Constitutional Law California Bar Exam Short Outline


I. Jusiticiable Case or Controversy

  1. Standing (injury, causation, and redressibility)

    1. Associational Standing. Must show: (1) members would have standing to sue on their own; (2) interests are germane to the organization’s purpose; (3) no need for member participation

    2. Taxpayer Standing: (generally establishment clause) Must show: (1) enacted under Congress’s taxing and spending power; (2) exceeds some specific limitation on power

  2. Ripeness (fitness of the issue, question of hardship if review is denied)

  3. Mootness (actual controversy must exist at all stages of lit., except: wrong capable of repetition but evading review, voluntary cessation)

  4. Decline Jurisdiction?

    1. Political Question

    2. Abstention: unclear state law; pending state prosecution

    3. Eleventh Amendment: bars suits against states in federal court. Exceptions, (1) waiver, (2) abrogation under § 5, 14th Am, (3) suits for injunctive relief against state officers.

    4. AISG: 2 grounds; 1 state 1 federal; reversal on federal ground will not change the result

II. What Kind of Constitutional Issue

  1. Separation of Powers – Branches of Government

  1. Judicial (justiciability requirements + final judgment rule)

  2. Executive (foreign and domestic powers and limitations, especially executive privilege)

  3. Legislative (sources of power and limitation)

  1. Federal Legislative Powers

    1. Sources of power

    1. Commerce Clause: Congress may regulate the channels and instrumentalities of interstate commerce. And, may regulate economic activity that has a substantial effect on interstate commerce.

    2. Taxing & Spending: Congress may tax and spend for the general welfare

    3. Taking Property

    1. Necessary and Proper Clause: Congress may use any means not prohibited by the constitution to carry out its authority.

    2. 10th Am: All powers not granted to the US, nor prohibited to the states, are reserved to the states. So, Congress cannot compel state regulatory or legislative action. But, Congress can induce state gov. action by putting strings on grants, so long as related to spending program.

  1. Federal Executive Power

    1. War: President has no power to declare war, but may act militarily in actual hostilities against the US w/out a congressional declaration of war under his broad power as Commander-in-Chief to use American troops in foreign affairs. Congress may limit by military appropriations.

    2. Foreign Relations: President has paramount power to represent the US in foreign relations.

      1. Treaties: President has power to enter treaties w/ the consent of 2/3 of the senate

      2. Executive Agreement: President has power to sign an executive agreement with the head of a foreign country. No Senate consent required.

    3. Domestic affairs: appointment and removal power

  2. State Interference w/ Federal System

    1. Preemption: Under the supremacy clause, a federal law is the supreme law of the land, and thus may preempt or supersede state law. (express or implied

    2. Dormant Commerce Clause: principal that state and local laws are unconstitutional if they place an undue burden on interstate commerce.

      1. Discrimination against out-of-staters → presumed undue burden on interstate commerce, unless it is necessary to achieve an important government purpose

        1. Exceptions: (1) congressional approval, (2) market participant.

      2. Absent discrimination → if the gov is burdening interstate commerce → balance the benefit to the state against ht e burden on interstate commerce.

    3. Privileges & Immunities Clauses, art. IV: no state may deny to citizens on another state the privileges and immunities of its own citizens. Violated where state regulation discriminates against individuals with regard to important economic activities or civil liberties unless it is necessary to achieve an important government interest.

III. Individual Rights

  1. State Action – the Constitution only applies if there is action by a state or local gov officer or private individual whose behavior meets the requirements for state action. E.g. individual or entity perform exclusive public function or has significant state involvement in their activities.

  2. Speech (1st Am)

  1. Prior Restraint: (1) gravity of harm justifies restraint; and (2) necessary to prevent harm

  2. Vagueness & Overbreadth: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

  3. Symbolic speech is protected (e.g. flag burning, cross burning (unless a threat), expenditures)

  4. Unprotected speech

    1. Incitement of illegal activity if substantial likelihood of imminent illegal activity

    2. Obscenity if (1) appeals to prurient interest, (2) patently offensive under the law, (3) taken as a whole, lacks serious redeeming, artistic, literary, political or scientific value.

    3. Commercial speechthat inherently risks deception or ads for illegal activity

  5. Places Available for Speech

    1. Public Forums (e.g. sidewalks parks): regulations must be content and viewpoint neutral; may regulate the time, place and manner of speech to serve important interest. Must leave open adequate alternative places for communication.

    2. Limited Public Forums (non-public forums gov. opens to speech): same as above

    3. Non-Public Forums (military bases, airports, schools): gov may regulate so long the regulation is reasonable and viewpoint neutral

  6. Freedom of Association: laws that prohibit or punish membership in a group must meet strict scrutiny. Must prove that the person (1) actively affiliated, (2) knowing of its illegal activities, (3) with the specific intent to further those activities.

  1. Takings (5th Am)

    1. Taking must be for public use

    2. Taking requiring just compensation v. a regulation under police power not requiring just compensation

    3. Just compensation? Usually fair market value.

  2. Religion

    1. Establishment Clause – the test: (1) law must have a secular purpose, (2) neither advances nor inhibits religion, (3) no excessive entanglement w/ religion.

    2. Free exercise clause: can’t be used to challenge a neutral law of general applicability

  3. Retroactive Legislation

    1. Impairment of Contract: no state shall impair the obligation of contracts.

      1. Interference w/ private Ks → intermediate scrutiny; gov Ks → strict scrutiny.

    2. Retroactive civil liability need only meet rational basis review

  4. Equal Protection (14th Am) (applies to the fed gov through the due process clause of the 5th Am)

    1. Levels of Scrutiny

      1. Strict – compelling state interest and means necessary to achieve state interest

      2. Intermediate – important state interest and means substantially related

      3. Rational basis – legitimate state interest and means rationally related

    2. Fundamental rights: 1st Am, travel, voting → strict scrutiny

    3. Classification (on its face, or if facially neutral → discriminatory impact and intent)

      1. Suspect – race and alienage → strict scrutiny

      2. Quasi suspect – gender and illegitimacy → intermediate scrutiny

      3. Other classes – wealth, age, disability, sexual orientation → rational basis

  5. Procedural Due Process (14th Am)

    1. Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or statute), or property (an entitlement to a continued receipt of a benefit).

    2. What process is due? Balance: (1) importance of interest to the individual, (2) ability of additional procedures to increase the accuracy of the fact finding; and (3) gov. interest

  6. Substantive due process (14th Am) – does the gov have an adequate reason to take away a persons life, liberty or property → generally must meet strict scrutiny.

    1. Economic liberties → rational basis test

    2. Taking → public purpose + just compensation

    3. Abortion → can’t place an undue burden on the ability to obtain an abortion 

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