech is narrowly tailored but does not have to be the least restrictive means necessary. Defamation Because of Free Speech, a ?'s right to recover for defamation may be limited.


Plaintiff Liability Standard Damages Burden of Proof

Public Official or

Public Figure Actual Malice Compensatory

Punitive Damages Plaintiff must prove falsity

Private Figure in

Matter of Public Concern Negligence and

Actual Injury Compensatory (Actual Injury)

Punitive (Actual Malice) Plaintiff must prove falsity

Private Figure in

Matter of Private Concern Negligence Compensatory (Actual Injury)

Punitive Damages (do not require Actual Malice) Burden on Defendant to prove Truth Defense

C. Places Available for Speech

Public Forums/Limited Public Forums TPM restriction must leave open ample alternative channels. Need not be the least restrictive means. City officials can not have discretion to set permit fees. Non-Public Forums Subject to rational basis review Examples Military bases. Prison grounds. City bus ad space. Sidewalks on post office property. Airports (may distribute literature only). Debates on gov't owned TV station.

Places Available for Speech

Subject Matter Neutral? Viewpoint Neutral? Method of Regulation Allowed? Interest Required?

Public Forums & Limited Public Forums Yes Yes Time, Place, or Manner Important

Non-Public Forums No Yes Reasonable Legitimate

Private Property No 1st Amend. Right to use Private Property for Speech Purposes.

D. Freedom of Association

1. Laws that prohibit/punish group membership get strict scrutiny.

Punishment allowed if group member: Actively affiliated w/ group. Knew of its illegal activities. Intended to further those illegal activities.

3. Laws that require disclosure of group membership which would chill association get strict scrutiny.

Laws that prohibit a group from discriminating are constitutional unless: The group is an intimate association (poker game or dinner party). Discrimination is part of the group's expressive activity (KKK, Nazis, Boy Scouts). E. Freedom of Religion

Free Exercise Clause Cannot be used to challenge a neutral law of general applicability unless the law is motivated by a desire to intentionally interfere w/ religion. Ex: Peyote law. Gov't may not deny benefits to someone who quits job for religious reasons. Establishment Clause Lemon Test Secular purpose for the law. Effect must be neither to endorse nor inhibit religion. No excessive entanglement w/ religion. Examples Law requiring posting of 10 Commandments in schools is unconstitutional. Nativity scenes must be accompanied by secular counterpart and counterparts from other religions. Gov't may not give cash $ directly to religious institutions or schools. Laws discriminating among religious speech or religions are subject to strict scrutiny. Schools Gov't sponsored religious activity in public schools is unconstitutional. Voluntary school prayer is unconstitutional. Religious groups must have the same access to school facilities as non-religious groups. Gov't may give assistance (supplies) but not $ to religious schools as long as it is not used for religious instruction. Gov't may provide parents w/ school vouchers; parents can then choose to use them at religious schools.

This Constitutional Law outline is for reference only. The law changes so use at your own risk.

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