Complete subject outline

Constitutional Law outline for the bar exam

This outline arranges Constitutional Law as a continuous reference: judicial review and justiciability first, then federal legislative and executive power, federalism, state action, due process, equal protection and the First Amendment. Every module gives the propositions to memorize, an attack sequence beginning with the standard of review, the traps examiners build wrong answers from, and a short worked application. The MBE asks 25 scored questions on the subject and the MEE tests it in essay form, so the same rule has to be usable both ways. Reread this outline once your first pass is done and you want the whole subject in a single sitting rather than by unit. Structure questions and individual-rights questions call for different standards of review, so name the category before picking the test. Note the standard of review beside every test as you reread, because it usually decides which answer choice is right.

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Short on time? The constitutional law attack outline gives the analysis order, anchor cases and bar-versus-1L differences on one page.

Constitutional Law outline coverage by unit
Unit	Modules	Propositions
Judicial review	2	9
Congress	1	5
Federalism	1	4
Interstate structure	1	5
Executive power	1	5
Procedural due process	1	5
Substantive rights	1	5
Equal protection	1	5
Property and regulation	1	5
Expression	1	6
Forums and regulation	1	5
Religion and association	1	5
Separation of powers	1	12
Individual rights	4	40
Federal judicial power	1	9
Executive powers	1	10
The relation of nation and states in a federal system	1	10

01 · Judicial review

Standing, organizational standing, and third-party rights

Federal standing requires a concrete and particularized actual or imminent injury, fairly traceable to the defendant, likely redressable by the court.

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Black-letter propositions

An organization may sue for itself or for members who have standing when the interests are germane and individual participation is unnecessary.
A plaintiff generally asserts personal rights, but third-party standing may exist for a close relationship plus hindrance or overbreadth in speech cases.
Taxpayer and citizen status ordinarily do not create standing; narrow Establishment Clause taxpayer doctrine is limited.
Requested prospective relief requires a real likelihood of future injury, not only a past wrong.

Attack sequence

1Identify each plaintiff and each requested remedy.

2State injury, causation, and redressability separately.

3For injunctions, identify threatened future injury.

4If asserting another's rights, test relationship and hindrance.

Traps and exceptions

!Merits strength does not cure standing.

!Statutory authorization cannot eliminate Article III injury.

!A generalized grievance about government illegality is not concrete injury.

WORKED APPLICATION

A person once subjected to an unlawful chokehold seeks an injunction but alleges no realistic chance of another encounter.

Past injury may support damages but not necessarily prospective relief. The plaintiff must show a real and immediate threat of recurrence for an injunction.

Essay-ready formulationArticle III standing is remedy specific and requires concrete injury, traceability, and likely redressability at every stage.

02 · Judicial review

Ripeness, mootness, political questions, and state immunity

Justiciability limits federal courts to disputes fit for adjudication and still live, while political-question and sovereign-immunity doctrines restrict particular claims.

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Black-letter propositions

Ripeness weighs fitness of issues and hardship from withholding review, especially for pre-enforcement challenges.
Mootness exceptions include capable of repetition yet evading review, voluntary cessation not clearly unlikely to recur, and qualifying class actions.
Political questions involve textually committed decisions or a lack of judicially manageable standards, among other factors.
States generally have Eleventh Amendment immunity from private suits for damages, subject to waiver, valid congressional abrogation under post-Civil-War enforcement power, and prospective Ex parte Young relief against officers.
Local governments do not share state sovereign immunity.

Attack sequence

1Is the injury sufficiently imminent?

2Has the dispute remained live through the requested remedy?

3Does an exception preserve it?

4Is the question committed to another branch?

5If a state is sued, identify defendant, relief, waiver, abrogation, or officer-suit route.

Traps and exceptions

!Voluntary cessation does not automatically moot a case.

!Congress cannot abrogate state immunity under every Article I power.

!Calling a dispute political does not make it a political question.

WORKED APPLICATION

A state officer enforces an allegedly unconstitutional licensing rule. A plaintiff seeks only an injunction against future enforcement.

Although a damages action against the state may be immune, prospective relief against the responsible officer can proceed under Ex parte Young if an ongoing federal violation is adequately alleged.

Essay-ready formulationJusticiability requires a fit, live, judicially manageable dispute, and state immunity must be tested against waiver, valid abrogation, and prospective officer relief.

03 · Congress

Commerce, taxing, spending, and necessary powers

Congress possesses enumerated powers plus authority to enact laws necessary and proper to execute them, but those powers have judicially enforceable limits.

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Black-letter propositions

Commerce power reaches channels, instrumentalities and persons or things in commerce, and intrastate economic activity with a substantial aggregate effect.
Congress may tax and spend for the general welfare; conditional spending must be clear, related, noncoercive, and independently constitutional.
Necessary and Proper allows useful, plainly adapted means not prohibited by the Constitution.
Section 5 of the Fourteenth Amendment permits congruent and proportional remedies for state constitutional violations, not redefinition of substantive rights.
The Thirteenth Amendment enforcement power can reach private badges and incidents of slavery.

Attack sequence

1Name the enumerated power.

2Classify regulated conduct.

3For aggregation, ask whether activity is economic.

4For spending, test notice, relatedness, coercion, and independent bars.

5For enforcement legislation, identify the constitutional wrong and remedial fit.

Traps and exceptions

!Congress cannot compel participation in commerce merely to regulate it under the Commerce Clause.

!Necessary and Proper is not an independent freestanding power.

!Conditional funding can become unconstitutional coercion when the threatened loss is overwhelming.

WORKED APPLICATION

Congress requires every inactive individual to purchase a product solely because future purchases affect interstate commerce.

Regulating existing economic activity differs from compelling inactive persons to enter commerce. The Commerce Clause alone likely does not support the mandate, though another enumerated power must be analyzed separately.

Essay-ready formulationFederal legislation must rest on an enumerated power and use means within the distinct limits of commerce, taxing, spending, enforcement, and Necessary and Proper doctrine.

04 · Federalism

Tenth Amendment, commandeering, preemption, and intergovernmental immunity

Federal law may regulate states through generally applicable valid legislation but may not commandeer state legislatures or executive officers to administer a federal program.

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Black-letter propositions

Congress may preempt state law expressly, by occupying a field, or through impossibility or obstacle conflict.
The federal government may encourage states through valid conditional spending or regulate private actors directly.
States may not discriminate against or directly regulate the federal government absent congressional consent.
State sovereign functions do not create a general exemption from otherwise valid, generally applicable federal laws.

Attack sequence

1Identify federal power and target.

2Ask whether the law regulates private actors or commands state government.

3Classify preemption and compare texts and purposes.

4Check discrimination against federal operations.

Traps and exceptions

!A federal law cannot evade anti-commandeering by commanding a state not to legislate.

!A savings clause does not necessarily defeat all conflict preemption.

!Political accountability is central to the commandeering concern.

WORKED APPLICATION

A federal statute orders each state legislature to enact a prescribed waste-disposal code.

The order commandeers state legislative power and is unconstitutional even if Congress could regulate waste handlers directly under an enumerated power.

Essay-ready formulationCongress may regulate directly or offer valid incentives, but it may not command state legislatures or officers to govern according to federal instructions.

05 · Interstate structure

Dormant Commerce Clause and privileges and immunities

State laws burdening interstate commerce are tested for discrimination or excessive incidental burdens, while Article IV protects citizens against discrimination concerning fundamental interstate activities.

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Black-letter propositions

Facially or purposefully discriminatory commerce laws are usually invalid unless necessary to an important nonprotectionist interest with no reasonable nondiscriminatory alternative.
Evenhanded laws are invalid only when burdens on interstate commerce are clearly excessive relative to local benefits.
A state acting as market participant may favor residents in its own market, but downstream regulation is limited.
Congress may authorize state discrimination that the dormant Commerce Clause would otherwise forbid.
Article IV Privileges and Immunities protects out-of-state citizens, not corporations, regarding important economic activities and civil liberties unless substantial reason and close relation exist.

Attack sequence

1Does the law discriminate on face, purpose, or effect?

2If yes, apply the near-per-se rule and alternatives.

3If evenhanded, balance burden and benefit.

4Check market participant and congressional authorization.

5Separately test Article IV plaintiff and protected activity.

Traps and exceptions

!Public health language does not immunize economic protectionism.

!The market-participant exception does not authorize broad regulation outside the market.

!Corporations may invoke the Commerce Clause but not Article IV citizenship protection.

WORKED APPLICATION

A state charges out-of-state processors triple the inspection fee paid by identical in-state processors to protect local jobs.

The fee facially discriminates against interstate commerce for a protectionist purpose and is almost certainly invalid. An out-of-state individual may also examine Article IV if the discrimination burdens a protected livelihood.

Essay-ready formulationDiscriminatory interstate-commerce laws are presumptively invalid, while evenhanded burdens receive balancing and Article IV separately protects citizens' fundamental interstate activities.

06 · Executive power

Presidential authority, appointment, removal, and immunity

Presidential power depends on constitutional text and congressional action, while appointment and removal rules protect the separation of powers.

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Black-letter propositions

Presidential authority is strongest with Congress, uncertain in a zone of twilight, and weakest when contrary to Congress.
Principal officers require presidential nomination and Senate confirmation; Congress may vest appointment of inferior officers in the President, courts, or department heads.
Congress may impose some for-cause removal protection but cannot retain removal control or excessively restrict core executive supervision.
The President has absolute civil damages immunity for official acts, not unofficial conduct; criminal-immunity doctrine requires careful official-act analysis.
Executive privilege is qualified and can yield to demonstrated need in criminal proceedings.

Attack sequence

1Identify source of presidential action.

2Place it in the congressional-authorization framework.

3Classify the officer and appointing actor.

4Examine removal restriction and supervision.

5Separate official from unofficial conduct and civil from criminal process.

Traps and exceptions

!Commander-in-chief status does not create general domestic legislative power.

!Congress cannot appoint officers who execute federal law.

!Privilege is not absolute merely because communications occurred in the executive branch.

WORKED APPLICATION

The President seizes domestic factories after Congress rejected seizure authority but supplied a different labor-dispute procedure.

Presidential power is at its lowest ebb because the action contradicts Congress's chosen scheme and lacks a distinct constitutional grant authorizing domestic seizure.

Essay-ready formulationPresidential action is evaluated against constitutional authority and Congress's expressed will, with appointment, removal, immunity, and privilege analyzed separately.

07 · Procedural due process

Protected interests and required process

The government must provide constitutionally adequate procedures before or, in limited settings, promptly after depriving a person of life, liberty, or a legitimate property entitlement.

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Black-letter propositions

Property interests arise from an independent source creating a legitimate claim of entitlement, not unilateral expectation.
Liberty includes physical freedom and certain reputational-plus or occupational interests.
Process balances the private interest, risk of error and value of additional safeguards, and governmental interests and burdens.
Neutral decision maker, notice, and meaningful opportunity to respond are core, but form and timing vary.
Random unauthorized deprivations may be satisfied by adequate postdeprivation remedies when predeprivation process is impracticable.

Attack sequence

1Identify governmental action.

2Define the exact liberty or property interest and source.

3Determine when deprivation occurs.

4Apply all three balancing factors.

5Specify required notice, hearing, evidence, counsel, and timing.

Traps and exceptions

!The Constitution does not create most property entitlements.

!Government employment alone is not necessarily protected; tenure or for-cause rules may be.

!A negligent government injury is not automatically a due-process deprivation.

WORKED APPLICATION

A tenured public employee is fired for misconduct without any opportunity to hear the charge or respond.

The tenure rule supplies a property entitlement. At minimum, notice of the charge and a meaningful pretermination opportunity to respond are ordinarily required, followed by fuller posttermination procedures if appropriate.

Essay-ready formulationProcedural due process applies when government deprives a protected interest and requires safeguards calibrated to private stakes, error risk, and public burden.

08 · Substantive rights

Substantive due process and fundamental rights

Government infringement of a fundamental right receives heightened scrutiny, while ordinary social and economic regulation ordinarily receives rational-basis review.

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Black-letter propositions

Recognized interests include marriage, parental direction, family integrity, contraception, interstate travel, and certain voting rights under overlapping provisions.
Unenumerated asserted rights are defined carefully and evaluated through history, tradition, and ordered-liberty analysis.
Strict scrutiny requires a compelling objective and narrow tailoring when a fundamental right is directly and substantially burdened.
Economic liberty and ordinary contract regulation generally require only a rational relation to a legitimate interest.
Procedural and substantive due process answer different questions.

Attack sequence

1Define the asserted right precisely.

2Identify constitutional source and whether it is fundamental.

3Determine direct burden and choose scrutiny.

4Apply objective and fit without inventing facts.

Traps and exceptions

!Do not assume every important personal choice is fundamental.

!A law can provide perfect procedure yet violate substantive due process.

!Rational basis tolerates rough line drawing but not sheer irrationality or forbidden purpose.

WORKED APPLICATION

A city bars all unrelated adults from living together in any home but allows unlimited members of a biological family.

The analysis depends on whether the arrangement burdens a protected family or intimate-association interest and on the breadth and purpose of the classification; define the right before choosing scrutiny.

Essay-ready formulationSubstantive due process protects carefully defined fundamental liberties from unjustified government interference and otherwise leaves ordinary regulation to rational-basis review.

09 · Equal protection

Classifications, discriminatory purpose, and tiers of scrutiny

Equal protection scrutiny turns on the classification, governmental purpose, and burden on suspect classes or fundamental rights.

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Black-letter propositions

Race, national origin, and many alienage classifications receive strict scrutiny; sex and nonmarital-birth classifications receive intermediate scrutiny.
Facial neutrality plus disparate impact is insufficient without discriminatory purpose.
Race-conscious government action is subject to strict scrutiny whether described as benign or burdensome.
Sex classifications require an exceedingly persuasive justification and substantial relation to an important objective, without overbroad stereotypes.
Age, disability, wealth, and most other classifications receive rational-basis review, sometimes with meaningful examination of animus.

Attack sequence

1Identify the exact classification.

2Determine whether facial, administered, or purpose-based.

3Choose scrutiny and allocate burden.

4Evaluate actual objective and fit.

5If a fundamental right is involved, analyze that route too.

Traps and exceptions

!Disproportionate effect is evidence but not itself purpose.

!A remedial label does not lower strict scrutiny for racial classifications.

!Rational-basis review is deferential but does not permit bare animus.

WORKED APPLICATION

A neutral hiring test excludes a higher percentage of one racial group, but evidence shows no discriminatory design or administration.

Disparate impact alone does not establish an equal-protection violation. A plaintiff must prove discriminatory purpose, though other statutory claims may use different standards.

Essay-ready formulationEqual protection requires identification of the classification and purpose before applying strict, intermediate, or rational-basis review.

10 · Property and regulation

Takings, exactions, and contracts

The Takings Clause requires just compensation when government takes private property, while regulatory restrictions and permit conditions receive distinct tests.

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Black-letter propositions

Permanent physical occupation and regulations eliminating all economically beneficial use are categorical takings subject to narrow background-principles exceptions.
Other regulatory takings use a fact-specific analysis emphasizing economic impact, investment-backed expectations, and character of government action.
Land-use exactions require essential nexus and rough proportionality to project impacts, including many monetary demands tied to permitting.
Property is defined by independent law; compensation rather than invalidation is the usual remedy for a taking.
State impairment of contracts receives heightened examination when substantial, especially for the state's own obligations.

Attack sequence

1Identify the property interest and government action.

2Choose physical, total-use, Penn Central, exaction, or other doctrine.

3Analyze parcel and background limitations.

4Determine public use and compensation remedy.

Traps and exceptions

!A regulation reducing value is not automatically a taking.

!Property need not be real estate.

!A public-use challenge is difficult when the taking is rationally related to a public purpose.

WORKED APPLICATION

A permit is conditioned on dedicating a public bike path unrelated to the development's traffic effects.

The exaction likely lacks the essential nexus between the condition and the project's identified impact. Even a useful public path cannot be demanded through permitting without the required connection and proportionality.

Essay-ready formulationA taking may be physical, total, ad hoc regulatory, or an unconstitutional exaction, and just compensation is ordinarily the constitutional remedy.

11 · Expression

Content regulation, unprotected speech, and overbreadth

Government regulation of expression depends on whether the law is content based, viewpoint based, or directed at a narrowly defined category of unprotected speech.

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Black-letter propositions

Content-based restrictions ordinarily receive strict scrutiny; viewpoint discrimination is an especially forbidden subset.
Incitement requires advocacy intended and likely to produce imminent lawless action.
True threats communicate serious unlawful violence; fighting words are narrow face-to-face personal insults likely to provoke immediate violence.
Obscenity uses the community-standards, patently offensive, and serious-value framework; child pornography rules are distinct.
Defamation, commercial speech, and expressive conduct receive category-specific protection.
Substantial overbreadth can allow facial challenge when a law sweeps in much protected speech.

Attack sequence

1Is conduct expressive and is government responsible?

2Read the law for content and viewpoint triggers.

3Test exact elements of any unprotected category.

4Choose facial or as-applied challenge and remedy.

5Consider vagueness and prior restraint.

Traps and exceptions

!Offensive or hateful ideas are not a standalone unprotected category.

!The government cannot create viewpoint discrimination inside an unprotected category.

!A listener's hostile reaction usually cannot justify suppressing the speaker.

WORKED APPLICATION

A statute bans public statements that 'disrespect the mayor' but allows praise.

The law discriminates by viewpoint and is unconstitutional. Disrespect is not an unprotected category, and the government cannot suppress criticism because of its message.

Essay-ready formulationContent-based speech laws generally require strict scrutiny, and claimed unprotected speech must satisfy the precise elements of a historically recognized category.

12 · Forums and regulation

Public forums, time-place-manner rules, and government speech

The level of speech protection on government property depends on forum classification and whether the expression is private speech or the government's own message.

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Black-letter propositions

Traditional and designated public forums permit content-neutral time, place, and manner rules narrowly tailored to a significant interest with ample alternatives.
Designated forums may be closed prospectively but are protected while open; limited public forums may impose reasonable viewpoint-neutral restrictions consistent with purpose.
Nonpublic forums allow reasonable, viewpoint-neutral limits.
Government speech is not governed by the Free Speech Clause, but the government-speech label depends on history, public attribution, and control.
Permit systems require definite standards and adequate procedural safeguards when they operate as prior restraints.

Attack sequence

1Identify property and speaker.

2Classify forum or government speech.

3Determine content and viewpoint neutrality.

4Apply the matching forum test.

5Check licensing discretion, alternatives, and tailoring.

Traps and exceptions

!Government ownership does not automatically make all expression government speech.

!A content-neutral rule need not be the least restrictive means, but cannot burden substantially more speech than needed.

!A limited forum can restrict subject matter but not viewpoint within the allowed subject.

WORKED APPLICATION

A public university opens rooms for student groups discussing social issues but denies access only to a religious perspective on those issues.

Once the limited forum includes the subject, excluding a religious viewpoint is viewpoint discrimination and invalid even though the university need not open rooms to every subject.

Essay-ready formulationSpeech on government property is governed by forum-specific standards, with viewpoint neutrality required in every forum open to private speech.

13 · Religion and association

Free exercise, establishment, association, and compelled speech

The First Amendment protects religious exercise, limits government religious establishment, and restricts compelled expression and unjustified burdens on association.

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Black-letter propositions

Neutral, generally applicable laws ordinarily survive incidental religious burdens, while targeting or comparable secular exceptions can trigger strict scrutiny.
Government religious practices are evaluated with attention to history, tradition, coercion, neutrality, and endorsement concerns in the applicable setting.
Government may not compel ideological speech or force private speakers to host a message when attribution and expressive autonomy are materially affected.
Disclosure or membership burdens on expressive association require fit to sufficiently important interests, with exacting or heightened review depending on the burden.
Public benefits generally cannot exclude otherwise eligible recipients solely because of religious status or protected religious use, subject to narrow historical exceptions.

Attack sequence

1Identify law, burden, and comparator.

2Test neutrality in text, purpose, administration, and exemptions.

3For establishment, identify practice, history, coercion, and government attribution.

4For compelled speech, determine speaker, message, and perceived attribution.

5For association, identify expressive purpose and burden.

Traps and exceptions

!A facially neutral label cannot hide religious targeting.

!Religious exercise does not automatically exempt a person from every neutral law.

!Government funding of private choice is not identical to direct government worship.

WORKED APPLICATION

A city allows individualized exemptions from a vaccination rule for secular hardship but categorically refuses to consider religious hardship.

The system may not be generally applicable because comparable secular exemptions undermine the asserted interest while religious requests are excluded. Strict scrutiny may apply.

Essay-ready formulationReligious burdens turn on neutrality and general applicability, while establishment, compelled speech, and association require attention to government attribution, coercion, and expressive autonomy.

14 · Separation of powers

Separation of powers: presentment, the legislative veto, the line-item veto, executive power, war powers, and Speech or Debate

The Constitution divides lawmaking among both houses and the President, and the exam tests what Congress and the President may do alone, how far the President may act without statutory authority, and what the Speech or Debate Clause protects.

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Black-letter propositions

Every bill that has passed the House and the Senate must, before it becomes a law, be presented to the President, who either signs it or returns it with objections to the house in which it originated.
If two thirds of each house pass the bill again after reconsideration, it becomes law over the veto, and the votes must be determined by yeas and nays.
If the President does not return a bill within ten days (Sundays excepted) after it is presented, it becomes law as if signed, unless Congress by adjournment prevents its return, in which case it does not become law.
Every order, resolution or vote to which the concurrence of both houses is necessary, except on a question of adjournment, must also be presented to the President.
A one-house legislative veto of an executive decision is invalid, because it is an exercise of legislative power that does not satisfy the bicameralism and presentment requirements of Article I (INS v. Chadha).
The Line Item Veto Act's cancellation procedure, under which the President canceled parts of statutes after signing them, violates the Presentment Clause, because the Constitution gives the President no power to amend or repeal a law (Clinton v. City of New York).
The President's seizure of private steel mills, ordered without statutory authority, was invalid, because the lawmaking power is vested in Congress alone and could not be implied from the President's Article II powers or from his role as Commander in Chief (Youngstown).
Congress has the power to declare war, raise and support armies, and provide and maintain a navy, while the President is the Commander in Chief of the armed forces.
Under the War Powers Resolution, in the absence of a declaration of war the President must report to Congress within 48 hours when forces are introduced into hostilities or into a foreign nation's territory equipped for combat.
Within sixty calendar days after the report is submitted or required to be submitted, the President must terminate the use of forces unless Congress has declared war or specifically authorized the use, extended the period by law, or is physically unable to meet because of an armed attack.
Senators and Representatives may not be questioned in any other place for any speech or debate in either House, and the clause protects legislative acts and the motivation for them, but not all conduct related to the legislative process.
A member of Congress may be prosecuted for bribery when the prosecution does not require inquiry into legislative acts or their motivation (United States v. Brewster).

Attack sequence

1Identify who acted (Congress, one house, the President) and whether the action changes legal rights and duties.

2If it does, ask whether it satisfied bicameralism and presentment or was done under a valid delegation.

3For presidential action without a statute, place it in Justice Jackson's framework of authority and check whether Congress has authorized, been silent, or opposed it.

4For Speech or Debate, ask whether the act is a legislative act or merely related to the legislative process.

Traps and exceptions

!A one-house veto can be invalid even though the executive agrees with the result, because the defect is in the lawmaking process.

!A President may not cure a lack of statutory authority by pointing to the Commander in Chief power over domestic property.

!The Speech or Debate Clause protects legislative acts, not every act by a legislator, and it does not bar a bribery prosecution that needs no inquiry into legislative acts.

WORKED APPLICATION

A statute lets either house of Congress, by resolution, overturn a decision by an agency to grant a waiver to a company. The agency grants a waiver, and the House passes a resolution rejecting it.

The resolution alters the company's legal rights and was not passed by both houses or presented to the President. Under Chadha it is an invalid legislative veto.

Essay-ready formulationAsk whether an action is legislative in effect, apply Article I, section 7, then apply Youngstown to any presidential action lacking statutory authority, and finish with the specific clause at issue.

15 · Individual rights

Incorporation of the Bill of Rights and unconstitutional conditions

Most Bill of Rights guarantees limit state governments through the Fourteenth Amendment's Due Process Clause, and the government cannot always attach conditions to a benefit that it could not impose directly.

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Black-letter propositions

The Bill of Rights originally applied only to the federal government, and the Supreme Court has since held that most of its guarantees apply to the states through the Due Process Clause of the Fourteenth Amendment.
The test for incorporation asks whether a particular guarantee is fundamental to our scheme of ordered liberty and system of justice, and not whether some civilized legal system could be imagined that lacked it.
A right that is incorporated applies against the states with the same content as it does against the federal government.
The right to jury trial is incorporated: the Fourteenth Amendment guarantees a jury in all criminal cases that would require one in federal court under the Sixth Amendment (Duncan v. Louisiana).
A crime punishable by two years in prison is a serious crime for which a jury is required, and the penalty authorized for a crime is of major relevance in deciding whether it is serious (Duncan).
The Second Amendment right to keep and bear arms for the purpose of self-defense is incorporated and applies to the states (McDonald v. City of Chicago).
The government may not condition a benefit on the surrender of a constitutional right when the condition leverages funding to regulate protected activity beyond the program itself, though it may define the limits of the program it funds.
A federal funding condition that requires a recipient to affirm a belief that cannot be confined within the government program violates the First Amendment (Agency for International Development v. Alliance for Open Society).
A government agency may condition a land-use permit on a concession by the owner only if the condition furthers the same governmental purpose that would justify denying the permit (Nollan v. California Coastal Commission).
A condition that does not serve the public purpose the government relies on to justify the restriction is not land-use regulation, and requiring it without compensation violates the Takings Clause.

Attack sequence

1Identify the Bill of Rights guarantee and ask whether it has been incorporated against the states.

2If it has, apply it with the same content it has against the federal government.

3For a benefit with a condition, ask whether the condition defines the limits of the program or leverages the benefit to reach conduct outside it.

4For a permit condition, ask whether the condition is connected to the reason the government could have denied the permit.

Traps and exceptions

!Incorporation is not all or nothing, because the Court has incorporated most guarantees one at a time, and the test is fundamentality to ordered liberty.

!The government can say what it will fund, but it cannot compel a recipient to adopt a belief outside the program.

!A permit condition unrelated to the reason the government may deny the permit is a taking of the property interest demanded.

WORKED APPLICATION

A state charges a defendant with a misdemeanor carrying a maximum sentence of two years and refuses his request for a jury, relying on a state law granting juries only in felony cases.

The Sixth Amendment jury guarantee is incorporated, and a crime punishable by two years in prison is serious, so the defendant is entitled to a jury under Duncan.

Essay-ready formulationState the incorporation test and identify whether the right is incorporated, then apply it with the same content, and for a conditional benefit ask whether the condition is within or outside the program.

16 · Federal judicial power

Advisory opinions and adequate and independent state grounds

Federal courts decide only cases and controversies, and the Supreme Court will not review a state court judgment that rests on an adequate and independent state ground, since doing so would produce an advisory opinion.

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Black-letter propositions

Article III limits the judicial power of the United States to the listed cases and controversies, including cases arising under the Constitution, federal laws and treaties.
A case or controversy implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.
Federal courts may not issue advisory opinions, and Congress may not assign to the judiciary duties that are not properly judicial, such as a suit created to test the constitutionality of prior acts of Congress (Muskrat v. United States).
The Supreme Court may review by certiorari a final judgment of the highest court of a state in which a decision could be had, where the validity of a federal treaty or statute, or of a state statute under federal law, is drawn in question, or where a right is claimed under federal law.
The Supreme Court will not review a state court judgment that rests on an adequate and independent state ground, because a decision of the federal question would not change the result and would be an advisory opinion.
When a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and the adequacy and independence of any possible state ground is not clear from the face of the opinion, the Supreme Court will accept that the state court decided as it did because it believed federal law required it (Michigan v. Long).
If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate and independent state grounds, the Supreme Court will not review the decision.
Under Michigan v. Long, the Supreme Court will not look beyond the opinion under review, and it will not require state courts to reconsider cases to clarify the grounds of their decisions.
A state court may give a right greater protection under its own constitution than the federal Constitution requires, and a clear statement that the ruling rests on state law keeps the case out of the Supreme Court.

Attack sequence

1Ask whether the request is for an opinion on a hypothetical question or in a case with adverse parties.

2For Supreme Court review of a state judgment, ask whether a federal question was decided and whether the judgment could stand on state law alone.

3Read the state opinion for a clear and express statement of an independent state ground.

4If the opinion relies primarily on federal law with only passing state law citations, assume review is available.

Traps and exceptions

!A state court's mention of state law does not by itself create an independent ground when the opinion relies mainly on federal law.

!The Supreme Court reviews the highest state court in which a decision could be had, not just the state supreme court by name.

!A statute that creates a suit to test the validity of a law without adverse interests is an advisory opinion.

WORKED APPLICATION

A state supreme court suppresses evidence and cites the Fourth Amendment and federal cases throughout, with a single passing citation to the state constitution. The state petitions for certiorari.

Because the decision rests primarily on federal law and does not clearly and expressly rely on an independent state ground, the Supreme Court will assume the state court believed federal law required its decision and may review it.

Essay-ready formulationState the case-or-controversy limit, then explain that a state judgment resting on an adequate and independent state ground is not reviewable, and apply the Michigan v. Long presumption.

17 · Executive powers

Federal administrative agencies: removal power, appointments, delegation, judicial review of statutes, and agency adjudication

The President generally may remove executive officers at will, subject to narrow exceptions for multimember expert bodies and inferior officers with limited duties, Congress may delegate power if it supplies an intelligible principle, courts no longer defer to agency interpretations of ambiguous statutes, and the Seventh Amendment requires a jury when an agency seeks civil penalties for common-law-type fraud.

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Black-letter propositions

Article II vests the executive power in the President, who generally may supervise and remove those who exercise executive power on his behalf, and Congress may limit that power only in narrow circumstances.
Congress may give for-cause removal protection to a multimember body of experts who are balanced along partisan lines, appointed to staggered terms, and perform only quasi-legislative and quasi-judicial functions without executive power, as in Humphrey's Executor.
Congress may give for-cause removal protection to an inferior officer with limited duties and no policymaking or administrative authority, as with the independent counsel in Morrison v. Olson.
An independent agency led by a single director with significant executive power, removable only for inefficiency, neglect, or malfeasance, violates the separation of powers.
Dual for-cause limits, under which a board's members can be removed only for good cause by commissioners who themselves can be removed only for good cause by the President, contravene the separation of powers, and the remedy is to make the board members removable at will by the commission.
Congress may vest the appointment of inferior officers in the President alone, in the courts of law, or in the heads of departments, and Congress may vest the appointment of an independent counsel in a special court without violating the Appointments Clause.
Congress may delegate power to an agency or commission if it lays down an intelligible principle to which the delegate must conform, and the Court has upheld broad delegations because Congress cannot do its job without the ability to delegate under general directives.
Under the Administrative Procedure Act courts must exercise independent judgment in deciding whether an agency acted within its statutory authority and may not defer to an agency's interpretation of a statute just because it is ambiguous, and Chevron is overruled.
When the SEC seeks civil penalties for securities fraud, the Seventh Amendment gives the defendant a jury trial, because the antifraud provisions replicate common-law fraud and the public rights exception does not apply.
A challenge to the structure of an agency is a constitutional claim outside the agency's expertise, so a federal district court can hear it even though a statute provides for review of agency orders in a court of appeals.

Attack sequence

1Identify the officer or body and whether it exercises significant executive power.

2Ask whether the removal limit fits one of the two recognized exceptions or extends beyond them.

3For appointments, decide whether the officer is a principal or an inferior officer and who appointed him.

4For delegation, ask whether Congress supplied an intelligible principle.

5For adjudication, ask whether the action seeks civil penalties for a claim like a common-law action, which triggers the jury right.

Traps and exceptions

!Humphrey's Executor does not extend to a single director with significant executive authority.

!Two layers of for-cause removal protection are invalid for a board whose members exercise executive power.

!The intelligible-principle test is very forgiving, and courts rarely strike a delegation.

!Courts no longer defer to an agency because a statute is ambiguous, although the agency's view may still be persuasive.

WORKED APPLICATION

Congress creates a consumer agency led by a single director who serves a five-year term, can be removed only for inefficiency, neglect, or malfeasance, and has power to seek large civil penalties in federal court.

Under the two exceptions the Court has recognized, the single director with significant executive power does not fit Humphrey's Executor or Morrison, so the removal restriction violates the separation of powers.

Essay-ready formulationIdentify the structural feature challenged, name the constitutional provision, and test it against the recognized exceptions and the intelligible-principle standard.

18 · Individual rights

Religion clauses: legislative prayer, religious displays, school aid, neutral laws, individualized exemptions, and religious status

The Establishment Clause is now read by historical practices and understandings, permitting legislative prayer and long-standing religious monuments, while the Free Exercise Clause lets the state apply neutral, generally applicable laws to religious conduct but requires strict scrutiny when a law is not neutral or generally applicable, including when it denies a benefit because of religious status.

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Black-letter propositions

Legislative prayer, though religious, is compatible with the Establishment Clause because of a long history of the practice, and a town's prayer program is not invalid merely because most prayers are sectarian or because the givers are drawn from local congregations.
A prayer practice violates the Establishment Clause only if it coerces participants, and offense or a feeling of exclusion is not coercion, especially when the prayer is at the ceremonial opening of a meeting and citizens are not dissuaded from leaving or arriving late.
Courts interpret the Establishment Clause by reference to historical practices and understandings and no longer apply the Lemon test or the endorsement test.
An established religiously expressive monument, such as a long-standing memorial cross, is presumed constitutional, because as time passes the purposes of the monument multiply and its original purpose becomes harder to identify.
Under Lemon, aid programs that create excessive entanglement between government and religion, such as supplementing salaries of teachers in church-affiliated schools, were held unconstitutional, though the Court now applies the historical approach.
A law that incidentally burdens religion is not subject to strict scrutiny under the Free Exercise Clause if it is neutral and generally applicable, so a state may deny unemployment benefits to a person fired for sacramental use of a prohibited drug.
A law that is not neutral or generally applicable must be justified by a compelling governmental interest and be narrowly tailored, and a law is not generally applicable if it invites the government to consider reasons for conduct through a system of individualized exemptions.
Denying an unemployment benefit to a person who refused Saturday work because of her religion burdens free exercise and requires a compelling state interest, as in Sherbert v. Verner.
Denying an otherwise available public benefit solely because of an applicant's religious status or character violates the Free Exercise Clause, as with a state program that excluded church-owned applicants from a grant program and a tuition program that excluded sectarian schools.
The Free Exercise and Free Speech Clauses protect an individual's private religious observance from government reprisal, such as firing a coach for a quiet personal prayer after games.

Attack sequence

1Decide whether the claim arises under the Establishment Clause or the Free Exercise Clause.

2For an Establishment Clause claim, ask about historical practice and coercion and not the Lemon test.

3For a free exercise claim, ask whether the law is neutral and generally applicable, including any individualized exemption system.

4If it is not, apply strict scrutiny: compelling interest and narrow tailoring.

5For benefits, ask whether the denial rests on religious status, which triggers strict scrutiny.

Traps and exceptions

!Offense at a prayer is not coercion under the Establishment Clause.

!The Lemon test is no longer the standard, and the Court looks to historical practices and understandings.

!A neutral, generally applicable law that incidentally burdens religion does not receive strict scrutiny.

!A denial of a public benefit because of religious status faces strict scrutiny even when the benefit is not constitutionally required.

WORKED APPLICATION

A state program reimburses secular private schools for playground safety surfaces but excludes any applicant owned by a church. A church-run preschool applies and is denied because of its church ownership.

Excluding an otherwise eligible applicant solely because of its religious status penalizes free exercise and must satisfy strict scrutiny, which a categorical church exclusion cannot meet, so the denial violates the Free Exercise Clause.

Essay-ready formulationState which clause applies, name the test the Court now uses, and apply it to the facts, noting neutrality, general applicability, and religious status.

19 · Individual rights

Free speech: incitement, fighting words, forums, permit schemes, public employees, students, and press access

Government may punish advocacy only when it is directed to inciting imminent lawless action and likely to produce it, may regulate the time, place, and manner of speech in content-neutral ways that leave open alternative channels, needs definite standards for permits, may discipline public employees for speech made as part of their duties, and must justify limits on student speech and on access to trials.

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Black-letter propositions

A state may not forbid advocacy of the use of force or of law violation except where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Fighting words, meaning epithets likely to provoke the average person to retaliation and cause a breach of the peace, are unprotected, and a statute punishing face-to-face abusive words on a public street that tend to provoke violence may be upheld.
A content-neutral regulation of the time, place, or manner of speech in a public forum is valid if it is narrowly tailored to serve a significant government interest and leaves open ample alternative channels, and it need not be the least restrictive means.
On property that is not a traditional or designated public forum, the government may reserve it for its intended purposes if the regulation of speech is reasonable and does not suppress speech merely because officials oppose the speaker's view.
A permit scheme for a march or rally is invalid if it gives a government official overly broad licensing discretion, or if it sets fees without narrowly drawn, reasonable, and definite standards.
A public employee's speech as a citizen on a matter of public concern is balanced against the government's interest in the efficiency of its services, and a teacher's statements on a matter of public concern that do not interfere with his duties or school operation cannot be a basis for dismissal.
When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes and the Constitution does not insulate the statements from employer discipline.
Students have First Amendment rights at school, and a school may not prohibit expression of opinion without evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, but schools have a special interest in regulating some off-campus speech, such as serious bullying, threats, or breaches of security.
The right of the public and press to attend criminal trials is guaranteed by the First and Fourteenth Amendments, so the trial must be open absent an overriding interest articulated in findings, but the press has no constitutional right of special access to prisons or information not available to the public generally.
A protective order limiting a party's dissemination of information obtained only through pretrial discovery does not offend the First Amendment when it serves an important interest and is no broader than necessary, because a litigant has no First Amendment right of access to information made available only for purposes of trying a lawsuit.

Attack sequence

1Decide whether the speech is protected or falls in a category such as incitement or fighting words.

2For a regulation, ask whether it is content-based, which triggers strict scrutiny, or content-neutral, which triggers intermediate scrutiny.

3Classify the forum and apply the corresponding test.

4For a permit scheme, look for standards that limit the official's discretion.

5For public employees and students, identify the setting and apply the special test.

Traps and exceptions

!Advocacy of illegal action is protected unless it is directed to inciting imminent lawless action and is likely to produce it.

!A time, place, and manner rule need not use the least restrictive alternative.

!An employee speaking pursuant to official duties does not speak as a citizen.

!The press has no special right of access to information the public cannot get, but trials are presumptively open.

WORKED APPLICATION

A county ordinance lets its administrator set parade permit fees at any amount he decides, based on the expected cost of public order, with no written standards, and the administrator charges a group with unpopular views a much higher fee.

The ordinance gives the administrator unbridled discretion without narrowly drawn, reasonable, and definite standards, so it is invalid on its face as a permit scheme.

Essay-ready formulationClassify the speech and the forum, state whether the rule is content-based or content-neutral, and apply the matching standard including alternative channels and discretion.

20 · Individual rights

Fundamental rights: medical treatment, abortion, voting, campaign spending, association, travel, and the right to bear arms

Substantive due process protects only rights deeply rooted in the nation's history and tradition, so there is no constitutional right to abortion or to assisted suicide, but a competent person may refuse unwanted medical treatment; the right to vote, to travel, to associate, and to bear arms are protected by their own tests, including one person one vote, a ban on poll taxes, strict scrutiny of independent political spending limits, and a historical-tradition test for firearms.

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Black-letter propositions

A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment, which is balanced against state interests, and a state may require clear and convincing evidence of an incompetent person's wishes before life-sustaining treatment is withdrawn.
Substantive due process protects fundamental rights and liberties that are, objectively, deeply rooted in the nation's history and tradition, and it requires a careful description of the asserted right, so a claimed right to assistance in committing suicide is not protected.
The Constitution does not confer a right to abortion, and the authority to regulate abortion is returned to the people and their elected representatives, so a state law regulating abortion is reviewed under rational basis.
A state may not condition the right to vote on payment of a fee or tax, and classifications that impinge on the franchise are closely scrutinized.
The Equal Protection Clause requires that seats in both houses of a state legislature be apportioned substantially on a population basis, because legislators represent people and not areas.
Even-handed voter-identification requirements that protect the integrity and reliability of the electoral process are permitted, and a law's burden on voters must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.
Contribution limits are constitutional because they guard against actual or apparent corruption, but the government may not suppress independent political expenditures by corporations on the basis of the speaker's corporate identity.
Forcing a group to accept a member it does not want violates its First Amendment right of expressive association if the person's presence significantly affects the group's ability to advocate its views, though the right can be overridden by regulations that serve compelling state interests unrelated to the suppression of ideas and cannot be achieved by less restrictive means.
The right to travel includes the right to be treated like other citizens of a new state, so a state may not pay newly arrived residents lower welfare benefits than longer-term residents, absent a compelling governmental interest.
The Second Amendment protects an individual right to keep and bear arms, and when its plain text covers conduct the government must show that a firearm regulation is consistent with the nation's historical tradition, though a person found by a court to pose a credible threat of physical harm to another may be temporarily disarmed.

Attack sequence

1Identify the right asserted and describe it carefully before asking whether it is deeply rooted in history and tradition.

2For voting, decide whether the law burdens who may vote, how votes are weighed, or how votes are cast.

3For political spending, distinguish contributions from independent expenditures, and classify the speaker.

4For association, ask whether the forced member significantly affects the group's expression.

5For firearms, ask whether the plain text covers the conduct and whether history supports the regulation.

Traps and exceptions

!A poll tax is invalid even though the state has an interest in the fee.

!A district drawn with unequal populations violates equal protection because votes are diluted.

!There is no constitutional right to abortion, so rational basis review applies to abortion regulations.

!The Second Amendment right is not unlimited, and courts look to historical tradition of regulation.

WORKED APPLICATION

A state requires anyone who wants to vote to pay a poll tax of $1.50, and it refuses to allow those who cannot pay to vote. A resident who cannot pay sues under the Equal Protection Clause.

Conditioning the right to vote on payment of a fee violates the Equal Protection Clause, because wealth is unrelated to a voter's qualifications, so the requirement is invalid.

Essay-ready formulationName the right, state the governing test, and apply it to the law, distinguishing rights whose scope depends on history and tradition from rights protected by their own standards.

21 · The relation of nation and states in a federal system

State sovereign immunity, the spending power, anticommandeering, and the presumption against preemption

States are immune from private damages suits that Congress tries to authorize under its Article I powers, but federal officers can be enjoined by suits against state officials for prospective relief, Congress may attach clear, related, noncoercive conditions to federal money, it cannot commandeer state legislatures or executives, and courts presume that federal law does not displace traditional state police powers unless Congress clearly intended it.

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Black-letter propositions

The Eleventh Amendment and the structure of the Constitution give a State immunity from suits by private parties, and Congress cannot use its Article I powers, such as the Indian Commerce Clause, to abrogate that immunity in federal court.
A State's immunity from private suits extends to suits in its own courts, and Congress may not subject a State to private suits for damages in state court under its Article I powers.
A suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law is not barred by the Eleventh Amendment, because an official who enforces an unconstitutional statute is stripped of his official character.
Congress may attach conditions on federal funds if the spending is for the general welfare, the conditions are stated unambiguously so states can choose knowingly, the conditions are related to a national concern, and the conditions do not require states to violate other constitutional provisions.
Congress crosses the line from encouragement to coercion when it threatens to withdraw a State's existing federal funds in order to force the State to accept a dramatic new program, so the threat to cut off all existing Medicaid funds was unconstitutional.
Congress may not commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program, and it may not order state executive officers to conduct background checks under a federal statute.
A federal statute that prohibits states from authorizing sports gambling violates the anticommandeering rule, because Congress may not issue direct orders to the governments of the States.
Congress may urge a State to adopt a federal policy by spending conditions or by offering states the choice of regulating according to federal standards or having state law preempted, which is not commandeering.
Courts begin with the assumption that the historic police powers of the States were not superseded by federal law unless that was the clear and manifest purpose of Congress.
The presumption against preemption applies even when the federal government has regulated an area for a long time, because it rests on respect for the States as independent sovereigns and the assumption that Congress does not cavalierly preempt state-law causes of action.

Attack sequence

1For a suit against a state, ask who is sued: the state itself, which has immunity, or a state officer for prospective relief.

2Ask whether Congress acted under a power that can abrogate immunity, such as the Fourteenth Amendment, and not under Article I.

3For a spending condition, check the four Dole limits and whether the threat is coercive.

4For a federal mandate, ask whether it commands the state legislature or executive or regulates private conduct.

5For preemption, start with the presumption against preemption and look for clear and manifest purpose.

Traps and exceptions

!Ex parte Young allows prospective injunctive relief against a state official, but it does not allow damages against the State.

!Congress may not abrogate state immunity through the Indian Commerce Clause or other Article I powers.

!A funding condition must be unambiguous, related to the purpose of the funds, and not coercive.

!A federal law that regulates private conduct is not commandeering even if it burdens the States indirectly.

WORKED APPLICATION

A federal statute requires state law enforcement officers to run background checks on handgun purchasers until a national system is ready, and a county sheriff challenges the requirement.

Congress cannot command state executive officers to administer a federal regulatory program, so the requirement violates the anticommandeering principle under the Tenth Amendment.

Essay-ready formulationIdentify whether the federal action regulates private parties or the states themselves, apply the immunity, spending, or anticommandeering rule, and note the presumption against preemption.

QUICK ANSWERS

What NCBE lists for Constitutional Law

What does the nature of judicial review category cover?+

Organization of state and federal courts, jurisdiction including the Eleventh Amendment, and judicial review in operation such as case or controversy, standing, ripeness and mootness.

What separation of powers topics does NCBE list?+

Powers of Congress, powers of the president, and federal interbranch relationships including the presentment requirement, nondelegation and immunities.

What federalism topics are in the outline?+

Intergovernmental immunities including the 10th Amendment, negative implications of the commerce clause, the supremacy clause and preemption.

What individual rights topics are listed?+

State action, due process, equal protection, takings, other protections such as the contracts clause and bills of attainder, and First Amendment freedoms.

What equal protection topics does NCBE list?+

Fundamental rights, classifications subject to heightened scrutiny, and rational basis review, all listed under individual rights, the category that carries about half the questions.

What First Amendment topics does the outline include?+

Freedom of religion, freedom of expression, freedom of the press and freedom of association, with expression divided into content-based, content-neutral, unprotected, commercial and other regulation.

Which justiciability topics appear in the outline?+

The case or controversy requirement including standing, ripeness and mootness, the adequate and independent state ground, and political questions.

Which Congressional powers does NCBE list?+

Commerce, taxing and spending powers, war, defense and foreign affairs powers, and the power to enforce the 13th, 14th and 15th Amendments.

SOURCE DESK

Official NCBE sources

NCBE: MBE subject matter outline↗NCBE: preparing for the MBE↗

Governing text

Every constitutional-law rule traces to the constitutional text, which the National Archives publishes in full. Constitution of the United States, full text (National Archives) ↗