Introduction to Constitutional Law: How to Approach a Fact Pattern

“If Men were angels, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary. In
framing a government which is to be administered by men over men, the great
difficulty lies in this: you must first enable the government to control the governed;
and the next place, oblige it to control itself.” – James Madison

Big-Picture Constitutional Law Issue: Is the Government Action

Constitutional?

Articles 1-3 of the U.S. Constitution Establish the Powers of the Federal

Government

Main Issue: Does the federal government have the power to take this action?

 The Judicial Power (Article III): Supreme Court and the Federal Court
System
o The Nature of Judicial Review (Marbury v. Madison)
 Review of State Action (Fletcher v. Peck to Bush v. Gore)
o Justiciability and the “Case or Controversy” Requirement
 Advisory Opinions
 Nonjusticiable Political Questions
 Standing
 Ripeness
 Mootness
o State Sovereign Immunity under the 11  Amendment
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 The Legislative Power (Article I): Congress

o Implied Powers
o Taxing Power
o Spending Power
o 13 , 14 , and 15  Amendment Enforcement Power
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o Necessary and Proper Power

o The Commerce Clause (Interstate Commerce Power)
o Delegation of Legislative Power
 The Executive Power (Article II): The President and Vice President
o Scope of Presidential Power and Youngstown
 o Domestic Powers
 Veto Power
 Appointment and Removal Powers
 Pardon Power
o Foreign Powers
 Commander-In-Chief Power
 Treaty Power
 Executive Agreement Power
o Presidential Accountability
 Executive Privileges and Immunities
 Impeachment

Articles 4-6 of the U.S. Constitution Establish the Relationship Between States and
the Federal Government (Federalism)

Main Issue: Does the state action conflict with the federal government?

 Exclusive Federal Powers

o Power of States Expressly Limited (e.g., treaty power, coinage of
money, etc.)
o Inherent Federal Powers (e.g., declaration of war)
 Exclusive State Powers
o Reserved Powers under the 10  Amendment
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 Supremacy Clause and Preemption (conflicts between state law and federal
law)
 Dormant Commerce Clause

Individual Rights

Main Issue: Does the government action infringe on an individual’s constitutional

rights?

 State Action Requirement (to trigger an individual’s constitutional

protections)
 Due Process under the 5th Amendment and 14th Amendment
o Procedural Due Process and Substantive Due Process
 Equal Protection under the 14th Amendment
 Free Speech under the 1st Amendment
o Content-Based Regulations vs. Conduct-Based Regulations
o Protected Speech vs. Unprotected Speech
  Religious Freedoms
o Free Exercise Clause and Establishment Clause
 Freedom of Association
 Other Protections
o Contracts Clause
o Ex Post Facto Laws
o Bills of Attainder

Marbury v. Madison and the Nature of Judicial Review

Marbury v. Madison, 5 U.S. 137 (1803) is widely considered to be one of the most
important Constitutional Law cases in U.S. history. It solidifies the following key
principles:

 The structure and function of U.S. Government must be based upon the
rule of law. In Marbury, the Supreme Court adheres to the rule of law in the
U.S. Constitution even when it is potentially detrimental to the Supreme
Court's own power.

 The U.S. Constitution is the supreme law of the land. In Marbury, the

Supreme Court holds that Congress cannot pass law that is in conflict or
inconsistent with the U.S. Constitution.

 The judiciary has the power of judicial review. Marbury establishes that

the Supreme Court has the power to review law passed by Congress to
determine whether the law complies with the U.S. Constitution — i.e.,
whether the law is constitutional.

The Doctrine of Justiciability and the "Case or Controversy" Requirement

Article III, Section 2 of the U.S. Constitution states:

"The judicial power shall extend to all cases, in law and equity, arising under this
Constitution, the laws of the United States, and treaties made, or which shall be
made, under their authority;—to all cases affecting ambassadors, other public
ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—
to controversies to which the United States shall be a party;—
to controversies between two or more states;--between a state and citizens of
another state;—between citizens of different states;—between citizens of the same
state claiming lands under grants of different states, and between a state, or the
citizens thereof, and foreign states, citizens or subjects."

Thus, in order for a federal court to have the power to hear and decide an action
before it, the action must meet the "case or controversy" requirement under Article
III, Section 2 of the U.S. Constitution. In short, this requires that an actual dispute
that can be resolved by a court exists between adverse parties.

Advisory Opinions

Federal courts may NOT render advisory opinions on the basis of an abstract or

hypothetical dispute. An actual case or controversy must exist. However, federal
courts may issue declaratory judgments (i.e., judgments that determine the legal
effect of proposed conduct without awarding damages or injunctive relief) so long
as the action in question poses a real and imminent danger to a party’s interests.

Constitutional Standing Requirements

A federal court cannot decide a case unless the plaintiff has standing (i.e., a

concrete stake in the outcome of the action). To have standing, a plaintiff bears the
burden of establishing three elements:

1. Injury in Fact. The injury must be concrete and particularized. While the

threat of future injury can suffice, it cannot be merely hypothetical or
conjectural, it must be actual and imminent.
2. Causation. The injury must be fairly traceable to the challenged action (i.e.,
the the defendant’s conduct caused the injury).
3. Redressability. It must be likely that a favorable court decision will redress
an injury suffered by the plaintiff.

Prudential Standing Requirements

Third Party Standing. Generally, one cannot assert the constitutional rights of

others to obtain standing, but a claimant with standing in her own right may also
assert the rights of a third party if:

 The third party would experience difficulty or is unable to assert their own
rights;
  There is a special relationship between the plaintiff and the third party; OR 
 The plaintiff’s injury adversely affects the plaintiff’s relationship with
the third party.

Organizational Standing.  An organization may bring an action when it has

suffered an injury. In addition, an organization may bring an action on behalf of its
members (even if the organization itself has not suffered an injury) if:

1. Its members would have standing to sue in their own right; AND 

2. The interests at stake are germane to the organization’s purpose.

Taxpayer Standing. Generally, a taxpayer does NOT have standing to file a

federal lawsuit simply because the taxpayer believes that the government has
allocated funds in an improper way. However, a taxpayer does have standing to
litigate whether, or how much, she owes on her tax bill. In addition, a taxpayer has
standing when the taxpayer challenges governmental expenditures as violating the
Establishment Clause (e.g., federal government allocating grant money to catholic
schools).

Justiciability Timing Issues

Ripeness. A federal court CANNOT consider a claim before it has fully

developed. For a case to be ripe for litigation, the plaintiff must have experienced a
real injury or imminent threat thereof.

Mootness. A case has become moot if further legal proceedings would have no
effect (i.e., there is no longer a controversy). A live controversy must exist at each
stage of review (not merely when the complaint is filed). There are three
exceptions:

 Capable of Repetition, Yet Evading Review. A case will not be dismissed

as moot if the controversy is a type that may often recur, but that will not
last long enough to work its way through the judicial system (e.g., abortion
challenges once the woman is no longer pregnant).
 Voluntary Cessation. A case will not be dismissed as moot if the defendant
voluntarily ceases the wrongful action once litigation has commenced. The
court must be assured that there is no reasonable expectation that the wrong
will be repeated.
  Class Actions. An entire class action will not be dismissed as moot solely
because the named party’s claim in the class is resolved and becomes moot.

Nonjusticiable Political Questions

A federal court CANNOT rule on a matter in controversy if the matter is a

political question to be resolved by one or both of the other two branches of
government. A political question not subject to judicial review arises when:

 The Constitution has assigned decision making on the matter to a different

branch of government; OR
 The matter is inherently not one that the judiciary can decide.

11th Amendment State Sovereign Immunity

The 11th Amendment is a jurisdictional bar that prohibits:

1. The citizens of one state or a foreign country from suing another state in
federal court for money damages or equitable relief; AND
2. Suits in federal court against state officials for violating state law.

However, the following are exceptions to the application of the 11th Amendment:

 Consent. A state may consent to a suit by waiving its 11th Amendment

protection.
 Injunctive Relief. When a state official, rather than the state itself, is named
as the defendant in an action brought in federal court, the state official may
be enjoined from enforcing a state law that violates federal law or may be
compelled to act in accord with federal law despite state law to the contrary.
 Individual Damages. An action for damages against a state official is not
prohibited so long as the official himself (not the state) will have to pay.
 Congressional Authorization. Congress may abrogate state immunity from
liability if it is clearly and expressly acting to enforce rights created by the
14th Amendment.

Powers of Congress
Exam Note: If you encounter a fact pattern where Congress passes a new law —
you MUST discuss which enumerated power(s) (most are contained in Article I,
Section 8 of the U.S. Constitution) gives Congress the authority to pass that law
(e.g., taxing power, spending power, commerce power, etc.).

Under Article I, Section 8 of the U.S. Constitution, Congress has the power:

To lay and collect taxes, duties, imposts and excises, to pay the debts and provide
for the common defense and general welfare of the United States; but all duties,
imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with
the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of

bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard
of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of
the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and
discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning
captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for
a longer term than two years;
To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing
such part of them as may be employed in the service of the United States, reserving
to the states respectively, the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not
exceeding ten miles square) as may, by cession of particular states, and the
acceptance of Congress, become the seat of the government of the United States,
and to exercise like authority over all places purchased by the consent of the
legislature of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful buildings;—And

To make all laws which shall be necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by this Constitution in the
government of the United States, or in any department or officer thereof.

Taxing Power

Congress has the power to tax, and most taxes will be upheld if:

 The tax bears some reasonable relationship to revenue production (as

opposed to an attempt to regulate an activity); OR
o Generally, whether a law passed by Congress is a tax or a regulation
depends on its function.
 If the law bears some reasonable relationship to revenue
production, it is considered a tax.
 If the law is more of a penalty merely labeled as a tax,
it was considered to be a regulation.
 However, after National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012) (The Supreme
Court held that the Affordable Care Act was
constitutional because the “penalty” it imposed for failing
 to carry health insurance actually constituted a tax) — the
distinction between a tax and regulation is somewhat
unclear. Ultimately, the main takeaway is that the taxing
power is very broad.
 Congress has the power to regulate the activity taxed.

While the taxing power is broad, it may not be exercised in violation of

constitutional rights (In Grosjean v. American Press Co., 297 U.S. 233 (1936), the
Supreme Court struck down a separate sales tax on certain newspapers, because the
tax was exercised in violation of free speech under the 1st Amendment.).

Spending Power

Congress may spend to “provide for the common defense and general welfare.”
Spending may be for any public purpose (do not confuse this with a general police
power — Congress has NO general police power). In making the determination as
to whether an expenditure promotes the general welfare, the Supreme Court
concluded that "courts should defer substantially to the judgment of
Congress." South Dakota v. Dole, 483 U.S. 203, 207 (1987).

"Commandeering" Limitation on Taxing and Spending Powers

Congress cannot "commandeer" state legislatures by forcing or directly compelling

them to enact specific legislation. However Congress can use the taxing and
spending powers to encourage state action it may not otherwise be able to compel
(In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court
upheld law passed by Congress which withheld 5% of federal highway funding
from states that did not maintain a minimum legal drinking age of 21 — this law
effectively encouraged states to maintain a minimum legal drinking age of 21.).
Notably, Congressional encouragement may not exceed the point at which
"pressure turns into compulsion." Steward Machine Company v. Davis, 301 U.S.
548 (1937).

Commerce Power

Congress has the power to regulate all foreign and interstate commerce. To be
within Congress’s power under the Commerce Clause, a federal law regulating
interstate commerce must either regulate the:
  Channels of interstate commerce;
 Instrumentalities of interstate commerce and persons and things in interstate
commerce; OR 
 Activities that have a substantial effect on interstate commerce.

When Congress attempts to regulate intrastate activity under the third prong, the
Court will uphold the regulation if:

1. The regulation is of economic or commercial activity (e.g., growing wheat

or medicinal marijuana even for personal consumption); AND 
2. The court can conceive of a rational basis on which Congress could
conclude that the activity in aggregate substantially affects interstate
commerce.

However, if the regulated intrastate activity is noneconomic and noncommercial

(e.g., possessing a gun in a school zone), the Court generally will not aggregate the
effects and the regulation will be upheld only if Congress can show a direct
substantial economic effect on interstate commerce (which it usually will not be
able to do).

13th, 14th, and 15th Amendment Enforcement Power

Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection
and due process, and voting rights) contain a provision that authorizes Congress to
pass “appropriate legislation” to enforce the civil rights guaranteed by those
Amendments.

Necessary and Proper Clause

Congress can exercise those powers enumerated in the Constitution plus all
auxiliary powers necessary and proper to carry out all powers vested in the federal
government.  Thus, Congress has the power to make all laws necessary and proper
for executing any power granted to any branch of the federal government. The
Necessary and Proper Clause standing alone cannot support federal law —
it MUST work in conjunction with another federal power.

For example, the following congressional powers have been deemed "necessary

and proper" for carrying into execution other powers vested in the federal
government — the power to:
  To pass laws to carry out treaties;
 To organize a department of government;
 To collect revenue;
 To acquire property by eminent domain;
 To make treasury notes legal tender;
 To create corporations;
 To exclude and deport aliens;
 To pass banking laws;
 To determine marine law;
 To regulate the civil service;
 To address foreign affairs;
 To build the Capitol and White House;
 To protect voters from intimidation;
 To enact the Federal Criminal Code.

See John B. Attanasio, Joel K. Goldstein, Understanding Constitutional Law § 3.03

(4th ed. 2012).

While Congress does not have the express power to investigate, the Necessary and
Proper Clause allows Congress broad authority to conduct investigations that are
necessary and proper to carry out its power of legislation. McGrain v. Daugherty,
273 U.S. 135 (1927). Notably, the Speech and Debate Clause under Article I,
Section 6 prevents members of Congress from being questioned in regard to
speech and debate that took place during a session in either House of Congress (or
in the discussion relating to the business of the session before the session took
place).

Delegation of Legislative Power

Legislative power may generally be delegated to the executive or judicial branch

provided that:

1. Intelligible standards are set to guide the delegation; AND 

o "Applying this 'intelligible principle' test to congressional delegations,
our jurisprudence has been driven by a practical understanding that in
our increasingly complex society, replete with ever changing and
more technical problems, Congress simply cannot do its job absent an
ability to delegate power under broad general directives. Accordingly,
this Court has deemed it "constitutionally sufficient" if Congress
 clearly delineates the general policy, the public agency which is to
apply it, and the boundaries of this delegated authority." Mistretta v.
United States, 488 U.S. 361 (1989).
2. The power is NOT uniquely confined to Congress (e.g., power to declare
war).

For example, Congress is allowed to delegate their power to collect taxes under

Article I, Section 8 to the IRS using the intelligible standards set out in the Internal
Revenue Code. 

Powers of the President

Scope of Presidential Power

In order to determine whether the President’s actions are within the scope of his
constitutional power, the court must consider the degree of congressional
authorization the President is acting with:

 When the president is acting with the express or implied authorization of

Congress, presidential authority is at its highest, and the action is strongly
presumed to be valid.
 When Congress has not spoken, presidential authority is diminished, and the
action is invalid if it interferes with the operations or power of another
branch of government.
 When Congress has spoken to the contrary, presidential authority is at its
lowest, and the action is likely invalid.

Domestic Powers

The President has the power to:

 Reprieve or pardon federal offenses, except in cases of impeachment;

 Appoint all officers of the United States (e.g., ambassadors, Supreme Court
Justices, etc.) with the advice and consent of the Senate;
 Remove any executive appointee without cause and without Senate
approval, except in cases of federal judges (federal judges may only be
removed by impeachment); AND
  Veto any bill presented to her by Congress.
o Procedure. Upon presentment of a bill, the President has 10 days to
act. If the president signs the bill, it becomes law. If the President does
nothing, the bill becomes law without the President’s signature so
long as Congress is still in session at the end of the 10-day period. If
the President vetoes the bill by sending it back with objections,
Congress may override the veto and enact the bill into law by a two-
thirds vote in each house.
o Line Item Veto. The President may NOT exercise a line item veto
(refusing part of a bill and approving the rest). 

Foreign Powers

The President has the following foreign powers:

 Commander in Chief. Although the President is commander in chief of the

military, only Congress may declare war. However, the President may take
military action without a declaration of war in the case of actual hostilities
against the United States.
 Treaties. The President has the exclusive power to negotiate treaties,
although a treaty may only be ratified with the concurrence of two-thirds of
the Senate.
 Executive Agreements. The President has the power to enter into executive
agreements (e.g., trade agreements) with foreign nations without approval of
the Senate.

Presidential Accountability

Impeachment

Article II, Section 4 of the U.S. Constitution states, "The President, Vice President
and all civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors."

Thus, impeachment and removal of an officer is a 2-step process:

1. The House of Representatives may impeach (i.e., formally bring charges) an

officer with a majority vote;
 2. After an officer is impeached by the House of Representatives, the Senate
conducts an impeachment trial and may convict and remove the officer with
a 2/3 vote.

Who may be impeached under Article II, Section 4?  "The President, Vice
President and all civil Officers of the United States" may be impeached under
Article II, Section 4. For impeachment purposes, "civil officers of the United
States" generally includes high-ranking presidential appointees (e.g., federal
judges, cabinet members, etc.). Members of Congress may NOT be impeached
under Article II, Section 4.

What causes may an officer be impeached for under Article II, Section
4? Article II, Section 4 states, "treason, bribery, or other high crimes and
misdemeanors." However, Congress has broad discretion to determine what
actions constitute "treason, bribery, or other high crimes and misdemeanors." To
see a complete list of offenses that officers have been impeached for, you can visit
the following
link: https://history.house.gov/Institution/Impeachment/Impeachment-List/

Executive Privilege

Can the President of the United States be compelled to disclose information he

deems confidential and contrary to the public interest?

Yes. Under United States v. Nixon, 418 U.S. 683 (1974), absent a claim of need to
protect military, diplomatic, or sensitive national security secrets, the President
may be compelled to disclose confidential information in criminal proceedings so
long as the prosecution can establish a "need" for the evidence (i.e., there is no
absolute executive privilege.)

"Absent a claim of need to protect military, diplomatic, or sensitive national

security secrets, the confidentiality of Presidential communications is not
significantly diminished by producing material for a criminal trial under the
protected conditions of in camera inspection, and any absolute executive privilege
under Art. II of the Constitution would plainly conflict with the function of the
courts under the Constitution." Id at 685.

"Although the courts will afford the utmost deference to Presidential acts in the
performance of an Art. II function, United States v. Burr, 25 F.Cas. 187, 190, 191-
192 (No. 14,694), when a claim of Presidential privilege as to materials
subpoenaed for use in a criminal trial is based . . . not on the ground that military or
diplomatic secrets are implicated, but merely on the ground of a generalized
interest in confidentiality, the President's generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending criminal trial
and the fundamental demands of due process of law in the fair administration of
criminal justice." Id.

Executive Immunity

The President has absolute immunity from civil damages based on any action he

took within his official responsibilities as President; however, there
is no immunity for acts that allegedly occurred before taking office. 

Introduction to Federalism: The Supremacy Clause and Preemption

Exclusive Federal Powers

Power of States Expressly Limited: Some powers are exclusively federal because

the Constitution limits or prohibits the use of the power by states (e.g., treaty
power, coinage of money, etc.).

Inherent Federal Powers: Other powers are exclusively federal because the

nature of the power itself is such that it can be exercised only by the federal
government (e.g., declaration of war, federal citizenship, etc.)

Exclusive State Powers

Reserved Powers: The 10th Amendment provides that all powers not assigned by
the Constitution to the federal government are reserved to the states, or to the
people.

Federal Regulation of States

The federal government has virtually unlimited power to regulate the states.
Generally, Congress may regulate the states so long as it is exercising an
enumerated power. While Congress cannot command (i.e., compel) state
legislatures to enact specific legislation or administer federal regulatory programs,
it may encourage state action through the use of its taxing and spending powers
(e.g., Congress can condition 5% of federal highway funds to states provided that
the states maintain a minimum drinking age of 21. See South Dakota v. Dole, 483
U.S. 203 (1987)).

The Supremacy Clause and Preemption

The Supremacy Clause under Article 6, Section 2 of the U.S. Constitution provides

that federal law is the “supreme law of the land.” Thus, any state law that directly
or indirectly conflicts with a federal law is void under the Supremacy Clause.

Express Preemption: Federal law expressly preempts state law when:

 The Constitution makes the federal power exclusive; OR

 Congress has enacted legislation that explicitly prohibits state regulation in
the same area.

Implied Preemption: Federal law implicitly preempts state law when:

 Congress intended for federal law to occupy the entire field (intent to

occupy a field can be inferred from a framework of regulation so pervasive
that Congress left no room for states to supplement it or when there is a
federal interest so dominant that the federal system will be assumed to
preclude enforcement of state laws on the same subject);
 The state law directly conflicts with the federal law (e.g., requiring conduct
that is forbidden by the federal law or making it impossible to comply with
both); OR
 The state law indirectly conflicts with the federal law by creating an
obstacle to or frustrating the accomplishment of the federal law’s purpose.

Dormant Commerce Clause

The Dormant Commerce Clause is a constitutional principle inferred from the

Commerce Clause (not specifically enumerated). If Congress has not enacted
legislation in a particular area of interstate commerce, then the states are free to
regulate, so long as the state or local action does NOT:

 Discriminate against out-of-state commerce;

 Regulate wholly out-of-state activity; OR
 Unduly burden interstate commerce.
 o A state law that discriminates against interstate commerce in a way
that operates as a tariff or trade barrier against out-of-state interests is
subject to strict scrutiny and is virtually per se unconstitutional.
o A nondiscriminatory state law (i.e., the law applies equally to in-state
and out-of-state participants) that imposes an incidental burden on
interstate commerce will be unconstitutional if the burden it imposes
is clearly excessive in relation to the putative local benefits.

Legislation that violates any of the above requirements is generally deemed

unconstitutional UNLESS:

 The state is acting as a market participant rather than a market regulator;

 The legislation favors state or local government entities that are performing
a traditional government function; OR 
 Congress explicitly permits the legislation.

State Action Requirement

Generally, the Constitution protects against wrongful conduct by the government,

not private parties (there is an exception for the prohibition of slavery, which
applies to the government and private parties). Thus, state action is required to
trigger an individual’s constitutional protections. State action may exist in cases of
private parties when:

 A private person carries on activities that are traditionally performed

exclusively by the state; OR 
 There are sufficient mutual contacts between the conduct of a private party
and the government (this is a question of the degree of state involvement).

Procedural Due Process

The Due Process Clause of the 14th and 5th Amendments guarantees that no
person shall be denied life, liberty, or property without due process of law. Thus, a
fair process (e.g., notice and hearing) is required for a government agency to
individually take a person’s life, liberty, or property. Only intentional (not
negligent) deprivation of these rights violates the Due Process Clause.

The term “liberty” includes more than just freedom from bodily restraints (e.g., it
includes the right to contract and to engage in gainful employment). A deprivation
of liberty occurs if a person:
  Loses significant freedom of action; OR
 Is denied a freedom provided by the Constitution or a statute.

The term “property” includes more than personal belongings and realty. A

deprivation of property occurs if a person has a legitimate claim or entitlement that
is not fulfilled (e.g., continued attendance at public school, welfare benefits, etc.).

The type and extent of procedural due process that is required is determined by a
three-part balancing test that weighs:

 The importance of the individual’s interest that is being affected; AND 

 The value of specific procedural safeguards to that interest; AGAINST 
 The government interest in fiscal and administrative efficiency.

Substantive Due Process

Analysis. A governmental regulation that infringes upon a fundamental right is

subject to the strict scrutiny standard of review, while a governmental regulation
that does NOT infringe upon a fundamental right is subject to
the rational basis standard of review.

Strict Scrutiny. The government must prove that the regulation is the least
restrictive means to achieve a compelling government interest (very difficult to
prove).

Rational Basis. The challenger must prove that the regulation is NOT rationally

related to any legitimate government interest (very difficult to prove).

Fundamental Rights. Some rights are so deeply rooted in our nation’s tradition

and history that they are considered fundamental. These rights include:

1. The right to interstate travel;

2. The right to vote; AND 
3. The right to privacy, including:
o The right to marry;
o The right of married persons to use contraceptives;
o The right of adults to engage in non-commercial, consensual sex;
 o The right of parents to make decisions regarding the care, custody,
and control of their children (including the right to privately educate a
child outside the public school system); AND 
o The right of related persons to live together in a single household.

Abortion. The right to privacy also includes the right of a woman to have an

abortion without interference from the state under certain circumstances. However,
normal strict scrutiny cannot be applied because the state has two compelling
interests that compete: the woman’s health and protecting the fetus that may
become a child.

The Supreme Court has adopted two basic rules:

 Pre-Viability Rule. Before viability (a realistic possibility that the fetus

could survive outside the womb), a state may adopt a regulation protecting
the mother’s health and the life of the fetus if the regulation does not place
an undue burden on the woman’s right to obtain an abortion.
 Post-Viability Rule. Once the fetus is viable, the state’s interest in the
fetus’s life can override the woman’s right to obtain an abortion, but the
state cannot prohibit the woman from obtaining an abortion if it is necessary
for her health.

The government has NO obligation to pay for abortions.

Equal Protection

The Equal Protection Clause of the 14th Amendment prohibits the government

from denying citizens equal protection of the laws. When the government makes
laws that classify people into groups, the constitutionality of the law will be
evaluated according to the type of classification made (i.e., whether the group is a
suspect classification, quasi-suspect classification, or other classification).

If a suspect classification is involved, the strict scrutiny standard applies.

Classifications are suspect if they are based on race, ethnicity, national
origin, or alienage (alienage is only suspect if the classification is made by state
law). Under the strict scrutiny standard, the government must prove that the
regulation is the least restrictive means to achieve a compelling government
interest.
If a quasi-suspect classification is involved, the intermediate scrutiny standard
applies. Classifications are quasi-suspect if they are based
on gender or legitimacy (non-marital children). Under intermediate scrutiny, the
government must show that the classification is substantially related to an
important government interest.

Governmental Intent. For strict or intermediate scrutiny to be applied,

there MUST be intent on the part of the government to discriminate. A
discriminatory effect or disparate impact toward a group of people alone
is NOT enough to show governmental intent. Governmental intent may be shown
by:

 A law that is discriminatory on its face;

 A discriminatory application of a facially neutral law; OR
 A discriminatory motive behind a facially neutral law.

For all other classifications (e.g., age, disability, and wealth classifications), the

rational basis standard applies. Under rational basis, the challenger must prove that
the regulation is NOT rationally related to any legitimate government interest.

Exam Tip. If a law limits liberty of ALL persons to engage in some activity, it is

usually a due process issue. If a law treats a person or class of persons differently
from others, it is usually an equal protection issue.

Affirmative Action

States may implement regulations to remedy past discrimination if the class has
actually suffered persistent and readily identifiable past discrimination. A race-
based plan cannot be used to remedy general past “societal discrimination.” The
level of scrutiny applied to the regulation depends on the classification.

Takings Clause (Eminent Domain)

The power of the government to take private property for public purposes is known
as “eminent domain.” The Takings Clause of the 5th Amendment acts as a check
on this power. It provides that:

1. Private property may be taken;

2. For public use;
 o The government may take private property not only for its own direct
use, but also to transfer the property to another private party. To
challenge this taking as not being made for public use, the challenger
must prove that the transfer of property is NOT rationally related to
any conceivable public purpose (very difficult to prove).
3. With just compensation.
o Just compensation requires payment of fair market value (the
reasonable value of the property at the time of the taking). The value
is measured in terms of loss to the owner, not the benefit to the
government.

Seizure of Property. The classic application of the Takings Clause is the seizure

of private property for governmental use (e.g., acquiring private land to construct a
police station). Here, the property owner’s main challenge is whether he received
just compensation.

Regulatory Taking. Generally, a governmental regulation that adversely affects a

person’s property interest is NOT a taking (does not require just compensation).
However, it is possible for a regulation to rise to the level of a taking (requiring
just compensation). In determining whether a regulation constitutes a taking,
the Penn Central factors are considered:

 The economic impact of the regulation on the property owner;

 The extent to which the regulation interferes with the owner’s reasonable
investment-backed expectations regarding the use of the property; AND 
 The character of the regulation (including the degree to which it will benefit
society, how the regulation distributes the burdens and benefits among
property owners, and whether the regulation violates any of the owner’s
essential attributes of property ownership, such as the right to exclude others
from the property).

Per se Takings. A governmental regulation clearly results in a taking when the

regulation results in a:

 Permanent physical occupation of the property (e.g., a law requiring a

landlord to permit a cable company to permanently install equipment on the
landlord’s property); OR 
 Permanent total loss of the property’s economic value (a regulation that
results in a dramatic decline in the value of the property does not necessarily
constitute a taking).
Exaction as a Taking. A local government may exact promises from a developer
(e.g., setting aside a portion of the land being developed for a public use in
exchange for issuing the necessary construction permits) without violating the
Takings Clause if there is:

1. An essential nexus between legitimate state interests and the conditions

imposed on the property owner; AND
2. A rough proportionality between the burden imposed by the conditions on
the property owner and the impact of the proposed development.

Privileges and Immunities Clause

The Privileges and Immunities Clause prohibits one state from discriminating

against the citizens of another state (does not apply to corporations or aliens). Out-
of-state citizens are protected against discrimination with respect to any
fundamental rights or essential activities (e.g., pursuit of employment, transfer of
property, engaging in the political process, etc.).

However, discrimination against out-of-state citizens may be valid if the state can
show a substantial reason for the difference in treatment. A substantial reason
exists if:

1. The out-of-state citizens either cause or are part of the problem that the state
is attempting to solve; AND
2. There are no less restrictive means to solve the problem.

3. Contracts Clause

4. The Contracts Clause limits the ability of states to enact laws that

retroactively impair contract rights. It does NOT affect contracts not yet
made. There is no comparable clause applicable to the federal government;
however, flagrant contract impairment would likely violate the 5th
Amendment Due Process Clause.
5. State legislation that substantially impairs an existing private contract (a
contract between private parties) is invalid UNLESS the legislation
passes intermediate scrutiny (e.g., the challenged law must further an
important government interest by means that are substantially related to that
interest).
 6. State legislation that substantially impairs an existing public contract (a
contract in which the state is a party) is tested by the same basic test as
above, but will likely receive stricter scrutiny.

Ex Post Facto Laws

The state or federal government may not pass an ex post facto law. An ex post
facto law is a law that retroactively alters criminal offenses or punishments in a
substantially prejudicial manner for the purpose of punishing a person for some
past activity.

A statute retroactively alters a law in a substantially prejudicial manner if it:

 Makes criminal an act that was innocent when done;

 Prescribes greater punishment for an act than was prescribed when it was
done; OR 
 Reduces the evidence required to convict a person of a crime from what was
required when the act was done.

 Bills of Attainder

 Bills of attainder are legislative acts that inflict punishment on individuals

without a judicial trial. Both state and federal governments are prohibited
from passing bills of attainder.

Free Speech

GENERAL PRINCIPLES

Scope of Speech

The freedom to speak includes the freedom not to speak. Thus, the government
generally cannot require people to salute the flag or display other messages with
which they disagree (e.g., a person need not display the state motto “live free or
die” on a license plate).
The freedom can extend to symbolic acts undertaken to communicate an idea (e.g.,
wearing a black armband to protest war), although the government may regulate
such acts if:

1. The government has an important interest independent of the suppression of

speech; AND 
2. The incidental burden on speech is no greater than necessary to further that
interest.

Overbreadth and Vagueness

Overbreadth Doctrine. If a regulation of speech or speech-related conduct

punishes a substantial amount of protected speech in relation to its plainly
legitimate sweep, the regulation is facially invalid (e.g., a regulation
outlawing ALL 1st Amendment activity in an airport terminal; a regulation
prohibiting all canvassers from going onto private residential property to
promote ANY cause without first obtaining a permit).

Void for Vagueness Doctrine. A statute or regulation is void for vagueness IF it

does not put the public on reasonable notice as to what is prohibited.

Prior Restraints (Censorship)

A prior restraint is a regulation of speech that occurs before its expression.

Generally, prior restraints are presumed to be unconstitutional with limited
exceptions, including:

 There is a particular harm to be avoided (e.g., restraining a newspaper from

publishing troop movements); OR
 Procedural safeguards are provided to the speaker (e.g., the standards must
be narrowly drawn, reasonable, and definite).

REGULATION BASED ON CONDUCT

Content vs. Conduct

Speech regulations can generally be categorized as either:

  Content-based (regulations forbidding communication of specific
ideas); OR 
 Conduct-based (regulations of the conduct associated with speaking, such
as the time of speech, sound level, etc.).

Content-Based Restrictions. It is presumptively unconstitutional to place

burdens on speech because of its content, except for certain categories of
unprotected speech (e.g., obscenity, defamation, etc.). However, content-
neutral speech regulations generally are subject to intermediate scrutiny — they
must:

1. Advance important interests unrelated to the suppression of speech; AND

2. NOT burden substantially more speech than necessary (i.e., narrowly
tailored) to further those interests.

Conduct-Based Restrictions. Conduct related to speech can be regulated by

content-neutral time, place, and manner restrictions (see below).

Time, Place, and Manner Restrictions

The government has power to regulate the conduct associated with speech,

although the breadth of this power depends on whether the forum involved is a
public forum, a designated public forum, a limited public forum, or a nonpublic
forum.

Public Forums and Designated Public Forums

 Public property that has historically been open to speech-related activity is

called a public forum (e.g., streets, sidewalks, and public parks).
 Public property that has NOT historically been open to speech-related
activities, but which the government has made open for such activities on a
permanent or limited basis, by practice or policy is called
a designated public forum (e.g., schoolrooms that are open for after-school
use by social, civic, or recreation groups).
 The government may regulate speech in public forums and designated public
forums with reasonable time, place, and manner regulations that:
1. Are content-neutral (i.e., are subject matter and viewpoint neutral);
2. Are narrowly tailored to serve an important government
interest; AND
 3. Leave open alternative channels of communication.

Limited Public Forums and Nonpublic Forums

 Government property that has NOT historically been linked with speech and

assembly but has been opened for specific speech activity is called
a limited public forum (e.g., school gym opened to host a debate on a
particular community issue).
 Government property that has NOT historically been linked with speech and
assembly and has NOT been opened for specific speech activity is called
a nonpublic forum (e.g., military bases, schools while classes are in
session, government workplaces, etc.).
 The government may regulate speech in limited public forums and
nonpublic forums if the regulations are:
1. Viewpoint neutral; AND
2. Reasonably related to a legitimate government purpose

Unprotected Speech

To be valid, restrictions on the content of speech must be necessary to achieve a

compelling government interest. The government has a compelling interest in the
following categories of speech, which are deemed “unprotected speech” under
the 1st Amendment:

 Inciting imminent lawless action;

 Fighting words;
 Obscenity;
 Defamatory speech; AND
 Some commercial speech

Inciting Imminent Lawless Action. Speech can be restricted if it creates a clear

and present danger of imminent lawless action. It must be shown that:

1. Imminent illegal conduct is likely; AND 

2. The speaker intended to cause it. 

Fighting Words. Speech can be restricted if it constitutes fighting words. Fighting

words are personally abusive words that are likely to incite immediate physical
retaliation in an average person. Words that are merely insulting or
annoying are NOT enough. 

The Supreme Court does NOT tolerate fighting words statutes that are designed to
punish only certain viewpoints (e.g., prohibiting only fighting words that insult on
the basis of race, religion, or gender).

True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried

out with an intent to intimidate).

Obscenity. Speech can be restricted if it constitute obscenity. Speech is obscene if

it describes or depicts sexual conduct that, taken as a whole, by the average
person:

1. Appeals to the prurient interest in sex, using a community standard;

2. Is patently offensive; AND 
3. Lacks serious literary, artistic, political, or scientific value, using a national
reasonable person standard.

Commercial Speech. Generally, commercial speech is afforded 1st Amendment

protection if it is truthful. However, commercial speech that proposes unlawful
activity or that is false, misleading, or fraudulent may be restricted as unprotected
speech. Any other regulation of commercial speech will be upheld only if it:

1. Serves a substantial government interest;

2. Directly advances that interest; AND
3. Is narrowly tailored to serve that interest.

Therefore, complete bans on truthful advertising of lawful products are very

unlikely to be upheld due to a lack of narrow tailoring.

Freedom of Association

Freedom of Association protects the right to form or participate in any group,

gathering, club, or organization without government interference. However, the
government may limit this right if they can satisfy strict scrutiny.
Public Employment. A person may only be punished or deprived of public
employment based on association if that individual:

1. Is an active member of a subversive organization;

2. Has knowledge of the organization’s illegal activity; AND
3. Has a specific intent to further those illegal objectives.

Free Exercise Clause

The Free Exercise Clause prohibits the government from punishing someone on

the basis of her religious beliefs or interfering with her exercise of religion. For
example, it forbids:

 State governments from requiring office holders or employees to take a

religious oath;
 States from excluding clerics from holding public office; AND
 Courts from declaring a religious belief to be false.

The Supreme Court has not defined what constitutes religious belief, but it is clear
that religious belief need not come from an organized religion or involve a
supreme being. The court has never held an asserted religious belief to be not
religious for 1st Amendment purposes.

The government can deny benefits or impose a restriction on someone based on

her religious beliefs so long as there is a compelling interest (i.e., satisfies strict
scrutiny). However, the Supreme Court has never found an interest so compelling
that it justifies such action.

Establishment Clause

The Establishment Clause, along with the Free Exercise Clause, compels the
government to pursue a course of neutrality toward religion. Government action
challenged under the Establishment Clause will be found invalid, unless the action:

1. Has a secular purpose;

2. Has a primary effect that neither advances nor inhibits religion; AND 
3. Does NOT produce excessive government entanglement with religion. 
This is known as the Lemon Test. However, more recent cases have simply focused
on whether the action is neutral between the religious and nonreligious when there
is no endorsement of a particular religion.

How to Issue-Spot Constitutional Law Fact Patterns

To approach a Constitutional Law fact pattern effectively, you need to be able to

identify relevant issues from 3 major categories: 

 Separation of Powers ("Power of the Feds")

 Federalism
 Individual Rights