AN OVERVIEW OF CONSTITUTIONAL LAW

UNDERPINNINGS OF CONSTITUTIONAL LAW

To understand Constitutional Law, it is helpful to put the US Constitution into context. The founders of the
US came from a country with a legal system ruled by a monarch under the notion that the monarch was
chosen by God and had plenary (unlimited) power (although that concept had been weakened somewhat by
the Magna Carta, the Habeas Corpus Act of 1679, and the Bill of Rights of 1689). While at the outset of the
American Revolution, it was not clear whether the founders of the US intended to abandon the concept of a
monarchy or only the monarch who was in charge (King of Great Britain), it was clear that after winning
their freedom from Great Britain, the founders chose to try self-government instead of a monarchy.

The founders lived in thirteen colonies (states, after they won their freedom from England). Each state had a
flavor of its own, and the founders wanted to preserve local rule. Yet, they also realized that the states had
to join together for certain purposes, such as defense against outside enemies, coinage of money to make
commerce and travel among the states convenient, etc. They had already tried a loose confederation of the
states and discovered that the central government needed more power than the loose confederation
provided. With these goals in mind, they formed a drafting committee to create a new governmental
system. What the drafting committee created is our current Constitution.

As constitutions go, the Constitution of the US is not very long—it was set out on only 4 pieces of large
parchment paper. It is divided into 7 parts (or Articles), the main provisions of which (Articles I - III)
establish the concept of federalism—giving the federal government specific powers and reserving all other
powers to the states (remember, the founders were fearful of strong central governments). Yet, in order to
ensure that the powers given to the federal government were not usurped or ignored by the individual states,
the Constitution includes a clause providing that federal law is the supreme law of the land (aptly called the
Supremacy Clause).

The main body of the Constitution divides the power of the federal government among 3 branches the
legislature (Article I), executive (Article II), and judiciary (Article III). The legislature makes laws, the
executive enforces laws, and the judiciary applies laws and determines their constitutionality (i.e., whether
the laws are proper under the Constitution). The division of powers (known as the separation of powers) is
a system of checks and balances intended to prevent one branch of the federal government from becoming
too powerful.

Nevertheless, some representatives of the states who attended the constitutional convention still worried
that the Constitution gave the federal government too much power. To allay their fears, it was agreed that
10 amendments would be added to the Constitution. These 10 amendments, often referred to as the Bill of
Rights, set out specific powers that were forbidden to the federal government. Indeed, the first eight
amendments largely protect the rights of individuals against infringement by the federal government. For
example, the 1st Amendment prohibits the federal government from abridging the freedom of speech, from
interfering with the free exercise of religion, and from establishing a religion; the 4th Amendment prohibits
the federal government from conducting unreasonable searches and seizures; and the 5th Amendment
prohibits the federal government from taking private property for public use without paying just (i.e., fair)
compensation for it.

The system was used for about 80 years, but then the country was torn apart by the Civil War. Southern
states wanted to secede from the union of states, largely over the legality of slavery. When the secessionists
lost, three amendments were added to the Constitution (the Thirteenth through Fifteenth Amendments).
These new amendments limited the power of state governments with respect to slavery and involuntary
servitude and provided that states must give all citizens the equal protection of the law and the privileges or
immunities of national citizenship. Perhaps the most important provision in the Civil
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War Amendments is the Due Process Clause of the 14th Amendment. That clause provides that the states
shall not deny persons of life, liberty, or property without due process of law. While this might not seem
very significant, it transformed the states’ power over individuals. Through constitutional interpretation
(see below), under a doctrine called selective incorporation, this clause has been held to make many of
the limitations that are imposed on the federal government by the Bill of Rights applicable to the states.

As you might expect, a governing document that was written over 200 years ago and that has been
amended only a few times since it was adopted either was written by a clairvoyant or was written loosely
enough to be adaptable to new situations. If the founders themselves were here today, they would no
doubt deny clairvoyance. Instead, in certain respects, the Constitution has been treated as a base
guideline. Think about it. If we took literally the First Amendment provision that Congress shall make no
law abridging the freedom of speech, we each would have the right to say anything we want anywhere we
want. Want to disturb the next session of Congress? Have at it. If the First Amendment proscription is
taken literally, the federal government could not make a law to stop you. And what makes a search or
seizure reasonable? Seizing on similar instances in which the Constitution did not provide a clear or
specific rule, long ago in Marbury v. Madison (1803) the Supreme Court held: “It is emphatically the
province and duty of the Judicial Department to say what the law is.” And so, the Constitution became a
living document, able to be adjusted to fit the changing times. And it is the courts that decide what the
Constitution’s provisions mean.

There are several philosophies regarding constitutional interpretation. Strict constructionists claim to
construe the Constitution narrowly and often literally. Liberals, on the other hand, often ask WWFD
(what would the framers do?). In making their determinations, both camps will look at what was going on
when the Constitution was adopted in order to discern the intent of the country’s founding fathers.
Moreover, to avoid the appearance of arbitrariness, the courts are also guided by the doctrine of stare
decisis (the concept that the courts will follow the decisions of previous courts whenever possible).

Outside of the bar exam, the study of constitutional law is considered a scholarly endeavor. Countless
articles have been written about the justices on the Supreme Court, the movements in constitutional
interpretation, how the Supreme Court might rule on particular issues, and so forth. In that arena, there
are no right answers. Why? The Supreme Court is comprised of nine of the most distinguished jurists in
the country, and many of their decisions are made by a vote of 5-4. That doesn’t work on the bar exam.
For bar exam purposes, constitutional law is a history exam. You will not be asked what the Supreme
Court might do in a particular situation, but rather what it has done. The exam focuses on what the
powers of the three branches are, what powers belong to the federal government as opposed to the states,
what provisions of the Constitution are applicable, what rights individuals have against the government,
and what tests apply in certain situations. If you think about it more, you will see that this knowledge will
also serve you well in practice. Since reasonable minds differ as to what the Constitution requires in
certain areas, you need knowledge of the applicable provisions, tests, etc., but then it is up to you to craft
an argument convincing a judge that the provisions should be interpreted in your client’s favor.

One final note. The material below is intended to give you an overview of common constitutional law
issues. It does not cover every possible exception, special case, etc. While such special situations arise
both in practice and on the bar exam, they will have to wait for a more intensive study of constitutional
law. The goal here is to give you a simple overview of the big picture and the basic tests used to resolve
constitutional issues. This material is key to understanding constitutional law in practice and on the bar
exam.

With all of the above in mind, you are ready to embark on your study of constitutional law. The material
below is divided into two main sections. The first section deals with intergovernmental relations—the
 CONSTITUTIONAL LAW OVERVIEW 3

division of power among the branches of the federal government and between the federal government and
state governments. The second section deals with individual rights—the limitations placed on
governments when dealing with people.

INTERGOVERNMENTAL RELATIONS

SEPARATION OF POWERS AMONG THE BRANCHES OF THE FEDERAL GOVERNMENT

Powers of the Legislature

Article I of the Constitution vests legislative power (i.e., the power to make laws) in two houses: (i) the
Senate and (ii) the House of Representatives. Each state elects two senators, but the number of
representatives in the house varies among the states based on population. Who may be a senator or a
representative and the way the Senate and House work together to pass laws takes up much of Article I,
but such things are not commonly tested on any bar exam and rarely come up in the practice of law, so we
will not waste our time discussing such things. But what is tested with some frequency are the specific
powers of Congress. Remember, the federal government is a government of limited power. As a general
rule, Congress may pass laws only on the subjects listed in Article I, Section 8. If Article I, Section 8,
does not give Congress the power to legislate in a particular area, Congress may not legislate in that area.
The most commonly tested federal powers are the power to tax, the power to spend, and the commerce
power.

The Taxing Power: The taxing power gives Congress power to impose taxes. Congress can tax almost
anything, and a taxing measure typically will be found to be within the taxing power as long as it appears
to have a good chance at producing revenue. A tax that is not likely to raise revenue typically is found to
be a form of regulation. Such a “tax” still will be found valid if Congress has the power to regulate the
item or activity taxed, but if Congress lacks such power, the regulatory tax will be found invalid. For
example, Congress does not have the general power to regulate the crime of murder. Therefore, Congress
may not impose a $1 million murder tax (assuming such a tax is unlikely to raise much revenue).
However, Congress does have the power to regulate bankruptcy. Therefore, Congress could impose a $1
million tax on persons who have filed for bankruptcy even though such a tax is not likely to generate
much revenue.

The Spending Power: The power to spend is treated separately from the power to tax. Congress may
spend to provide for the common defense and general welfare. Because what is related to general welfare
is broader than the powers enumerated in Article 8, Congress may spend money to support things that it
otherwise could not legislate over. For example, Article 8 does not give Congress general power to
legislate for the health, safety, and morals of U.S. citizens (this power is commonly called the general
police power; the states have such a power, but Congress does not). Nevertheless, under the spending
power, Congress can use federal money to fund a program encouraging moral conduct.

There is one tricky matter under the spending power—grants of money with “strings” attached. As we
just noted, Congress can spend to support things over which it does not have the power to legislate. But
Congress can put strings on its money—conditions that must be followed in order to receive the money
(e.g., “States, you may have this money to build and repair state highways if you maintain age 21 as the
minimum drinking age in your state”). Of course, the conditions themselves must be constitutional. For
example, Congress could not condition a grant of funds to public schools on the schools’ agreement to
deny First Amendment rights to their students.
4 CONSTITUTIONAL LAW OVERVIEW

The Commerce Power: Article I, Section 8, gives Congress the power to regulate commerce among the
states. This is a very broad power. It allows Congress to adopt laws concerning:

(i) The channels of interstate commerce, such as roads, airports, and railways;

(ii) The instrumentalities of interstate commerce, such as trucks, trains, and airplanes; and

(iii) Economic or commercial activities that have a substantial effect on interstate commerce—either
in themselves or in aggregate with all similar activities.

The big questions here usually come under the third prong. That prong gives Congress power to regulate
some intrastate activity (i.e., an activity that takes place only in one state), but the facts must be carefully
examined. If the activity is not economic or commercial, the effect on interstate commerce will not be
aggregated and will be outside of Congress’s reach. Thus, Congress can prohibit a farmer from growing
wheat for personal consumption, because growing wheat is a commercial activity and if all farmers grew
wheat for their own consumption, it would have a substantial effect on the wheat market. But Congress
cannot use this prong to prohibit carrying a gun in a school zone—because carrying a gun in a school
zone is not an economic activity.

Necessary and Proper Clause: Article I also gives Congress the power to adopt laws that are necessary
and proper (that is, appropriate) for executing any power granted to Congress or any other branch of
government. For example, Congress does not specifically have the power to regulate banks, but it does
have the power to coin money, regulate commerce, borrow money, and tax. Given these specific powers,
it is proper for Congress to also regulate banks.

Other Powers: We have discussed only the heavily tested powers above. Section 8 grants other powers
that are sometimes tested (e.g., to declare war, raise an army and navy, establish a post office, grant
patents, and regulate bankruptcy). You will learn about these in more depth while studying for the bar
exam.

Powers of the President

Article II lays out the powers of the President. Much of the constitutional text concerns the election of the
President and qualifications—which rarely come up in the everyday practice of law and are not typically
tested. And while the Constitution grants the President some specific powers (e.g., to enter treaties, to
grant pardons, to appoint ambassadors), what is most heavily litigated and tested on exams are
presidential powers that are not specifically mentioned in the Constitution but are assumed from the fact
that the President is the country’s chief executive. These include the President’s power to issue executive
orders concerning domestic issues and the President’s power to enter into executive agreements with
foreign countries.

Executive Orders: As the chief executive of the United States, the President has some authority to issue
executive orders over domestic affairs (i.e., “internal” affairs—things going on within the United States).
But that power is not well-defined. The best guide concerning the power was set out by Justice Jackson in
a concurring opinion in Youngstown Sheet & Tube v. Sawyer (1952):

(i) If the President acts with the authority or consent of Congress (e.g., pursuant to a law giving the
President permission to act or recognizing with approval that the President has acted in the area in
the past), the President’s power is at its maximum and such actions will likely be upheld;
 CONSTITUTIONAL LAW OVERVIEW 5

(ii) If the President acts where Congress was silent, the President’s action will likely be upheld as
long as it does not take a power of another branch or prevent another branch from carrying out its
tasks; but

(iii) If the President acts against the will of Congress, the action is likely invalid (e.g., if a law
prohibits the President from seizing private businesses within the United States in times of war,
even though the President has considerable power during war, the President cannot seize a steel
mill within the United States to keep it running in order to sustain the war effort).

Executive Agreements: Article II specifically gives the President the power to make treaties with other
countries “with the advice and consent” (i.e., approval) of at least two-thirds of the members of the
Senate. Such treaties have the same legal standing or weight as other laws of the United States. But it has
been long recognized that the President can also enter into agreements with foreign countries as the chief
executive without going to Congress. Such agreements are valid if they do not conflict with the
Constitution, treaties, or federal laws.

Power as Commander in Chief: In addition to being the chief executive of the United States, the
President is also the commander in chief of the U.S. military. As such, the President has the power to
commit troops to combat. But, as briefly mentioned before, Congress has the power to declare war and
fund the armed forces. Therefore, the President’s power over the armed forces is subject to Congress’s
power over purse strings (i.e., Congress’s power to choose whether to allocate money to the military).

Veto Power: The President’s veto power is sometimes tested. The presidential veto power is part of the
system of checks and balances among the three branches of the federal government. Legislation passed by
Congress does not become law if the President vetoes the legislation, unless the veto is overridden by a
vote of at least two-thirds of the members of each the House and the Senate.

Line Item Veto: Some legislatures are prohibited from adopting laws that address more than one issue, but
this rule does not apply in Congress. The ability to have laws include unrelated items often is used as a
bargaining chip among members of Congress (e.g., Representative A agrees to support a law proposed by
Representative B if Representative B agrees to include a law that Representative A has been unsuccessful
in getting passed into law on its own). Therefore, laws that are presented to the President often address
more than one issue. The President must accept or veto the law as presented. The President has no power
to veto some provisions of a law and accept others (i.e., the President does not have the power to execute
a line-item veto).

Executive Privilege: In addition to the presidential powers discussed above, there is one other important
feature of the presidency: the executive privilege. The executive privilege is the right of the President
(and certain officers under the President) to keep confidential communications confidential. However, if
such communications are needed in a criminal trial, the court may order their disclosure (again, showing
one of the checks and balances among the branches of government—the President’s decision to keep
documents and communications secret is subject to review by the courts).

The Take Care Clause: The Constitution requires the President to take care to execute the laws of the
United States. While this is not a power, it is an important limitation on the President. Essentially, it is a
requirement to follow laws. For example, if Congress sets aside funds to build a new executive office
building, the President cannot use those funds for some other purpose, such as to fund a new weapons
system or to build a new monument.
6 CONSTITUTIONAL LAW OVERVIEW

Powers of the Judiciary

Article III of the Constitution specifically provides for federal courts. Like the other branches of the
federal government, the federal courts are limited. Federal courts may hear only matters related to the
cases over which the Constitution gives them power. The Constitution allows the federal courts to hear
cases and controversies:

(i) Arising under the Constitution, laws, or treaties of the United States;

(ii) Of admiralty and maritime jurisdiction;

(iii) In which the United States is a party;

(iv) Between two or more states;

(v) Between a state and citizens of another state;

(vi) Between citizens of different states;

(vii) Between citizens of the same state claiming lands under grants of different states; and

(viii) Between a state or citizens thereof and foreign states, citizens, or subjects.

The Constitution specifically establishes only the Supreme Court and allows Congress to create other
federal courts, which it has. Besides the Supreme Court, the federal system includes trial level courts
(called district courts) and first-level appellate courts (called the courts of appeals). Decisions of the
courts of appeals sometimes are appealed to the Supreme Court. The Supreme Court has discretion (i.e.,
the power to decide whether or not) to hear most cases. A request for the Supreme Court to review a case
is called a petition for a writ of certiorari.

The Power of Judicial Review: In high school government classes, students in the United States are
taught that the legislature makes the laws, the executive enforces the laws, and the judiciary applies or
interprets the laws. Long ago, the Supreme Court declared that it is the province and duty of the judiciary
to declare what the law is. Another important function of the federal courts is to determine whether a law
or other government act is constitutional (another of the many checks and balances among the branches of
government—laws passed by Congress and approved by the President still may be found invalid by the
courts and are subject to interpretation by the courts). And this power of the federal courts extends not
only to federal laws and acts, but also to state laws and acts. The Supreme Court can review a state law to
determine whether the state law violates the federal Constitution. Because the Constitution provides that it
is the supreme law of the land, state laws must comply with the Constitution as well as federal laws.

Case and Controversy Limitation: As noted above, the federal courts can hear “cases and
controversies.” The Supreme Court has interpreted that term to limit federal court jurisdiction in a few
respects. First, it bans federal courts from hearing cases seeking advisory opinions. For example, a
member of Congress cannot bring a case saying, “I’m thinking of sponsoring a law prohibiting television
stations from broadcasting religious services. Please tell me, Supreme Court, would such a law be
constitutional?” There must be two opposing sides in order for there to be a case or controversy. The
rationale is that if there are two sides disagreeing with each other, they will each present the best
arguments for their side, ensuring that the Court will make a well-informed decision. In our example, the
member of Congress alone is seeking the Court’s advice; there are not two opposing sides arguing with
each other.
 CONSTITUTIONAL LAW OVERVIEW 7

Second, the case or controversy limitation prohibits the federal courts from hearing cases that are not
ripe. Ripeness is a requirement somewhat related to the prohibition against advisory opinions. For a case
to be ripe for review by the courts, there must be a present threat of harm to the person bringing the case.
For example, if the member of Congress in the example above does introduce a law to Congress
prohibiting television stations from broadcasting religious services, a pastor of a church whose services
are currently being broadcast cannot bring suit against the government to challenge the proposed law. The
law has merely been proposed. It has not been approved by Congress or the President, so there is no
present threat to the pastor. If the law passes, and there is no reason to believe the law will not be
enforced, then the pastor could bring suit. But what if the law were passed 80 years ago and it had never
been enforced? Then we are back in the category of not being ripe for review—because it poses little
threat to the pastor.

Third, the case or controversy limitation also prohibits federal courts from hearing cases that have become
moot—cases where there was a controversy, but for one reason or another, it has been resolved. For
example, what if the ban on broadcasting religious services was enacted and a pastor whose services are
televised immediately brings suit to have the law declared unconstitutional. The Federal Communications
Commission—a federal executive branch agency that oversees broadcasting—then announces that it will
not enforce the ban. The pastor’s case will likely be found moot because there is no longer a live
controversy—the pastor is no longer threatened with any harm.

There is an exception, though, to the mootness doctrine. Court cases progress slowly in the United States.
They can take months or years to complete. What happens if there is a controversy over something of
relatively short duration? No case could ever make it through the federal court process before becoming
moot. Cases involving pregnancy or a particular election fall into this category. In such cases, the court
may hear the case even though the controversy is moot as to the particular plaintiff. If the court did not
hear the case, the next time someone had a similar problem, it too would become moot before the case
could wind its way through the court system. The case would never be resolved. There is a fancy
description for such cases: They are “capable of repetition yet evading review.” Such cases are exempt
from the mootness doctrine.

Standing: For a case to be heard in federal court, it is not enough that the case be of a type that can be
heard (i.e., within the court’s jurisdiction) and involve a case or controversy. A third requirement—called
standing—provides that the person bringing the case must have “a concrete stake in the outcome.” Such a
stake requires that the person have: (i) an injury in fact (ii) caused by the defendant (iii) that can be
remedied by a decision in the person’s favor. This is somewhat related to the case or controversy
requirement. If the person bringing the case does not have a stake in it, or the person’s injury cannot be
remedied even if the person wins, how hard will the person fight? Will the person really do his or her best
to win?

Injury in Fact: To have an injury in fact, a person must have a specific injury. An injury need not be
economic or involve criminal punishment in order to be an injury in fact. Thus, a person living near a
waterfront could be found to have standing to complain about an offshore wind-charger that will “ruin his
view.” Loss of a nice view is a sufficient injury. However, the injury cannot be theoretical. For example,
suppose a law made it a crime to be in a group advocating communism. You are not in such a group, but
you feel very strongly that the government should not make it a crime to be in any political group. Would
you have standing? No, because you have no injury. There is no threat to you, since you are not a member
of a group advocating communism. The threat to you is theoretical—no matter how much you oppose
government limitations on belonging to political groups, no harm will come to you from the law.
8 CONSTITUTIONAL LAW OVERVIEW

Causation: The injury must be traceable to the challenged conduct and not attributable to some third
party. For example, assume that the federal government has rules that would deny tax exempt status to
private schools that discriminate against students on the basis of race. A parent of a minority student feels
that the federal government is too lax in denying tax exempt status on this ground and that if the
government were not so lax, fewer discriminatory schools could afford to operate. If there were fewer
discriminatory schools, the white students who attend these schools would attend public schools, resulting
in public schools with less racial segregation. The causation requirement will fail here. The link between
the prejudicial policies of the private schools, tax exempt status, and segregation in public schools is too
weak to meet the causation requirement.

Redressability: Redressability is the final element mentioned above for standing: If the plaintiff wins, will
the victory change the condition about which the plaintiff is complaining? For example, the Supreme
Court held that mothers do not have standing to challenge the government’s refusal to enforce criminal
laws that would require fathers to pay child support, because enforcement of the criminal laws would not
necessarily result in fathers paying support (i.e., many fathers are not paying support because they do not
have the money to pay support, and sending such fathers to prison will do nothing to make them comply
with a support order). The redressability requirement is closely tied to causation—the government’s
refusal to enforce criminal laws against fathers probably is not the reason the fathers are not paying
support.

Standing of Organizations: One specific and common standing issue is the standing of an organization.
An organization (e.g., unincorporated association, corporation, union, etc.) has standing to challenge
government action that causes injury to the organization itself. An organization also has standing to
challenge government actions that cause an injury to its members if the organization can prove:

(i) An injury to its members that would give individual members a right to sue on their own behalf;

(ii) The injury to the members is related to the organization’s purpose; and

(iii) Neither the nature of the claim nor the relief requested requires participation of the
individual members in the lawsuit.

For example, a Ferrari automobile club whose purpose is to promote the “joys of driving Ferraris fast”
would have standing to challenge a law lowering a highway speed limit from 75 miles per hour to 65
miles per hour, because a purpose of the club is to encourage fast driving. But even if 100% of the club
members make over $100,000 per year in income, the club would not have standing to challenge on
behalf of their members a law that increases taxes on people making more than $100,000 per year,
because making more than $100,000 per year is not a purpose of the club.

Standing to Assert Rights of Third Parties: To have standing, the claimant must have suffered impairment
of his own constitutional rights. A plaintiff may, however, assert third party rights where he himself
has suffered injury and: (i) third parties would find it difficult to assert their own rights (for example,
the National Association for the Advancement of Colored People was permitted to assert the freedom of
association rights of its members in attacking a state law requiring disclosure of membership lists,
because its members could not file suit without disclosing their identities) or (ii) the injury suffered by
the plaintiff adversely affects his relationship with the third parties, resulting in an indirect violation
of their rights (for example, a beer vendor was granted standing to assert the constitutional rights of males
under age 21 in attacking a state law prohibiting sale of beer to them but not to females under age 21).

Taxpayer Standing: A taxpayer, of course, has standing to litigate her tax bill (e.g., whether she really
owes $12,434 in taxes). However, people generally do not have standing as taxpayers to challenge the
 CONSTITUTIONAL LAW OVERVIEW 9

way tax dollars are spent by the state or federal government, because their interest is too remote. Of
course, every rule has an exception, and the applicable exception here is a bit arbitrary: A federal taxpayer
has standing to challenge an exercise of the federal spending power if she can establish that the
challenged measure exceeds some specific limitation on the spending power. To date, the only limit that
the Supreme Court has found on the spending power is the Establishment Clause. Under this exception,
a federal taxpayer would have standing as a federal taxpayer to challenge a federal program that gives
money to religious schools (because that would be a spending measure that might violate the
Establishment Clause—which we will talk about later). However, if instead of giving religious schools
money, a federal program was giving religious schools surplus computers, the same taxpayer would not
have standing. While the program might still violate the Establishment Clause, it is a program involving
the federal property power, not the spending power.

Adequate and Independent State Grounds: In addition to refusing to hear a case in which the parties
do not have a concrete stake, the federal courts will not hear a case if a decision will not make a
difference in the result to the parties involved. This situation can arise when the Supreme Court is asked
to review the constitutionality of a state law or act. If there are adequate and independent state law
grounds to support the result of the state court proceedings, the Supreme Court will not hear the case.

State grounds are “adequate” if they are fully dispositive of the case, so that even if the federal grounds
are wrongly decided, it would not affect the outcome of the case. State laws will be independent if they
are not relying on an interpretation of federal laws. Many states have laws that are similar to the rules set
out in the Constitution. At times, state courts will rely on federal cases to interpret the meaning of the
state provision. In such cases, the state law is not independent from the federal law and so the Supreme
Court will hear the case to decide the constitutional issue. But the federal Constitution sets the minimum;
states are free to grant more protection than is granted in the federal Constitution. A state court decision
resting on state law—even one that contains the same language as the federal law—that is interpreted
without regard to the federal provision in question will not be reviewed by the Supreme Court because the
state law is independent.

The concept of adequate and independent state grounds is best understood with an example. Assume a
municipal clerk who is Hindu refuses to issue a business license to a local steak house because the clerk’s
religious beliefs require him to protect cattle. The clerk is fired for refusing to issue the license. The clerk
brings suit in state court seeking reinstatement to his job and money damages for lost wages, arguing that
the firing violates the Free Exercise Clause of the United States Constitution (a constitutional provision
protecting the free exercise of religion that will be discussed below) and an identical provision under the
state constitution. The trial court rules in favor of the clerk. The municipality appeals. The state supreme
court affirms the decision, specifically holding that the clerk’s termination violates both the federal Free
Exercise Clause and the state Free Exercise Clause. The municipality seeks an appeal to the U.S. Supreme
Court. Is the U.S. Supreme Court likely to hear the appeal? It depends on what the state supreme court
said in its opinion. Let’s look at two possibilities:

The Free Exercise Clause of our state constitution is identical to the Free Exercise Clause
of the United States Constitution and we interpret our Free Exercise Clause in the same
way the federal courts interpret the federal Free Exercise Clause. Under federal case law,
the clerk’s termination violates both the United States Constitution and the state
constitution.

This holding would be appealable. The decision is not independent of federal law. When the court says
the state and federal provisions are interpreted the same way and relies on federal case law, the decision is
dependent on federal law, and the Supreme Court will hear an appeal to determine whether the state court
was correct in stating that the clerk’s termination violates the U.S. Constitution. If the Supreme Court
10 CONSTITUTIONAL LAW OVERVIEW

finds that there was no constitutional violation, the result of the state case would change—the
municipality would not have to pay damages and reinstate the clerk (because if there was no violation of
the U.S. Constitution, there would be no violation of the state constitution either, since the state supreme
court said the two provisions are interpreted in the same way).

If instead, the state supreme court said:

We find that the clerk’s termination violates the Free Exercise Clause of the U.S.
Constitution. The termination also violates the Free Exercise Clause of our state
Constitution, which historically has been interpreted as providing even more protection
for religious practice than the United States Constitution.

Will the U.S. Supreme Court hear this case? No, because the decision rests on adequate and independent
state grounds. That is, even if the Supreme Court found that the clerk’s termination did not violate the
U.S. Constitution, the municipality would still have to reinstate the clerk and pay damages, because the
state supreme court made it clear that the municipality violated the state constitution by firing the clerk
(making the state Free Exercise Clause an adequate basis for the result), and interpretation of the state
Free Exercise Clause is not based on the federal Free Exercise Clause (making the state provision
independent of the federal provision).

One final note here. If it is unclear whether a state decision rests on federal or state grounds, the U.S.
Supreme Court will usually assume that there is no adequate and independent state ground and hear the
case.

The Eleventh Amendment: The Eleventh Amendment protects the states from being sued in federal
courts by a private person or a foreign government. However, it does not prohibit such persons from: (i)
bringing suits against local governments (such as cities or counties); (ii) actions seeking injunctions (i.e.,
orders to act or refrain from acting in a certain way) against state officers, such as a governor, secretary
of state, comptroller, etc.; and (iii) actions against state officers personally for money damages for
violating federal law.

FEDERALISM—FEDERAL VS. STATE POWER

As noted at the beginning of this summary, when the Constitution was adopted, a big concern was the
division of power between the federal government and the states. To resolve the problem, the Constitution
gives some powers exclusively to the federal government, leaves some powers exclusively to the states,
and the rest of governmental power is shared by both (the states and the federal government are said to
have concurrent power).

The Supremacy Clause

To ensure that federal law is followed by all of the states, the Constitution includes a provision—the
Supremacy Clause—that makes federal law the supreme law of the land. State law that conflicts with a
federal law that is within the powers granted to the federal government will be found to be invalid if
challenged in the courts. On the other hand, if federal law is found to be outside the powers granted to the
federal government, the state law will be upheld and the federal law will be stricken.

As a consequence of the above rules, the states have no power to directly regulate or tax the federal
government. For example, if a state regulates the efficiency of new office buildings within its borders and
the federal government builds a new office building within the state, the federal government is exempt
from the state’s efficiency requirements. However, because of the Supremacy Clause, the same is not true
 CONSTITUTIONAL LAW OVERVIEW 11

of the states. If the federal government establishes efficiency standards for new office buildings (which
would likely be within the federal government’s power, because office buildings are related to
commerce), and a state was building a new office building, the state would have to comply with the
federal law.

The Tenth Amendment

There is a wrinkle to the above paragraph that is sometimes litigated and sometimes tested: the Tenth
Amendment. The Tenth Amendment provides that the powers not granted to the federal government by
the Constitution are reserved to the states. This provision has been used to prevent the federal government
from singling out states for regulation. For example, it is doubtful that the federal government could
establish efficiency regulations that apply only to state office buildings. Additionally, the Supreme Court
has held that federal laws may not single out state employees to do certain tasks, such as performance of
background checks on people seeking a license to purchase a gun. Such a practice is known as
commandeering state officials—federal laws may not commandeer state officials.

Preemption

When state laws or other state actions are prohibited under the Supremacy Clause, they are said to be
preempted (although there is a presumption against preemption—that is, the courts will usually try to find
a way to uphold the state laws). The preemption issue can arise in a number of ways.

Express Preemption: The simplest situation arises when a federal law specifically provides that the
states cannot adopt a regulation in the area. For example, the federal government regulates employee
wages and hours (under the Commerce Clause). The federal government could adopt a law (it has not
done so) providing that the states may not regulate employee wages and hours at all. That would be a case
of express preemption.

Implied Preemption: Even if a federal law does not expressly provide that the states may not regulate
over the area, if a state law is in conflict with a federal law or prevents achievement of a federal goal, it is
said to be impliedly preempted. For example, currently, the federal minimum wage is less than $10 per
hour, but a number of states and municipalities have laws providing for a higher minimum wage, such as
$12 per hour. Such higher minimum wage laws have been upheld because they do not prevent
achievement of the federal goal of ensuring that workers make at least the federal minimum wage. But if
the federal minimum wage were changed to $20 per hour, a $12 state minimum wage law would be
invalid, because it now would conflict with achievement of the federal minimum.

Field Preemption: If the federal laws are comprehensive or a federal agency is created to oversee the
field, preemption will sometimes be found under the theory that Congress intended to occupy the entire
field. But, as noted above, there is a presumption against preemption. Thus, for example, even though
Congress created a federal agency to oversee employer-employee relations (the Department of Labor), the
Supreme Court has allowed states to adopt laws granting workers more protection, higher wages, etc.,
than are granted by federal laws.

The Dormant Commerce Clause

One area in which federal power and state power often conflict is the regulation of commerce. The federal
government has the power to regulate interstate commerce and the states have the power to regulate
commerce within their borders (intrastate commerce). Several lines of court cases have addressed issues
that have arisen in which these powers have clashed, and students spend a considerable amount of time
studying the cases. Underlying many of the cases is the premise that the federal commerce power is
12 CONSTITUTIONAL LAW OVERVIEW

pervasive and that Congress would not want any state law impeding interstate commerce without a
sufficiently good reason. This premise is often called the “Dormant Commerce Clause,” the “Negative
Commerce Clause,” or, perhaps the most descriptive but least used, the “negative implications of the
Commerce Clause.” We will use the term Dormant Commerce Clause here—DCC for short.

Under the DCC, what is a sufficient reason to justify a state law’s interference with interstate commerce
depends on the situation.

Intentional Discrimination Against Interstate Commerce: A state law that intentionally discriminates
against interstate commerce usually will be found to be invalid under the DCC unless it furthers an
important, noneconomic state interest and there are no reasonable alternatives available. Such laws
are usually protectionist measures. The early cases involved—of all things—state requirements that milk
be processed within the state rather than outside the state’s borders (purportedly to assure milk safety).
More recent cases have involved prohibitions against putting out-of-state garbage into landfills within a
state (or charging more for out-of-state garbage) and laws requiring that goods sold within a state be sold
at a certain price. All of these laws were found invalid under the above test. What was found valid? A law
prohibiting the importation of out-of-state baitfish that carried a certain disease. Protecting local baitfish
against the disease was found to be an important state interest and there was no reasonable alternative to
banning the baitfish.

There is an exception to the above rule prohibiting favoring local business over interstate commerce—the
market participant exception. If the state (or a subdivision of the state) acts as a market participant (that
is, the state is buying or selling goods or services), it may favor its own citizens. For example, if a city
owns its own landfill, it does not have to allow waste from outside the city or state to be placed in its
landfill. But even this doctrine has limits. Alaska owned timberlands and sold its timber only to state
timber processors (which was valid—since Alaska could favor its own citizens when selling as a market
participant). But the sales contract also put limitations on what could be done with the timber after the in-
state processors received it. Such “downstream” control was found to violate the DCC.

Incidental Burdens on Interstate Commerce: Sometimes states adopt laws because of a local concern
(e.g., for safety), but these laws also interfere with interstate commerce. Several such laws have dealt with
truck safety (e.g., the type of mud flaps that trucks may use, the maximum length of trucks, the number of
trailers that can be towed by a single tractor, etc.). In the case of nondiscriminatory action that
incidentally burdens interstate commerce, the Supreme Court uses a balancing test—the action is invalid
if the burden on interstate commerce outweighs the benefit to the state interest being promoted. If the
burden on commerce is high, and the potential benefit is low, the law will be found invalid under the
DCC. For example, if there is little proof that a curved truck mud flap is any safer than a straight truck
mud flap and most trucks in interstate commerce have straight mud flaps, a state law requiring curved
mud flaps will be found invalid under the DCC because of the enormous burden the law would have on
interstate trucking—the expense of changing the mud flaps on all trucks nationwide that might pass
through the state would be very high and the benefit to the state (increased safety) is questionable.

Taxes: The same general considerations applicable to state regulation of commerce apply to state taxation
of commerce. Congress can authorize or forbid state taxation affecting interstate commerce. If Congress
has not acted, and a state adopts a tax on something involved in interstate commerce, courts will look to
see whether the tax discriminates against interstate commerce. If it does, it usually will be found invalid.
If it finds the tax does not discriminate against interstate commerce, the courts will assess whether the
burden on interstate commerce outweighs the benefit to the state.

Courts impose three requirements to make nondiscriminatory taxes on things within interstate commerce
valid: (i) there must be a substantial nexus between the taxpayer and the state (that is, the taxpayer must
 CONSTITUTIONAL LAW OVERVIEW 13

do something in the state, such as have a transportation hub, warehouse, etc., in the state); (ii) the tax must
be fairly apportioned, meaning there has to be some relationship between the amount of the tax and the
goods being taxed (e.g., if the tax is on semi-tractor trailers, the tax must have a way to approximate the
time the trailers are in state vs. out of state); and (iii) there must be a fair relationship between the tax and
the services or benefits provided by the state (for example, the tax on trailers must be tied to the cost of
maintaining the roads on which such trailers operate).

INDIVIDUAL RIGHTS

STATE ACTION

As noted in the beginning of this summary, when the Constitution was written, there was concern over
the protection of individual rights. Indeed, the first eight amendments to the Constitution, which were
adopted as part of the original Constitution, all deal with individual rights, as do a few other constitutional
provisions. The first lesson to learn here is that the Constitution places limitations on the government
concerning how government treats people; it generally does not place limitations on how people treat
people. So when someone is suing in court to enforce constitutional rights guaranteed to the people, the
first thing to consider is whether any government action (also called state action) is involved. If a police
officer or other government official was involved, no discussion of state action is necessary. But if a
person is suing, claiming that a nongovernmental party has deprived the person of a constitutional right,
state action becomes a big issue. In that case, we must consider whether the nongovernmental actor’s
conduct is attributable to the government. That happens in only two situations: where the person is
performing an exclusive public function and where the state has facilitated the person’s action.

Exclusive Public Functions

There are two functions that the Supreme Court has found to be exclusively governmental—running an
election for governmental office and running a municipality. So if a nongovernmental entity—such as a
political party—gets involved in running an election for public office, the nongovernmental entity will be
bound by the constitutional protections of individuals’ rights. Similarly, if a private party were to create a
town with most of the attributes of a town (e.g., streets, sidewalks, housing, shops, parks, etc.), the private
party would be required to recognize the individuals’ rights set out in the Constitution.

Significant State Involvement

If the government becomes very involved with a private entity, the private entity’s actions will be
attributed to the government. A common issue here has been the entwinement of state and private actions.
For example, a “private” public high school sports association was funded by gate receipts and made up
of public officials who met during school hours and whose employees could join the public school
retirement plan. The “private” association was found to be so entwined with government that the
association’s actions were state action that had to comply with the Constitution.

PRIVILEGES AND/OR IMMUNITIES CLAUSES

Article IV of the Constitution includes the Privileges and Immunities Clause, and the Fourteenth
Amendment includes a Privileges or Immunities Clause. These two similar sounding clauses provide
different types of protection to individuals.
14 CONSTITUTIONAL LAW OVERVIEW

Article IV

The Privileges and Immunities Clause of Article IV prohibits states from discriminating against
noncitizens regarding important commercial rights, including the right to make a living, as well as civil
liberties. For example, it prohibits states from charging nonresidents significantly more for commercial
licenses than it charges residents. Any cost differences must be related to the differences in administration
costs. This clause often works in conjunction with the Dormant Commerce Clause.

Fourteenth Amendment

The Fourteenth Amendment Privileges or Immunities Clause prevents states from denying their own
citizens rights of national citizenship, such as voting. It has also been used to enforce a right to travel
among the states, prohibiting states from treating long-term residents differently from short-term residents
with regard to important state benefits. For example, a state cannot give residents who have lived in-state
more than a year better welfare benefits than the state gives to residents who have lived in the state less
than a year.

PROCEDURAL DUE PROCESS

The Fifth and Fourteenth Amendments to the Constitution prohibit government from taking a person’s
life, liberty, or property without due process of law. (The Fifth Amendment applies to the federal
government and the Fourteenth Amendment applies to the states.) What this means is very complicated.
At the very least, due process requires an opportunity to be heard by a neutral decisionmaker.

The first question to be addressed in a procedural due process question is whether a person is being
deprived of life, liberty, or property by the government. The life prong is pretty clear. But liberty has been
held to include not only physical liberty (cases of imprisonment), but also liberty to enjoy the freedoms
provided by the Constitution, such as the freedom of speech. And property has been held to include any
property right defined by law, so that government employees have a property right in continued
employment if a state law or practice so provides.

What constitutes a deprivation under the clauses also can be a bit complicated. The Supreme Court has
held that only intentional deprivations fall within the clauses; negligent deprivation, such as inadvertently
failing to give a prisoner medication, resulting in the prisoner’s death, is not a due process deprivation.

Assuming a case involves intentional deprivation of a life, liberty, or property interest, the next question
is what type of hearing is required—a full-blown, adversary-type hearing with witnesses, cross-
examination, and a judge, or something far less formal? And when does the hearing have to occur? Before
the deprivation? After? The answer is: It depends. The courts will weigh: (i) the importance of the
individual interest involved; (ii) the value of specific procedural safeguards to that interest; and (iii) the
governmental interest in fiscal and administrative efficiency. What does all that mean? It’s hard to say.
The court’s decisions seem to be somewhat arbitrary. The good news, though, for exam purposes, is that
you generally will not have to come up with the “correct” court result, but rather merely recognize the
elements of the test that were just set out.

THE TAKING CLAUSE

The Fifth Amendment prohibits government from taking private property unless: (i) the taking is for a
public purpose and (ii) just compensation is paid. This rule applies to the taking of personal property as
well as real property (e.g., the taking of both things and land), but most cases involve the taking of land.
 CONSTITUTIONAL LAW OVERVIEW 15

Public Purpose

The public purpose requirement can be satisfied by almost anything that could conceivably benefit the
public. For example, it is conceivable that a neighborhood might be considered “better” if apartments
have cable TV. Similarly, requiring a private homeowner to sell her property to a private developer so
that a neighborhood can be torn down to build a new business center also can be considered a public
purpose.

Taking by Appropriation

Any physical appropriation constitutes a taking. Thus, for example, requiring a homeowner to sell land to
the government so that a road can be built is a taking. Forcing building owners to allow cable TV
companies to install cable takes the space through which the cable runs and also amounts to a taking. It
does not matter that the space taken is small and inside of walls. There are two important exceptions to
the physical appropriation rule: Emergencies and nuisances (e.g., the state can destroy diseased trees to
prevent spread of the disease).

Land Use Regulations

Land use regulations, such as zoning ordinances, can constitute a taking, but usually not. A land use
regulation that denies an owner all economic value of land amounts to a taking. For example, a land use
regulation that prohibits an owner from building on a wooded lot or cutting any timber from the lot would
probably be considered a taking, but such a regulation is rare. A regulation that merely decreases the
value of property will not amount to a taking if the regulation leaves an economically viable use for the
property. The courts consider: (i) the social goals sought to be promoted by the government; (ii) the
diminution in value to the owner; and (iii) whether the regulation substantially interferes with distinct,
investment-backed expectations of the owner. Usually, if the property still has a reasonable, economic
use, no compensation will be due. For example, if land is zoned for farming and a developer buys it, hires
consultants to survey the land and fortify it to support buildings, and then seeks approval to have the
zoning changed to allow a resort to be built, and the zoning board refuses to change the zoning, it is
doubtful that a taking would be found. That the land might have a higher value and the owner spent
money in hopes of developing the land as a resort usually is not enough to persuade the courts that a
taking has occurred.

Dedication

Governments may condition building or development permits on a landowner’s conveying title to

some property, or allowing public access (so-called “exactions”). However, such dedications or exactions
will amount to a taking, therefore requiring compensation, unless the forced conveyance or access is to
redress a problem that will be caused by the building or development sought by the landowner (e.g., a
developer building 100 houses probably could be required to donate land for a small park, but a builder of
a single house probably could not, because the need for a park is not caused by the addition of one house
to a neighborhood).

Remedy

The compensation due to an owner for a taking is the fair market value of what was taken from the owner
in the condition it was taken. So if a government takes 10 acres of a farmer’s land to build a new road, the
government owes the farmer for the value of the 10 acres of farmland. The fact that the 10 acres would
have been worth more or less had it been zoned differently is not taken into account. Neither is there an
offset if the government project will happen to increase the value of the rest of the farmer’s land.
16 CONSTITUTIONAL LAW OVERVIEW

In land use regulation cases, the owner usually is suing to have the regulation removed and for damages
for the time the land was subject to the regulation. Such an action is called a suit for inverse
condemnation (condemnation is the proceeding that the government brings to take land; inverse
condemnation is a suit a landowner brings, claiming that the government effectively has taken his land).

SUBSTANTIVE DUE PROCESS

In addition to the procedural protections that we discussed above, the Due Process Clauses also provide a
substantive guarantee, protecting against unfair or unreasonable laws or other government action. The test
used to determine reasonableness depends on the nature of the interest involved. If the interest involved is
a fundamental right (i.e., the right to travel, privacy, voting, and all First Amendment rights), the
law/action must pass strict scrutiny: it will be upheld only if (i) the government can show that it is (ii)
necessary to achieve (iii) a compelling interest. In all other cases, a rational basis test is applied: the
law/action will be upheld unless the (i) challenger can show that it is (ii) not rationally related to (iii) a
legitimate government interest. Even under the rational basis test, due process also includes the
requirement of fair notice of possible penalties and of what conduct is prohibited. If a law does not
clearly say what penalty can be imposed or what conduct is prohibited, the law is arbitrary and is
unconstitutional for that reason.

Abortion Cases

One special case should be mentioned here that is often discussed in the United States—abortion laws. A
woman’s right to autonomy over her own body is within the right to privacy—a fundamental right
protected by the Constitution. But the Supreme Court has recognized that government also has an interest
in protecting an unborn fetus. Because of these competing interests, the Supreme Court does not apply the
strict scrutiny test to laws that impact abortion. Instead, two special tests are used.

Pre-viability standard—no undue burdens: Before a fetus is viable outside the womb, a state may not
place “undue burdens” on a woman’s ability to obtain an abortion. What is an undue burden is not well
defined. The biggest issue, though, involves parental consent for minors. It is not an undue burden to
require a minor’s parent(s) to consent before she may obtain an abortion as long as there is a judicial
bypass option (a way for the minor to apply to a court for an abortion—instead of parental consent).

Post-viability standard: After a fetus becomes viable outside the womb, the government may prohibit an
abortion unless the mother’s health is threatened.

EQUAL PROTECTION

As mentioned earlier, the Fourteenth Amendment provides that a state may not deny any person within its
jurisdiction equal protection of the laws. While the main intent of the clause when it was ratified was to
help protect former slaves who were freed by the Civil War, over time the scope of the clause has been
broadened. But before delving into the nitty gritty of the clause, let us first examine broadly the types of
government action impacted.

At the most elemental level, the Equal Protection Clause prohibits state governments and their
subsidiaries, such as county governments and city governments, from taking action that treats some
people differently than others in similar situations. A blatant example would be a law prohibiting African
Americans from holding public office. But application of the Equal Protection Clause is not limited to
instances where states have passed laws. The clause may also be applied when the government takes
action that discriminates against a certain group of people, for example, the refusal of government
 CONSTITUTIONAL LAW OVERVIEW 17

officials to grant people of Chinese descent licenses to run laundries. Thus, if in an exam question or
while practicing law you want to determine whether you might have an equal protection claim, ask
yourself: Is the government treating some people differently than others in similar situations? Put another
way: Is government action categorizing people in some way? If the answer to either of these inquiries is
“yes,” then you might have a viable equal protection claim.

Of course, as with many other constitutional provisions, the Equal Protection Clause cannot be applied in
absolutes—that is, your case is not over just because you can show that the government has classified
people and is treating them differently. Effectively, the clause has been interpreted by the Supreme Court
to prohibit only unreasonable discrimination. How do we determine whether discrimination is
unreasonable? The Court has developed three tests—three sets of criteria that the Court uses to analyze
the facts of a particular case—to determine the constitutionality of the government action. The test to be
applied under a particular set of facts depends on the basis of the classification (i.e., what factor is the
government using to divide people into groups?) and the nature of the right being infringed by the
government action (i.e., is the right one that the Supreme Court has found to be fundamental under the
Constitution—or some other right that has not been so labeled?). The three tests are: the strict scrutiny
test, the intermediate scrutiny test, and the rational basis test. Thus, your second job concerning an equal
protection claim is to look at the basis of the discrimination and the nature of the right involved to
determine which test applies. We have already discussed two of the tests with regard to Due Process
(strict scrutiny and rational basis), so some of this will be a recap.

(i) Strict Scrutiny: If the discriminatory treatment is based on a classification that is considered by
the Supreme Court to be a suspicious basis for classifying people (a “suspect classification”) or
the government action impacts a fundamental right, the court reviews the law or government
action using strict scrutiny. A law or government action will be found unconstitutional (i.e., it will
be found to violate the Equal Protection Clause) unless: (i) the government can prove (ii) the law
or government action is necessary to achieve (iii) a compelling government interest. We will
delve into the nitty gritty (which classifications are suspect, which rights are fundamental, when
is a law or action necessary to the achievement of a governmental goal, and what interests are
compelling interests) later.

(ii) Intermediate Scrutiny: If the disparate treatment is based on a quasi-suspect classification (there
are only two—legitimacy and sex/gender), the law or government action will be found to violate
the Equal Protection Clause unless: (i) the government can prove (ii) the law or government
action is substantially related (or narrowly tailored) to achieving (iii) an important government
interest. Again, we will cover the nitty gritty (what is required for a substantial relationship, what
is an important government interest) later.

(iii) Rational Basis Test: If the disparate treatment is based on any other criteria, it will be upheld
unless (i) the challenger can prove that (ii) the law or government action is not rationally related
to (iii) any conceivable legitimate government interest. Why the shift in burden? Remember that
we are trying to prevent unreasonable unequal treatment. We start with a presumption that it is
not reasonable to treat people differently on the basis of their race, national origin, legitimacy
status, or sex—so if government does treat people differently on those bases, we make the
government make a strong showing why the presumption should not apply. In other cases,
though, we start with the presumption that government action is valid and we make the challenger
prove that the government action is not valid. We will talk more about the specifics of this test
later.
18 CONSTITUTIONAL LAW OVERVIEW

EQUAL PROTECTION TESTS

strict scrutiny intermediate scrutiny rational basis
Who has burden? the government the government the challenger
What is burden? necessary to achieve a substantially related (or not rationally related to
compelling interest narrowly tailored) to an any legitimate
important government government interest
interest

FUNDAMENTAL RIGHTS

As discussed above, it is important to know what rights are considered fundamental, because if a client
comes in with a possible equal protection claim (or such a claim is raised in a bar exam question)
involving a fundamental right, you will know that strict scrutiny applies. And government action is rarely
upheld when strict scrutiny applies. Fundamental rights under the Equal Protection Clause include the
right to travel among the states and the right of privacy (including the right to marry, to use contraception,
to raise children, and to keep extended families together). Voting rights are treated as fundamental, but as
with abortion, special tests apply sometimes because of competing interests (e.g., in keeping elections
fair). Finally, all First Amendment rights are considered fundamental, but the First Amendment has its
own tests to be applied under particular situations. Note: While the right to sexual relations seems to be
within the right of privacy, the Supreme Court has been unclear as to what test applies to laws regulating
sexual relations. However, it has clearly held that the government has no legitimate interest in regulating
private, noncommercial sexual relations between consenting adults. Given this, government regulation of
private, noncommercial sexual relations cannot pass even the lenient rational basis test.

FIRST AMENDMENT RIGHTS

The First Amendment is huge: it limits the government’s power to interfere with the freedoms of speech,
association, and religion. These rights are so large that entire law school classes may be devoted to the
study of each of these rights. First Amendment rights are heavily tested on bar exams, and it is not
uncommon in practice to see a First Amendment case. For example, a student may be expelled from
school for saying something inappropriate, a billboard company may be prohibited from displaying a
certain ad near a church, a person who supports an unpopular cause might be denied a parade permit, a
school might require a student to recite the Pledge of Allegiance even though it is against his religious
principles, or a school board might decide to give microscopes to a local religious school. If a client walks
through your door and describes any of these problems (and many more), you must recognize that you are
in the realm of the First Amendment.

After recognizing that a First Amendment issue is before you, your next order of business is to figure out
which First Amendment clause is at issue (e.g., Free Speech Clause, Establishment Clause, Free Exercise
Clause), because different tests apply to the different clauses. Indeed, different tests apply to different
situations under the Free Speech Clause.

The Freedom of Speech

You might think you will always easily recognize a free speech issue—someone wants to say something
but a law prohibits it. But that is only scratching the surface. Speech can encompass not only talking,
typing, Skyping, and holding up protest signs, but also refusing to speak (e.g., the student who does not
want to recite the Pledge of Allegiance), refusing to provide financial support for causes (e.g., a refusal to
 CONSTITUTIONAL LAW OVERVIEW 19

pay union dues in a union shop), exotic dancing, and wearing a black armband to protest a war. Anything
related to conveying a message or refusing to convey a message can come within the ambit of speech.

If a law or government action does interfere with the ability to convey or to refuse to convey a message,
the first thing you should consider is whether the law or action is based on the content of the speech—that
is, whether the law or government action prohibits the conveyance of a particular message (e.g.,
henceforth, it shall be unlawful to claim that the world is flat). A law prohibiting speech based on content
generally must pass the same strict scrutiny test as we outlined above under the Equal Protection Clause
(and, the government almost never can carry its burden in such cases). Why? Because we favor free
speech. We want to encourage public debate and want to create a free marketplace of ideas. Therefore,
constitutional policy is against restricting the dissemination of ideas. However, there are some categories
of speech that are unprotected. These categories include speech that the Supreme Court has decided—
based on the long history of civilization—add nothing of value to our society. Indeed, speech within these
categories harms society, and so it can be regulated by content. These categories include fighting words,
obscenity, words creating a clear and present danger of imminent lawless action, and defamatory speech.
(We’ll talk about the specifics of each of these later.) It should be noted that on several occasions, the
Supreme Court has been asked to add to these categories and has refused. Again, as a society, we favor a
broad right to speak and the Supreme Court is very unlikely ever to add a new category of speech that is
unprotected.

Time, Place, and Manner Restrictions: It should not be surprising that while the First Amendment
allows us to say whatever we want (as long as our communications do not fall into one of the unprotected
speech categories), we do not have a right to communicate anywhere we want, any time we want, or in
any manner we want. Have you ever been annoyed by a truck with a loudspeaker blaring political rhetoric
(if not, you are lucky) or an ice cream truck playing incessantly happy music to attract small children?
How would you like to hear either truck at 2:00 a.m., while you are fast asleep, and at twice the normal
volume? You likely have never been awakened by such a truck because the Supreme Court allows the
government to place reasonable restrictions on the conduct (as opposed to the content) of speech.

If the main focus of a law or other government action is merely to regulate the time, place, or manner of
speech on public property (e.g., a city street), there are two sets of rules, each of which applies to two
separate types of government property (forums). To properly advise a client of his rights or to answer a
bar exam question requires you to understand the differences between each of the forums and to apply the
proper rule. For example, a client might tell you he wishes either to hold a protest march on the sidewalk
in front of city hall or to stage a sit-in in the mayor’s office. Both locations are government property, but
different rules are used to determine the validity of regulations of speech in the two locations. The
sidewalk is considered a public forum—a place traditionally held open for public speech activities, while
the mayor’s office likely would be considered a nonpublic forum—a place where the business of the city
is carried out. The law follows reason here. Since we encourage free debate and open dialog in the United
States, the government has less discretion to limit speech in public forums (such as streets, sidewalks, and
parks) where speech activities historically have taken place (the regulation must be content neutral,
narrowly tailored to achieve an important government interest, and leave open sufficient alternative
channels of communication). However, we also want government to run efficiently and so allow greater
regulation of speech in nonpublic forums, such as schools, office buildings, and military bases. In
nonpublic forums, the regulation need only be reasonably related to the forum’s use and viewpoint
neutral. Thus, the mayor could prohibit access to his office for sit-ins, but cannot allow a sit-in by those
on one side of an issue but prohibit a sit-in by those on the other side of the issue. You will learn more
about what each of the elements of the tests mean and about the other two types of forums later in the
course.
20 CONSTITUTIONAL LAW OVERVIEW

Government Speech: It should be briefly noted here that the First Amendment limits government
regulation of private speech; it does not limit government speech. The government generally is free to say
what it wants and to fund private speech that furthers its views while refusing to fund private speech of
those whose views it does not support. Recently, this issue has arisen in the courts and on exams when a
government refuses to place a monument in a public park or building that was offered by a private party.
The government is free to accept and place the monuments it wants and to reject those it does not want.
The First Amendment is not applicable to the government’s decision.

Public Employees: Another interesting area concerning freedom of speech involves the speech rights of
government employees. The competing interests of the employees’ speech rights and the government’s
interest in operating efficiently require that different standards be applied depending on the situation.

Official Duties: If a government employee’s speech is made pursuant to the employee’s official duties,
the employee may be punished for insubordinate speech, inappropriate speech, not following policies, etc.
For example, a county prosecutor thinks there were irregularities in a search warrant underlying a case he
is working on and he raises the issue with his supervisor. His supervisor reviews the case and tells the
prosecutor things look fine and he should not raise the issue in court. The prosecutor raises the issue in
court. The prosecutor can be fired for improper job performance.

Other Speech: If speech is not made pursuant to an employee’s official duties, two tests apply. If a
government employee’s speech does not involve a matter of public concern, the courts give the
government employer a wide degree of deference and allow the employer to punish the employee if the
speech was disruptive of the work environment. However, if a matter of public concern is involved,
courts must balance the employee’s rights as a citizen to comment on a matter of public concern against
the government’s interest as an employer in efficient performance of public service. What constitutes a
matter of public concern is hard to describe. Things like whether a school board should seek a tax
increase and policies of the President (when commented on by a state police officer) have been found to
be matters of public concern, while a school board’s policy regarding the transfer of teachers was held not
to be a matter of public concern. For exam purposes, it will likely be enough to know the test that applies.

Other Speech Issues: Other speech issues can arise in the practice of law or on the bar exam (e.g.,
regulation of truthful commercial speech, prior restraints, and freedom of the press issues). Each of these
will be discussed in some detail later, but understand that your main job for each is to first see the issue
and then apply the appropriate test.

The Freedom of Religion

The First Amendment includes two clauses protecting religion: the Free Exercise Clause and the
Establishment Clause. At a very basic level, the Free Exercise Clause is said to protect religious practices
while the Establishment Clause prevents the government from endorsing religion. While each of these
rights is considered a fundamental right, the Court does not use strict scrutiny in either case, except in
very narrow circumstances.

Free Exercise Clause: It is said under the Free Exercise Clause that the government has no power to
outlaw any particular religious belief. It’s a simple rule to remember and very straightforward, but frankly
you are never likely to see this issue come up in practice or on the bar exam. What you are more likely to
see are regulations that interfere with religious practices or conduct. For example, you could have a client
in the state national guard who wishes to wear religious headgear but has been prohibited because
regulations require guard members to wear only the official uniform. Or you might have a client who does
not want to put a bright orange safety triangle on his horse carriage pursuant to a law requiring slow
moving vehicles on roads to display such triangles because it violates a religious tenet. Or perhaps you’ll
 CONSTITUTIONAL LAW OVERVIEW 21

have a client tell you that he’d like to sacrifice chickens because of his religious beliefs, but is prohibited
from doing so by a city ordinance that prohibits the sacrifice of chickens. As you can tell, it’s pretty easy
to spot a free exercise case—your client will literally tell you that that is the issue.

Once you have recognized that a religious practice is being burdened by a law, one of two tests will
apply, depending on the breadth of the regulation in question. This is the tricky part. You need to figure
out whether the regulation is so broad regarding the action or conduct being regulated that it will be
considered a generally applicable conduct regulation or whether it targets conduct or action that is mostly
a religious practice. If it is a generally applicable law, it is valid, period, and no exemption is required. On
the other hand, if the law is intended to target a religious practice, it is invalid unless it meets strict
scrutiny (and it likely won’t).

So let’s look at our examples: A state national guard that requires all members to dress only in an official
uniform, a state that requires horse-drawn carriages to display a bright orange safety triangle, and a city
that prohibits the sacrifice of chickens. The first one is easy: The rule appears to be a generally applicable
conduct regulation and so is valid. The second is a little closer—it is a generally applicable rule and
probably is valid, but perhaps we can find facts showing that it was motivated by a desire to
inconvenience those in a religious sect that does not drive automobiles. The third one goes back to being
easy—it violates the Free Exercise Clause. It does not broadly prohibit killing chickens, but rather
prohibits the sacrifice of chickens. Sacrifice is specifically a religious practice. Since the law targets a
religious practice, it likely will be held invalid (unless the government can show why it has a compelling
interest in forbidding the sacrifice—as opposed to the regular slaughter—of chickens).

Establishment Clause: The Establishment Clause is implicated when the government officially
recognizes a religion or when the government helps religious organizations. For example, if a public
school required bible reading, or a city displays a nativity scene on city property, or a school board gives
a religious school microscopes to use in class, the Establishment Clause is implicated.

The 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:

(i) Has a secular purpose;

(ii) Has a primary effect that neither advances nor inhibits religion; and

(iii) Does not produce excessive government entanglement with religion.

This is known as the Lemon test. While the test seems pretty straightforward, results often are
unpredictable, often depending on the age of the people involved (minors vs. adults), the intent of the
actor, and the perceived historical roots of the practice. For example, prayers are allowed at the beginning
of legislative sessions, city meetings, etc. On the other hand, a public grade school or high school cannot
allow a public invocation at a football game or at a graduation because the students are thought to be
more susceptible to the perceived government endorsement of religion (the “tender years” doctrine).
Similarly, a city can have a holiday display at Christmastime if it contains both secular and religious
symbols (e.g., a nativity scene plus a Christmas tree). But a city cannot display only a nativity scene or
only a menorah. On the third hand, a state judge was ordered to remove a broad display, including the Ten
Commandments, the Bill of Rights, and references to Jesus as the Prince of Ethics where prior conduct
made it clear that the judge’s intent was not secular, but rather to promote his religious values.

So how do you approach a question in practice or on the bar exam? Start with the general test outlined
above and do your homework to learn the fine wrinkles.
22 CONSTITUTIONAL LAW OVERVIEW

CONCLUSION

As was mentioned at the outset, this summary was intended to give you an overview of the main
constitutional issues that are commonly discussed, litigated, and tested today. Many “hot” issues were
discussed, and the summary will provide you with a strong background for tackling any constitutional
issue. But remember, there are more detailed issues to master in your studies. This is only a beginning.