Subject outline

Constitutional Law

10 core rule statements and a 807-line detailed rule bank, organized the way the California Bar tests them.

• Standing

  A plaintiff must have standing for a federal court to decide the merits.

  Elements / Factors

  1. 1Injury in fact that is concrete, particularized, and actual or imminent.
  2. 2Causation fairly traceable to defendant.
  3. 3Redressability by a favorable decision.

  Exceptions / Limitations

  • •No generalized grievances.
  • •Third-party standing generally requires the plaintiff’s own injury, a close relationship, and hindrance to the right holder; organizations may sue for members under the associational test.
  • •Taxpayer standing is narrowly limited.

• State Action

  Constitutional individual-rights protections generally require government action.

  Elements / Factors

  1. 1Conduct by government or its officials; or
  2. 2Private conduct fairly attributable to the state through public function, significant encouragement, coercion, joint participation, or entwinement.

  Exceptions / Limitations

  • •Mere licensing, funding, regulation, or provision of public services ordinarily is insufficient.

• Commerce Clause

  Congress may regulate channels of interstate commerce, instrumentalities and persons or things in commerce, and economic activity substantially affecting interstate commerce.

  Elements / Factors

  1. 1Identify one of the three categories.
  2. 2For substantial effects, the regulated activity is economic or part of a comprehensive economic regulatory scheme.
  3. 3The law is rationally related to the commerce power.

  Exceptions / Limitations

  • •Congress generally may not compel noneconomic activity merely because inactivity affects commerce.
  • •Tenth Amendment anti-commandeering bars commands requiring states to enact or administer federal programs.

• Dormant Commerce Clause

  A state law may not discriminate against or unduly burden interstate commerce absent adequate justification.

  Elements / Factors

  1. 1Determine whether the law discriminates facially, purposefully, or in practical effect.
  2. 2Discrimination triggers near-per-se invalidity unless necessary to achieve an important local purpose with no reasonable nondiscriminatory alternative.
  3. 3A nondiscriminatory burden is invalid if clearly excessive relative to local benefits.

  Exceptions / Limitations

  • •Congress may authorize state discrimination.
  • •A state acting as market participant may favor its own citizens, subject to downstream limits.
  • •Traditional government functions may receive special treatment.

• Equal Protection

  Equal protection requires similarly situated persons to be treated alike unless the classification satisfies the applicable level of scrutiny.

  Elements / Factors

  1. 1Identify the classification and whether facial, purposeful, or proven through discriminatory purpose plus effect.
  2. 2Select scrutiny.
  3. 3Evaluate fit between means and governmental objective.

  Exceptions / Limitations

  • •Strict scrutiny: race, national origin, alienage generally, and fundamental-right classifications.
  • •Intermediate scrutiny: sex and legitimacy.
  • •Rational basis: age, wealth, disability, and other classifications.

  California distinction

  • California’s equal-protection guarantees can be analyzed under the California Constitution when expressly called for, but California Bar essays ordinarily use generally applicable federal doctrine unless California law is requested.

• Substantive Due Process

  Substantive due process protects fundamental rights from unjustified government interference.

  Elements / Factors

  1. 1Identify a fundamental right deeply rooted in history and tradition or otherwise recognized.
  2. 2Determine whether government substantially burdens it.
  3. 3Apply strict scrutiny; nonfundamental liberty or economic regulation receives rational-basis review.

  Exceptions / Limitations

  • •Fundamental rights include interstate travel, voting, marriage, contraception, parental control, and specified family rights. Abortion is not a federal fundamental right under current U.S. Supreme Court doctrine.

• Procedural Due Process

  Government may not deprive a person of life, liberty, or property without constitutionally adequate process.

  Elements / Factors

  1. 1Protected life, liberty, or property interest.
  2. 2Government deprivation.
  3. 3Balance private interest, risk of error and value of safeguards, and governmental burdens to determine required notice and hearing.

  Exceptions / Limitations

  • •A random unauthorized deprivation may be cured by adequate post-deprivation remedies where pre-deprivation process is impracticable.
  • •Due process protects entitlements, not unilateral expectations.

• Content-Based Speech Regulation

  A content-based restriction on protected speech is subject to strict scrutiny.

  Elements / Factors

  1. 1The law draws distinctions based on topic, message, idea, or communicative content.
  2. 2Government must prove a compelling interest.
  3. 3The restriction must be narrowly tailored and the least restrictive adequate means.

  Exceptions / Limitations

  • •Content-neutral time, place, and manner rules receive intermediate scrutiny and must leave ample alternative channels.
  • •Unprotected or less-protected categories have separate tests.

• Prior Restraint

  A prior restraint prevents speech before it occurs and carries a heavy presumption against validity.

  Elements / Factors

  1. 1Government licensing, injunction, or prepublication restriction.
  2. 2Narrow, objective, and definite standards.
  3. 3Prompt licensing decisions and prompt judicial review.
  4. 4Extraordinary justification for an injunction against protected speech.

  Exceptions / Limitations

  • •Obscenity regulation and national-security emergencies remain subject to stringent safeguards.

• Free Exercise and Establishment

  A neutral, generally applicable law ordinarily survives a Free Exercise challenge; laws targeting religion trigger strict scrutiny. Establishment questions focus on governmental neutrality and historical practices.

  Elements / Factors

  1. 1Determine neutrality and general applicability.
  2. 2Identify individualized exemptions or comparable secular conduct treated more favorably.
  3. 3Apply strict scrutiny if religion is targeted.
  4. 4For establishment, assess coercion, denominational preference, neutrality, and historical tradition.

  Exceptions / Limitations

  • •A religious claimant may have statutory protection beyond the constitutional minimum.
  • •Government speech and private speech in public forums must be distinguished.