Constitutional Law—Mini Outline

Ordered the way the MBE actually tests it: individual rights first (about half of all Con Law questions), then the threshold and structural stuff. Merits where the points are, gates second.

1. Individual rights—the framework

• State action: the Constitution restrains the government, not private parties. A private actor counts only through the public-function doctrine (doing something traditionally and exclusively governmental) or significant government entanglement.
• Levels of scrutiny drive nearly every rights question:
  • Strict scrutiny—narrowly tailored to a compelling interest (least restrictive means). Government usually loses. Triggered by suspect classes and fundamental rights.
  • Intermediate scrutiny—substantially related to an important interest. Triggered by gender and legitimacy.
  • Rational basis—rationally related to a legitimate interest; the challenger bears the burden. Government almost always wins.
• Rights are applied to the states through incorporation via the Fourteenth Amendment's Due Process Clause.

2. Equal protection

• Pick the classification, pick the scrutiny: race, national origin, alienage (state laws) → strict; gender, legitimacy → intermediate; everything else (age, wealth, disability, most economic regulation) → rational basis.
• For a facially neutral law, heightened scrutiny applies only with both a discriminatory purpose and a discriminatory effect—disparate impact alone isn't enough.
• Fundamental rights (voting, travel, privacy) burdened unequally also trigger strict scrutiny.
• Federal alienage and congressional immigration classifications get more deference (rational basis); a state law reserving self-government/political-function jobs for citizens also gets rational basis.

3. Due process

• Procedural due process: a deprivation of life, liberty, or property requires notice and an opportunity to be heard. How much process is due is set by the Mathews balancing test—the private interest, the risk of erroneous deprivation and value of added safeguards, and the government's interest.
• Substantive due process: a law burdening a fundamental right (marriage, procreation, contraception, parental rights, travel, privacy, voting) gets strict scrutiny; economic and social legislation gets rational basis.
• Takings: government may take private property for public use with just compensation. A permanent physical occupation is a per se taking; a regulation that denies all economic value is a taking; otherwise apply the Penn Central factors (economic impact, interference with expectations, character of the action).
• Contracts Clause: states can't substantially impair existing contracts without an important purpose and reasonable, narrowly tailored means (stricter for public contracts).

4. First Amendment—speech

• Content-based restrictions (subject-matter or viewpoint) get strict scrutiny. Content-neutral time, place, and manner rules in a public forum must be narrowly tailored to a significant interest and leave open ample alternatives.
• Unprotected/less-protected categories: incitement to imminent lawless action (Brandenburg), true threats, fighting words, obscenity (Miller), defamation, and—with reduced protection—commercial speech (Central Hudson).
• Prior restraints are disfavored and get strict scrutiny; licensing schemes need an important reason, definite standards (no unbridled discretion), and procedural safeguards.
• Vagueness/overbreadth: a law is void if a reasonable person can't tell what's prohibited, or if it restricts substantially more speech than the Constitution allows.
• Public forums (streets, parks) vs. designated vs. limited/nonpublic forums—the more public the forum, the harder to restrict speech.
• Symbolic speech may be regulated for an important interest unrelated to suppressing the message, with an incidental burden no greater than necessary (O'Brien). Campaign contribution limits are generally valid; expenditure limits are not. The clause doesn't reach government speech.

5. First Amendment—religion

• Free Exercise: a neutral law of general applicability that only incidentally burdens religion is valid; a law that targets religious practice gets strict scrutiny.
• Establishment: the government can't prefer one religion, or religion over non-religion. Watch for coercion and endorsement; recent doctrine looks to historical practices and understandings.

6. Justiciability (the threshold gates)

• Standing: (1) a concrete, particularized injury (imminent for injunctive relief), (2) causation, and (3) redressability.
• No third-party standing (exceptions: close relationship, the third party can't assert its own rights, or organizational standing). No generalized grievances (can't sue solely as a citizen/taxpayer).
• Ripeness (weigh hardship of withholding review vs. fitness), mootness (needs a live controversy; exceptions: capable of repetition yet evading review, voluntary cessation, class actions), and the political question doctrine.
• Also: the Eleventh Amendment bars most private suits against a state in federal court; abstention and the adequate-and-independent-state-ground doctrine limit review.

7. Federal powers & separation of powers

• Congress has no general police power—tie every federal statute to an enumerated power.
• Commerce Clause: Congress may regulate the channels and instrumentalities of interstate commerce and activities that substantially affect it (economic activity may be aggregated)—but can't compel people to enter commerce.
• Taxing & Spending for the general welfare—spending conditions must be clear, related, and not coercive. Necessary & Proper clause supports means to a legitimate end (no independent power).
• Tenth Amendment: Congress can't commandeer states to legislate or enforce federal law.
• Executive: power is strongest with congressional authorization and weakest against Congress's expressed will (Youngstown). Watch appointment/removal, executive privilege, and the veto.

8. Federalism—states vs. the nation

• Dormant Commerce Clause: even without Congress acting, a state law that discriminates against interstate commerce is almost always invalid (unless necessary to an important non-economic interest with no alternative, or the state is a market participant). A nondiscriminatory law is valid unless its burden clearly outweighs local benefits (Pike balancing).
• Privileges & Immunities (Art. IV): no discrimination against out-of-state citizens as to fundamental rights and livelihood (corporations and aliens can't invoke it).
• Preemption: federal law displaces conflicting state law (express, field, or conflict preemption). Supremacy Clause controls.