APPROACH TO CONSTITUTIONAL LAW 1.

APPROACH TO EXAMS
CONSTITUTIONAL LAW
IN A NUTSHELL: The study of Constitutional Law is the study of the history of how the Supreme
Court has interpreted the Constitution. For purposes of law school, the Constitution can be divided into
a few main parts: the main body, the Bill of Rights, and the Civil Rights Amendments. Among other
things, the main body of the Constitution establishes a federal government with limited power (i.e.,
only the power provided for in the Constitution) and divides that power among three branches—the
legislature (Article I), the executive (Article II), and the judiciary (Article III). Basically, the legis-
lature makes laws, the executive enforces laws, and the judiciary applies laws and determines their
constitutionality. This division of power provides the basis for the separation of powers doctrine; i.e.,
one branch may not usurp the power of another branch—at least not without the other branch’s permis-
sion (i.e., a delegation of power). Fearing a strong central government, the drafters of the Constitution
included the Bill of Rights, a statement of the rights of individuals against the federal government.
About 80 years later, after the Civil War, our country adopted the Civil Rights Amendments (i.e., the
13th, 14th, and 15th Amendments), which primarily guarantee individual rights against states.
I. IS THERE A CASE OR CONTROVERSY?
Federal courts are courts of limited jurisdiction/doctrine of strict necessity
A. No Advisory Opinions
1. Ripeness—harm must actually be threatened
2. Mootness—must be real, live controversy at all stages; if issue has been resolved, court will
not hear
a. Exception—situation capable of repetition yet evading review
3. Standing—plaintiff must have a concrete stake in the outcome at all stages of litigation
a. Injury in fact—specific injury, not theoretical
1) Taxpayers—too remote/abstract
a) Exception: Taxing and spending measure violating Establishment Clause
b. Remediable by court decision
4. Adequate and independent state grounds—court will not hear appeal from state court if
adequate and independent nonfederal grounds support state decision
B. Abstention
If action already going on in state court on unsettled question of state law, federal court will
abstain so state can settle issue
C. Political Question
Court will not decide issue that is not suitable for judicial branch
D. 11th Amendment and Sovereign Immunity
Generally cannot sue state in federal court for damages (without state’s permission)
1. Exceptions: Actions against state officers and removal of immunity under 14th Amendment

II. IS LAW WITHIN CONGRESS’S POWER?

A. Necessary and Proper Clause

Congress has the power to make laws necessary and proper for executing any power granted to
any branch of federal government
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B. Taxing Power
If revenue raising, generally valid

C. Spending Power
Spending may be for any public purpose; Congress may regulate beyond enumerated powers by
attaching strings to a grant as long as the strings are: (i) clearly stated, (ii) related to the purpose
of the grant, and (iii) not unduly coercive

D. Commerce Power
Congress may regulate:
1. Channels of interstate commerce—roads, rails, waterways, phones, etc.
2. Instrumentalities of interstate commerce—trucks, trains, planes, etc.
3. Activities having a substantial economic effect on interstate commerce
a. Generally must be economic or commercial activity

E. Property Power
Includes power of eminent domain, to dispose of federal property, and to make rules/laws
regulating federal lands and Indian reservations

F. Miscellaneous Other Powers

War (including power to declare war and fund war), investigatory, bankruptcy, postal, citizenship,
admiralty, coin money, fix weights and measures, and grant patents and copyrights

G. Delegation
1. Congress may delegate its power to other branches
a. Intelligible standard “requirement” for delegation (almost anything suffices)

H. Speech or Debate Clause

Immunity for speech made within Congress

I. Legislative Veto
Congress cannot make a law reserving to Congress the right to overturn discretionary executive
action without passing a new law and presenting it to the President for approval

III. IS PRESIDENT ACTING WITHIN EXECUTIVE POWER?

A. Domestic Powers of President

1. Appointment and removal of officers and Supreme Court Justices with advice and consent of
Senate
2. Pardon—federal crimes only
3. Veto power—10 days to veto; if President does not do so and:
a. Congress in session = approval
b. Congress out = pocket veto
c. No line item veto
4. Power as chief executive/executive orders—Youngstown guidance from Justice Jackson:
a. If express or implied authority from Congress—action likely valid
b. If Congress silent—action valid if it does not impinge on powers of another branch
c. If against Congress’s will—action likely invalid
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B. Power Over External Affairs

1. President may commit troops but power to “declare war” belongs to Congress
2. Treaty power—signs treaties with approval of two-thirds of Senate
a. Treaty is on par with other federal laws (“supreme law of land”)
b. Treaties cannot conflict with Constitution
3. Executive agreements—enforceable if not in conflict with federal law, treaties, or
Constitution

C. Executive Privilege/Immunity
1. Privilege extends to documents and conversations but must yield if court decides information
needed in criminal case
2. Immunity
a. President immune from suits for civil damages for actions taken as President
b. Immunity extends to aides exercising discretionary authority of President

D. Impeachment
President, vice president, and all U.S. civil officers may be impeached for treason, bribery, high
crimes, and misdemeanors by majority vote of the House; are tried by Senate; and conviction
requires two-thirds vote of Senate

IV. FEDERAL VS. STATE POWER

A. Supremacy Clause
1. Most governmental power shared between state and federal government
2. Federal law supreme, and conflicting state law is invalid
a. Actual conflict—state law invalid
b. Interference with federal objectives—state law invalid
c. Preemption—no room for state legislation; Congress controls entire field
1) Express preemption—narrowly construed
2) Field (implied) preemption—if federal law comprehensive or a federal agency
oversees area, preemption may be found
3) Presumption that historic state police powers not intended to be preempted unless
that is the clear and manifest purpose of Congress
3. Dormant Commerce Clause (negative implications of Commerce Clause)
a. Congress may delegate commerce power to states
b. Absent delegation, states may not intentionally discriminate against interstate commerce
1) Exception: Necessary to achieve an important state interest (i.e., no reasonable
alternatives available)
2) Exception: State acting as a market participant
a) Might still violate the Privileges & Immunities Clause
b) No downstream restrictions—state cannot control what happens to goods
after state sells them
3) Traditional government function
c. Nondiscriminatory state law—may not be unduly burdensome (burden on interstate
commerce cannot outweigh promotion of the legitimate state interest sought to be
served)
1) Nondiscriminatory state tax affecting interstate commerce—must be:
a) Substantial nexus between object of tax and taxing state
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b) Fair apportionment according to rational formula

c) Fair relationship to services or benefits provided by state
4. 21st Amendment—liquor regulation—states can regulate sale of liquor, but cannot favor
local businesses

B. Suits
1. The United States may sue states without their consent
2. States cannot sue the United States without its consent
3. State can sue state in federal court; Supreme Court has exclusive jurisdiction

C. Federal Taxation/Regulation of States—10th Amendment Concerns

1. Tax/regulation applying to both private and state entities—valid
2. Tax/regulation of states as states—generally invalid
a. Commandeering state officials—cannot require states to regulate their own citizens
b. Exceptions: Strings on federal grants of money and civil rights

D. State Taxation/Regulation of Federal Government

1. State cannot directly tax federal government
2. State cannot directly regulate federal government
3. State may tax federal employee and contractor salaries (indirect tax)

V. INDIVIDUAL RIGHTS

A. State Action Limitation

1. The Constitution limits actions of government, so there must be state (i.e., government)
action in order to find action unconstitutional
2. Private action can sometimes be attributed to government:
a. Traditional and exclusive government function (e.g., running a town or election)
b. Significant state involvement
1) Official encouragement or use of judicial machinery
2) Entwinement of state and private actors
3) But mere regulation, provision of public services, or licensing not enough

B. Article IV Privileges and Immunities

1. Prohibits states from discriminating against citizens of other states with respect to “funda-
mental” rights (Note: Corporations and aliens are not citizens)
2. Mainly used to prevent substantially unequal treatment regarding commercial activities
3. Substantial justification exception if nonresidents are part of problem and there are no less
restrictive means to solve problem

C. 14th Amendment Privileges or Immunities Clause

1. Prohibits states from denying their own citizens rights of national citizenship (corporations
are not citizens)

D. Prohibitions Against Retroactive Legislation

1. Contracts Clause—applies only to states
a. Prevents only substantial impairment of a party’s rights under an existing contract
b. Exception—law valid if:
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1) Serves an important interest; and

2) Is narrowly tailored to promote that interest
c. Public contracts subject to stricter scrutiny
1) State cannot be obligated to refrain from exercising its police power
2) Law should not broadly repudiate government contractual obligations
2. Ex post facto laws—prohibited
a. Makes criminal an act that was innocent when done
b. Prescribes greater punishment than what was prescribed when act was committed
c. Reduces evidence required to convict
d. Specifically applies only to legislation, but due process prohibits similar changes by the
courts
3. Bills of attainder—prohibits laws inflicting punishment without a trial on people by name or
past conduct

E. Procedural Due Process

1. Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states)
2. Requires fair process/procedure when government acts intentionally to deprive a person
individually of life, liberty, or property
a. Both actual bias and serious risk of actual bias unconstitutional
b. Liberty includes losses of significant freedom of action
c. Property includes legitimate claims/entitlements to government benefits
1) Public employment is a property right if claim to entitlement through contract,
policy, law, etc.
3. Balancing test for determining fair process in terms of timing (pre- vs. post-deprivation) and
scope of hearing. The Court weighs:
a. Importance of individual right
b. Value of specific procedural safeguard involved
c. Governmental interest in fiscal and administrative efficiency

F. Takings
1. If government takes land for public purpose, it must provide just compensation
2. Public purposes liberally construed
3. Actual or physical appropriation almost always a taking, even if property taken is small
a. Exception: Emergencies
4. Use restrictions (action for inverse condemnation)
a. Denial of all economic value—taking
b. Decrease in economic value—generally not a taking if economically viable use remains
c. Dedications—cannot condition building permits on forced dedication unless:
1) Government can show legitimate interest, and
2) Adverse impact of development roughly proportional to owner’s loss
5. Just compensation—reasonable (fair market) value of property taken at time of taking

G. Substantive Due Process

1. Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states)
2. Prohibition against unreasonable laws
3. Reasonableness test depends on interest involved
a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)—strict
scrutiny
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1) Government must prove action is necessary to achieve a compelling government

interest
b. All other interests—rational basis
1) Challenger must prove action not rationally related to any legitimate government
interest
4. Requires laws to give fair notice of conduct that is forbidden or required

H. Equal Protection
1. 14th Amendment prohibition against unreasonable discrimination by states
2. Test for reasonableness depends on criteria used to classify (suspect or quasi-suspect class)
and nature of right (fundamental right)
a. Discriminatory intent by government:
1) Law discriminatory on its face
2) Discriminatory in application
3) Discriminatory motive
4) If facially neutral, no discriminatory application, and no discriminatory motive,
then rational basis test applies
b. Suspect classification (race and national origin) or fundamental right—strict scrutiny
1) Government must prove action is necessary to achieve a compelling government
interest
2) Affirmative action (favoring minorities) invalid unless:
a) Seeking to remedy past discrimination within jurisdiction
3) Race can be a factor considered in admission of students in institutions of higher
education to achieve a diverse student body
a) Cannot be a special/weighty factor
4) Alienage can be considered for state employment positions involving the self-
government process—including police officers and primary and secondary school-
teachers
c. Quasi-suspect classification (sex and legitimacy)—intermediate scrutiny
1) Government must show discrimination is substantially related to an important
government interest
2) Sex discrimination—exceedingly persuasive justification required
a) Interest must be genuine and not hypothesized
d. All other classifications—rational basis standard

I. Abortion
1. Competing interests—mother’s right to privacy vs. fetus’s interest in becoming a child
2. Pre-viability—no undue burdens on right to obtain an abortion
3. Post-viability—may prohibit abortion except when woman’s health threatened
4. No right to government funding of abortion services

J. Other Privacy Rights—marriage, use of contraceptives, obscene reading material in the home
(except child pornography), living with extended family, to educate and raise children
1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language
in cases not consistent
2. Intimate private, noncommercial sexual contact between fully consenting adults—not a right,
but court found no legitimate government interest in regulating
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K. Voting Rights
1. Short residency requirement (e.g., 30 days)—valid
2. One person, one vote
a. Congressional elections—almost exact mathematical equality required (a few
percentage points may be fatal)
b. State and local elections—variance not unjustifiably large (16% variance upheld)
3. Fees—cannot preclude indigent candidates

L. Right to Travel Interstate

1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny
(30-day period probably okay; one year invalid)
2. Distinctions between old and new residents—invalid

M. Freedom of Speech
1. 1st Amendment limits government regulation of private speech
2. 1st Amendment inapplicable to government speech
a. Permanent monuments on government property a form of government speech
b. Government funding of private speech—generally must be viewpoint neutral
1) Exception: Government funding of the arts
3. Regulation of speech based on content—generally prohibited
a. Exceptions: Unprotected categories (see 7., infra)
b. Speech of government employees
1) Official duties—government may punish public employee for unwanted speech
made as part of employee’s official duties
2) Private speech of government employee
a) Matter of public concern—balance employee’s right as a citizen to comment
against government’s interest as employer in efficient performance of public
service
b) Not a matter of public concern—employer has broad discretion to punish
employee’s disruptive speech
4. Overbreadth and vagueness
a. Prohibition against substantially more speech than necessary voidable as to affected
person for overbreadth
b. Prohibition including a substantial amount of protected speech compared to its legiti-
mate sweep—void as to everyone
c. Regulation failing to give reasonable notice of what is prohibited has chilling effect on
speech and violates due process
d. Official cannot have unfettered discretion over speech issues
5. Scope of speech—includes freedom to refrain from speaking
a. Mandatory financial support of government speech—no 1st Amendment concerns
b. Mandatory financial support of private speech—protected
c. Speech includes symbolic conduct
6. Time, place, and manner regulation
a. Public forums (e.g., sidewalks and parks) and designated public forums (e.g., school-
rooms open for use after school for social events)—regulation valid if:
1) Content neutral
2) Narrowly tailored to serve an important government interest
3) Leaves open alternative channels of communication
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b. Limited public forums (i.e., public property open for expressive activities only on a
ceratin topic) and nonpublic forums (i.e., public property not open for expressive activi-
ties)—regulation valid if:
1) Viewpoint neutral
2) Reasonably related to a legitimate government purpose
7. Unprotected speech—some speech is not protected by 1st Amendment:
a. Clear and present danger of imminent lawless action
b. Fighting words (including true threats)
1) Statutes often overbroad or vague
c. Obscenity
1) Test:
a) Appeals to the prurient interest in sex;
b) Portrays sex in a patently offensive way; and
c) Does not have serious literary, political, or scientific value judged from a
national standard
2) Standard for minors may be different
3) Can prohibit pictures of minors engaging in sex that would not be obscene if
engaged in by adults
4) Zoning ordinances may limit the location of adult entertainment establishments
if designed to reduce the secondary effects of such businesses (e.g., rise in crime,
reduction of property values)
d. Defamation
1) Public official or figure—plaintiff must prove actual malice
a) Actual malice = knowledge of falsity or reckless disregard as to truth
2) Private individual suing on matter of public concern—must prove at least negli-
gence
3) Privacy torts—media defendant cannot be sued for publishing a true fact about a
public record lawfully obtained
8. Commercial speech
a. If speech about unlawful activity or untrue or misleading speech—unprotected
b. Speech regarding lawful activity and not false or misleading—regulation valid if it:
1) Serves a substantial government interest
2) Directly advances that interest
3) Is narrowly tailored to serve that interest
c. Complete bans usually invalid
9. Prior restraints
a. Invalid unless justified by a special societal harm or pursuant to contract
b. Procedural safeguards
1) Standards must be narrowly drawn, reasonable, and definite
2) Injunction must be sought promptly
3) There must be a prompt and final determination of validity of restraint
c. Broadcast media may be more closely regulated than press; cable TV between the two;
Internet regulation subject to strict scrutiny

N. Freedom of Association and Belief

1. Electoral process—sliding scale to judge restrictions on electoral process
a. Severe restriction on 1st Amendment activity must be narrowly tailored to achieve a
compelling purpose
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b. Reasonable and nondiscriminatory regulations generally valid

2. Government employees may be sanctioned for speech undertaken as part of official duties;
balancing test determines whether other speech may be sanctioned—right to comment on
matter of public concern vs. government interest in efficient and orderly workplace
3. Loyalty oaths for federal employees and public officials permissible if not overbroad
a. Oath to support the Constitution and to oppose illegal overthrow of government okay
4. Disclosure of associations for government benefits/employment
a. Permissible if relevant to position
5. School sponsorship of extracurricular clubs
a. Can be content based if viewpoint neutral and reasonably related to a legitimate govern-
ment interest

O. Freedom of Religion

1. Free Exercise Clause

a. No punishment of beliefs—total freedom to believe as desired
b. Conduct cannot be punished solely because religious
c. General conduct regulation that incidentally burdens religious practice—generally valid
d. Religious exemptions for religious belief generally not required except:
1) Amish from mandatory secondary education
2) Conscientious objectors who refuse munitions work from unemployment compen-
sation laws requiring applicants to accept any job
2. Establishment Clause—government action/law respecting the establishment of religion valid
if action/law:
a. Has a secular purpose
b. Has a primary effect that neither advances nor prohibits religion
c. Does not cause excessive entanglement between government and religion
1) Prayer in public schools generally prohibited
2) Invocation prayer at legislative sessions and town hall meetings generally valid
(recognizes long history of prayer in America and adults not of tender impression-
able years)
3) Religious symbols in Christmastime displays valid if accompanied by nonreligious
symbols (recognizes historic roots of American Christmas holiday)
4) Displays of 10 Commandments on public property invalid if shown to have a
predominantly religious purpose