CON LAW OUTLINE

1. Requirement for Cases & Controversies

a. STANDING – (Proper Party?) – Plaintiff has suffered a (1) concrete injury

in fact, (2) caused by the defendant that is (3) redressible by the court.
i. Concrete Injury – P must allege and prove that he has personally
been injured or imminently will be injured.
1. P may only assert injuries that they personally have suffered
2. Need NOT be an economic injury
3. P seeking injunctive or declaratory relief must show a likelihood
of future harm
4. MBE Tip: If asked to determine the best standing identify
personal injury. If more than one, identify personal injury with
economic loss ($)
ii. Causation – Must be a causal connection between the injury and the
conduct.
1. P must allege and prove that that the D caused the injury.
iii. Redressibility – P must allege and prove that a favorable court ruling
is likely to remedy the harm suffered. NO ADVISORY OPINIONS!
1. Note – Often the flip side of causation
2. Courts will NOT determine the constitutionality of a statute if it
has never been enforced and there is no real threat that it ever
will be.
iv. Third Party Standing – P can only sue to protect his own rights, NOT
those of 3rd parties.
1. Exceptions – Must meet the 3 above elements AND:
a. Special or Close Relationship between P and injured
party (Dr. – Patient)
b. Injured party is unlikely to be able to assert his own
rights

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 i. Ex. law criminalizing distribution of contraceptives to
unmarried persons. Doctor allowed to raise rights of
unmarried persons.
c. An Organization may sue for its members, if: (aka
association standing)
i. Members would have standing to sue in their own
right
ii. Interests are related to the organizations purpose
1. i.e. Sierra Club can bring an environmental
claim.
iii. Individual member participation is NOT required
(i.e. no individual damages requested - injunction)
v. No generalized grievances – P must NOT be suing solely as a citizen
or taxpayer interested in having the government follow the law.
1. Exception: taxpayers have standing to challenge government
expenditures as pursuant to federal statutes as violating the
Establishment Clause (i.e. Federal aid to religious schools)
a. NOTE – For a taxpayer to have standing under this
exception, Congress’s spending power must be involved.
2. Exception: P has standing to enforce a federal statute if she is
within the “zone of interests” congress meant to protect.

b. RIPENESS – (Avoiding Pre-mature litigation) – May the court grant pre-

enforcement review of a statute or regulation: (2 part test)
i. Hardship that will be suffered without pre-enforcement review
ii. Fitness of the issues and the record for judicial review (does federal
court have everything it needs to decide the question)
1. MBE Tip: request for declaratory judgment is a ripeness
question
2. Ex. challenging statute before signed into law, or challenging a
law after enactment but before it is applied to plaintiff

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 c. MOOTNESS – A live controversy must exist at ALL stages of litigation. If
the matter has already been resolved, the case will be dismissed as moot.
i. Exceptions
1. Capable of repetition but evading review (Roe v. Wade-
pregnancy)
2. Voluntary cessation – D halts offending practice but is free to
resume at any time
3. Class action suits – As long as one member of the class has
ongoing injury
ii. Ex. Parties die, events occur or lapse, change in law

d. POLITICAL QUESTION DOCTRINE – Federal Courts will NOT adjudicate

political questions that have constitutionally committed to another
branch or inherently incapable of judicial resolution.
i. "Republican form of government clause"
ii. Foreign Policy – Challenges of the President's conduct of foreign
policy (i.e. the war is illegal)
1. Including presidents ability to rescind treaties, even though
Senate must ratify
iii. Impeachment or Removal – Challenges to impeachment or removal
process
1. i.e. whether persons elected meet age, residency or voting
requirements.
iv. Partisan Gerrymandering – Challenges to Partisan Gerrymandering
1. Drawing Voting district lines to maximize votes for republicans /
democrats
2. Can still bring a case for anything other than partisan purposes
(Race)

2. SUPREME COURT REVIEW (Generally MBE)

a. Original Jurisdiction – Supreme Court has original and exclusive
jurisdiction for suits between state governments, cases affecting
ambassadors or public ministers.
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 b. Writ of Certiorari
i. Supreme Court has discretion to grant Writs of Certiorari.
1. ALL cases from State Courts and the U.S. Court of Appeals to
the Supreme Court are by Writ of Certiorari
ii. Supreme Court MUST hear cases that come to it by appeal from
decision of a three-judge federal district courts (appeals skip
appellate review and goes to Sup. Ct.)

c. Final Judgment Rule – Only hears cases after final judgment from the
highest state court, a US Court of Appeals, or a three-judge federal district
court. (Must be a “case or controversy.”)
i. In other words, generally NO interlocutory review

d. State Law Grounds – The Supreme Court will hear State Cases regarding the
constitutionality of a federal statute, or whether a State Statute violates
a federal law.
i. The Supreme Court will NOT hear the case if reversal of the federal
law ground will NOT change the result because of a companion state
law ground. (Can’t overrule state law decisions)
ii. MBE: Residents file injunction under state and federal environmental
law. The State Supreme Court holds both violate, the Supreme Court
cannot review, because reversal of fed law would not change the
outcome.

3. ELEVENTH AMENDMENT (Sovereign Immunity)

a. Rule – Prevents Federal AND State courts from hearing suits involving
citizens suing their own state or another state government. (look for an
individual against a state)
b. Exceptions
i. Waiver is permitted, but MUST be express (consent)
ii. Section 5 of the 14th Amendment (i.e. Title VII)
iii. Plaintiff is the Federal Government suing a state
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 iv. Bankruptcy proceedings
c. Suits against state officials are ALLOWED for:
i. Injunctive relief (Even if it will require prospective payment from the
state)
ii. Money damages to be paid by them personally
iii. May NOT be sued if the state treasury will be paying retroactive
damages

4. ABSTENTION
a. Federal courts may NOT enjoin pending State Court proceedings except
in cases of proven harassment OR prosecutions taken in bad faith.

b. Federal courts will temporarily abstain from resolving a constitutional

claim when the disposition rest on an unsettled question of State Law.

5. CONGRESS' Authority to Act (aka Federal Legislative Power)

a. Power must be based on an Express or Implied power
i. NO General Federal police power
ii. Exceptions: MILD – Military Bases, Indian Reservations, Federal
Lands, District of Columbia

b. Necessary and Proper Clause – Congress has the power to make ALL laws
necessary and proper (appropriate) for executing ANY power granted to
ANY branch of the federal government.
i. The necessary and proper clause standing alone cannot support
federal law. It must work in conjunction with another federal power.

c. Taxing and Spending Power – Congress may tax and spend for the
general welfare
i. Taxing – Must raise some revenue
ii. Spending – Spending may be for ANY public purpose.
iii. Limited – Although the taxing and spending powers are broad, they
are sill limited by all other constitutional provisions.
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 iv. MBE: If the answer states general welfare, then must be tax and
spending or police power

d. The Commerce Clause– Congress may regulate the:

i. Channels of interstate commerce;
1. i.e. highways, waterways, internet
ii. Instrumentalities of interstate commerce and Person or Things in
interstate commerce
1. ANYTHING crossing state lines – Trucks, planes, trains, phones,
internet, stocks, insurance, radio signals, cattle, people.
iii. Economic Activities that have a Substantial Effect on interstate
commerce
1. Intrastate Activity: If congress attempts to regulate intrastate
activity the court will uphold the regulation if:
a. It involves economic or commercial activity. (i.e.
growing wheat or medical marijuana), AND
b. Congress can conceive a rational basis that it has a
cumulative effect on interstate commerce.
2. Non-Economic Activity – Congress can NOT regulate unless
Congress can factually show that it has a Substantial Economic
Effect on interstate commerce.
a. i.e. possessing a gun in a school zone, or gender motivated
violence

e. War and Treaty Powers – Congress has the power to declare war, raise and
support armies, and provide for and maintain an army.
i. Remedy the Effects – Economic Regulations during war and in the post
war period to remedy the affects of war have been upheld.

f. Power to Coin Money – Congress has the power to coin money and fix
weights and measures.
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g. Power Over Citizenship – Congress may establish uniform rules of
naturalization. This gives congress plenary powers over aliens.

h. Fourteenth Amendment, Section 5 powers

i. Congress may NOT create new rights or expand the scope of
rights
ii. May act only to prevent or remedy violations of rights recognized by
the courts and such laws must be proportionate and congruent to
remedy the violations

i. Tenth Amendment Limit on Congress Power – States that all powers

NOT granted to the United States, nor prohibited to the states, are
reserved to the states or the people.
i. Congress cannot COMMANDEER state regulatory or legislative
action
1. i.e. Cannot require States to legislate per federal standards, or
require them to enforce federal law (against 3rd parties)
1. Note: Can induce action by attaching strings to grants, so long
as the conditions are express and relate to the purpose of the
spending program
ii. Congress MAY prohibit harmful commercial activity by state
governments.
1. Ex: Prevent state from releasing or selling private
information

j. Delegation of Powers
i. Legislative powers MAY be delegated so long as “intelligible
standards” are set.
1. Generally Congress may Delegate ANY Legislative Power (no
limit exists on Congress’ ability to delegate legislative power)
2. Exceptions – Powers uniquely confined in Congress (declare war,
impeachment)
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 3. MBE Tip: Fed law is unconstitutional because it is in excess of
delegation of legislative powers is usually wrong.
ii. Legislative Vetos and Line-item Vetos are ALWAYS Unconstitutional
1. Congress MUST use:
a. Bicameralism – passage by both the House and Senate,
AND
b. Presentment – Presenting the bill to the president for his
signature or veto
2. President must sign or veto the bill in its entirety.
iii. Congress may NOT delegate executive powers to itself or its officers

6. Federal EXECUTIVE Power

a. FOREIGN Policy
i. Foreign Relations – President has paramount power to represent the
U.S. in day to day foreign relations.
ii. Treaties – Agreements between the U.S. and foreign country that are
negotiated by President and are effective when ratified by the
Senate
1. Power – President has the power to ENTER into treaties with the
consent of two thirds of the Senate.
2. Prevail over conflicting State Laws
3. Conflict between Treaty and Federal Law, the LAST one
adopted controls
4. Conflict between Treaty and Constitution, treaty is INVALID
iii. Executive agreements
1. Agreement between U.S. and foreign country that is
EFFECTIVE when signed by President and head of foreign
country
a. i.e. NO Senate approval required
2. Can be used for ANY purpose that treaties can be used for
3. Prevail over conflicting State Laws,
4. NEVER prevail over conflicting Federal law or the
Constitution
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 iv. Commander in Chief
1. President has broad powers as Commander-in-Chief to use
American troops in foreign countries
2. MBE Tip: Lawsuit to challenge use of troops – dismissed as
political question, otherwise, President wins.

b. DOMESTIC Affairs
i. Appointment Power
1. President appoints Ambassadors, Federal Judges, and Official
Officers of the U.S. (Senate approves)
2. Congress may vest the appointment of inferior officers in the
President, heads of departments, or in the lower federal courts
a. Inferior Officer – those that can be fired by an officer of the
U.S. (i.e. U.S. attorneys can be fired by the Attorney
General)
3. Congress may NOT give itself or its officers the appointment
power
a. MBE Tip: Congress created new agency – gives
appointment rights to President for some, to Congress for
some, and to others - WRONG! (President must appoint)
ii. Removal Power
1. President – unless limited by statute, the President may fire
(remove) any executive branch officer
a. For congress to limit removal, it must be an office where
independence from the President is desirable AND
b. Congress cannot prohibit removal, it can limit removal to
where there is good cause
2. Congress may provide statutory limitations on the president’s
power to remove
a. Note – Can’t prohibit removal, but may limit removal
to good cause.
b. Note – Congress can remove executive officers through
impeachment.
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iii. Veto Power – President has the power to veto acts of congress.
1. Override – If the president disapproves (vetoes) an act of
congress, the act may still become law if the veto is overridden
by a two-thirds vote of EACH house.
2. Pocket Veto – The president has 10 days to exercise the veto
power. If he fails to act then the bill becomes law if congress is
in session, but is automatically vetoed if Congress is NOT is
session
3. Line Item Veto – ALWAYS unconstitutional.
iv. Impeachment and Removal – The president, vice president, federal
judges and officers of the U.S. can be impeached from the office for
treason, bribery, or for high crimes and misdemeanors.
1. Impeachment does NOT remove person from office
2. A majority vote of the House of Representatives is necessary
to invoke the charges of impeachment. (*Impeachment does not
remove)
3. 2/3 vote from Senate is necessary to convict and remove
v. Executive Privilege / Immunity
1. Privilege – President has executive privilege to keep certain
communications secret. (National security secrets are given
great deference by the courts)
a. Exception – In criminal proceedings, presidential
communication will be available to the prosecution.
2. Immunity – President has Immunity from Civil Suits for
money damages involving actions that occurred while in
office.
a. NO immunity for actions that occurred prior to taking
office
vi. Power to Pardon those accused or convicted of FEDERAL crimes
1. Exceptions:
a. Impeachment – cannot be pardoned for the offenses that
led to impeachment
2. Civil Contempt – pardon power doesn’t apply
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 3. MBE Tip: Federal ONLY! Criminal Liability ONLY!

7. STATE POWER (FEDRALISM)

a. PREEMPTION (Supremacy Clause of Article VI) – The Supremacy Clause

of Article VI provides that the Constitution, and Laws made pursuant
to it, are the Supreme Law of the land.
i. Express preemption – Federal law says the states may NOT regulate.
1. MBE Tip: States may set stricter environmental standards
than EPA, unless Congress prohibits
ii. Implied preemption
1. Conflict
a. Physical – If you cannot comply with both federal and State
Laws, then federal law preempts
b. Obstacle – If the State law is an obstacle to the Federal
Objective, then federal law preempts
2. Field – Federal interest is so dominant or federal regulation is
so pervasive that it will preclude enforcement of state laws on
the same subject.
a. Look for comprehensiveness or the federal scheme and
creation of an agency to administer the laws. (Ex:
Immigration laws)
b. i.e. congress has left NO room for the states to act
3. States may not tax or regulate federal government activity
(inter-governmental immunity)
a. Unconstitutional to pay a state tax to federal treasury (i.e.
a store owned and operated by federal government, state
cannot tax)
b. Federal government never has to comply with state
pollution controls)

b. Dormant Commerce Clause & Article 4 Privileges and Immunities

Clause
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i. Privileges OR Immunities Clause of the 14th Amendment – No
State may deny their citizens the privileges or immunities of national
citizenship.
1. Interpreted as the right to travel, and the right to vote for
federal officers.
2. Look for durational residency requirements.
3. MBE Tip: Always wrong answer unless it involves the right to
travel

ii. Dormant Commerce Clause – STATE and LOCAL Laws are

unconstitutional if they place Undue Burden on Interstate
Commerce, even though Congress has not acted.
1. MBE – The dormant commerce clause is also called Negative
implications of the commerce clause.
2. TEST – Look to whether the law is:
a. Facially Discriminatory – Discriminates against
interstate commerce to protect local economic interests.
(i.e. Tax Ohio $15 all other states $40)
i. Invalid unless it:
1. Furthers an Important Noneconomic State
interest AND
a. Examples – health, safety, welfare
2. No Reasonable Nondiscriminatory
alternative
ii. Market Participant Exception – A state or local
government may prefer its own citizens when
acting as a market participant.
1. Ex. Buying and selling, giving state subsidies.
hiring labor or discounted tuition in State
universities.
iii. Traditional Governmental Function – The SC is more
lenient when the law favors a traditional
governmental function. (waste disposal)
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 iv. Congressional approval – If congress acts to allow
the burden then it is no longer dormant.
b. Non-Discriminatory Laws – i.e. Discriminate in purpose
or effect
i. Balancing the state's interest against the burden
on interstate commerce, AND
ii. Consider whether other alternatives could be less
burdensome

iii. Privileges AND Immunities Clause of Article IV – Prohibits

discrimination by a State against Non-Residents. (3 Part test)
1. Residents – The law MUST discriminate against Out-of-State
Residents
a. Corporations and aliens cannot use this privilege (MAY
use Dormant Commerce Clause or equal protection clause)
2. Fundamental Rights – Only Civil Liberties or Important
Economic Activities are protected.
a. I.e. ability to earn a living, access to courts, emergency
services, purchase property, medical care
b. NOT Elk hunting or recreational activities.
3. Substantial Justification – If the law discriminates against out-
of-state residents with regard to a fundamental right, it
violates the privileges and immunities clause UNLESS:
a. The State has a Substantial Justification for the
discrimination
i. i.e. the non residents either cause or are part of the
problem.
b. NO Less Restrictive Means to solve the problem.

c. TAXATION
i. Federal Taxation on State Governments

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 1. Congress may subject states to a regulation or taxation if the law
or tax applies to both the public and private sector. (i.e.
minimum wage laws)
2. Federal taxes applying ONLY to states must comply with the 10th
amendment.
a. Note – May indirectly regulate through the spending
power.
ii. STATES may NOT tax or regulate federal government activity
1. CANNOT pay state tax out of federal treasury
2. Exception – Nondiscriminatory, indirect taxes are permissible
(i.e. States taxing federal employees)
3. MBE Tip: Federal government NEVER has to comply with state
environmental standards
4. MBE Tip: A mom & pop store on federal land. States can Tax
because a private person is paying the tax, not the federal
government. (Can’t tax a gov owned store)
iii. State Taxation (not usually on Bar)
1. Must Not Discriminate – If States use their tax system to help
in-state businesses it will violate the commerce clause. (Tax
credits for in-state businesses)
2. A Non-Discriminatory tax will be valid if: (i.e. Not unduly
burdensome)
a. Substantial Nexus – May only tax activities that have a
substantial nexus to the state
b. Fairly Apportioned – State taxation must be fairly
apportioned (Burden is on taxpayer to prove unfair
apportionment)
c. Fair Relationship – Fairly related to the state services or
benefits provided

d. FULL FAITH and CREDIT

i. Courts in one state must give full faith and credit to judgments in
another state if:
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 1. Court that rendered judgment had jurisdiction over the parties
and subject matter
2. Judgment was on the merits
3. Judgment is final
a. Ex. Judgment in California MUST be enforced in ANY other
state so long as the judgment has jurisdiction, on the
merits and is final.

e. CONTRACTS CLAUSE – No STATE shall impair the obligations of

contracts
i. Applies ONLY to State or Local interference with existing contracts
1. NEVER applies to Federal Government
a. Note – flagrant contract impairment would violate the due
process clause
2. NEVER applies to Future contracting rights
ii. Interference with PRIVATE contracts must meet "intermediate
scrutiny" (Modified)
1. Substantially Impairment of a party's rights under an
existing contract
2. Important and Legitimate Public Interest
3. Reasonable and Narrowly tailored means of promoting that
interest
iii. Interference with PUBLIC (government) contracts must meet strict
scrutiny
1. Necessary to achieve
2. Compelling government purpose
3. No less Restrictive Alternative (Means must be necessary)

8. PROTECTIONS of CIVIL LIBERTIES

a. STATE ACTION – Constitution only applies to government action, NOT
private conduct:
i. EXCEPTIONS (When the constitution applies to private conduct)

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1. Statutes – Congress, by statute, MAY apply constitutional
norms to private conduct
a. 13th Amendment can be used to prohibit private race
discrimination
i. MBE Tip: Discrimination never violates the 13th
Amendment, only slavery! However, discrimination
can violate laws created under the 13th
Amendment, Section 2.
b. NOT 15th Amendment – prevents race and gender
discrimination in voting.
i. Only where some state action is involved
c. Commerce Clause can be used to apply constitutional
norms to private conduct. (i.e. Civil Rights Act enacted
under the commerce clause)
d. NOT the 14th Amendment, Section 5 – Only used only to
regulate state and local governments (Not private
behavior)
2. Public Function – If a private entity is performing a task
Traditionally and Exclusively performed by the government.
c. Ex. Election primaries, company town, maybe prisons.
d. NOT a shopping center, education facility or public utility
3. Entanglement – government affirmatively Authorizes,
Encourages, or Facilitates unconstitutional activity. (Mere
acquiescence is not enough)
a. State Action When
i. Courts enforce racially restrictive covenants
ii. Administering a private discriminatory trust
iii. State leases premises to a discriminatory lessee
and the State derives a benefit from the
discrimination (Symbiotic Relationship)
iv. State provides textbooks to a school that racially
discriminated

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 v. Discriminating private entity that regulates
interscholastic sports within a state
b. NO State Action When
i. Granting a license and providing services to a
private club
ii. Granting a monopoly to a Utility Company
iii. Heavily regulating an industry
iv. Private school that is over 99% funded by
government fires a teacher because of her speech
v. NCAA (private entity that operates all over the
country) orders the suspension of a basketball coach
at a state university
vi. Private club with a liquor license from the state
racially discriminates

b. BILL of RIGHTS – Limits Federal power

i. Applies directly ONLY to the federal government
ii. ALL rights have been applied to state and local government through
its incorporation into the due process clause of the Fourteenth
Amendment
1. Except (Rights that do NOT apply to state and local
governments)
a. Second Amendment right to bear arms - Not just for
militia but also for private use for self defense.
b. Third Amendment right to not to quarter a soldier
c. Fifth Amendment right to grand jury indictment in
criminal cases
d. Seventh Amendment right to jury trial in CIVIL CASES
e. Eighth Amendment right against excessive fines

c. EX POST FACTO clause does NOT apply in Civil Cases.

i. An ex post facto law is a law that:

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 1. Criminally punishes conduct that was lawful when it was
committed
2. Increases punishment for a crime AFTER it was committed,
OR
3. Reduces the Evidence required to convict after the crime was
committed.
ii. Retroactive civil liability only need meet a rational basis test under
Due Process
iii. MBE Tip: Usually a wrong answer with respect to the contracts
clause.

d. BILL of ATTAINDER – a law that directs the punishment of a specific

person(s)without a trial
i. MBE Tip: Usually appears in a wrong answer for a contract clause
question

e. TAKINGS CLAUSE (5th Amendment) – The government may take private

property for public use if it provides just compensation (Applicable to
the states via 14th Amendment)
i. Taking – Critical issue is whether there has been a taking or merely a
regulation
1. Possessory taking: Government confiscation or physical
occupation of property is a taking (Gov placing a cable box on
your property) (Exception – Emergencies)
2. Regulatory taking:
a. Denial of ALL economic Value is a taking
i. i.e. prohibition of any building on the land
ii. Nuisance control regulations are NOT takings
iii. Temporarily denying an owner use of property is
NOT a taking so long as the government action is
reasonable

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 iv. A property owner may bring a takings challenge to
regulations that existed at the time the property
was acquired
v. Government conditions on development of property
must be justified by a benefit that is roughly
proportionate to the burden imposed, otherwise it
is a taking.
b. Decreasing Economic Value does NOT amount to a
taking
i. Investment backed expectations test: (Balance)
1. The social goals of the regulation,
2. The diminution in value of the property, and
3. Owner’s reasonable expectations for the use
of the property
ii. No right to the highest and best use of your property
3. Public Use – Broadly defined by the Supreme Court. Rationally
related to a legitimate public purpose i.e. health, safety,
welfare, economic, aesthetic (reasonable belief that the taking is
a benefit for the public)
ii. Just Compensation – Measured in terms of loss to owner based on FM
(gain to taker is irrelevant)
4. Compensate owner or terminate regulation and pay owner for
damages that occurred while it was in effect

f. LEVELS of SCRUTINY
i. Rational Basis – (1) Rationally related to a (2) Legitimate
government purpose
1. Deferential to government
2. BOP – Challenger (plaintiff) must prove the law had NO
conceivable legitimate purpose or law is not rationally
related
3. *ALL non-suspect classifications – Age, disability, wealth, etc.

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 ii. Intermediate Scrutiny – (1) Substantially related to (1) Important
government purpose (3) Means Narrowly Tailored (But NOT the
least restrictive alternative)
1. BOP = Government
2. *Gender and Non Marital Children

iii. Strict Scrutiny – (1) Necessary to achieve a (2) Compelling

government purpose (3) No less Restrictive Alternative (Means
must be necessary)
1. Will look ONLY at the government’s actual objective (must be
compelling)
2. BOP = Government
3. *Race, national origin, alienage, interstate travel, privacy, voting,
1st Amendment

g. DUE PROCESS
i. PROCEDURAL Due Process – Refers to the procedures the
government must follow if deprives a person of life, liberty, or
property. (2 Part Test – Deprivation / Procedures)
1. Has there been a DEPRIVATION of life, liberty or property?
a. Liberty – A deprivation of Liberty occurs if there is the
loss of a significant freedom provided by the
Constitution or a statute.
i. Examples:
1. Prisoners rarely have liberty interests
2. Institutionalize of child by parent requires
screening by neutral fact finder
3. Harm to reputation alone is NOT a
deprivation of liberty
4. Except in an emergency before an adult can be
institutionalized there must notice and a
hearing

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 b. Property – A deprivation of Property occurs if there is
an Entitlement and that entitlement is NOT fulfilled
i. Entitlement – reasonable expectation to continue to
receive a benefit (This is the new test)
1. Attendance at public school, welfare benefits,
government employment, personal belongings,
and realty.
c. Intentional Deprivation – Government negligence is
not sufficient for a deprivation of due process.
Generally there must be intentional government
action or at least reckless action for liability to exist.
i. Emergency – However, in emergency situations,
the government is liable under due process only if its
conduct "shocks the conscience." (i.e. high speed
chase not)
ii. Waiver – Individuals may expressly waive due
process.

d. Government Must Create the Danger – Generally the

government’s failure to protect people from privately
inflicted harm does not violate.
i. Government is only liable if it deprives an interest or
if it creates danger or if in government custody

2. If there IS a Deprivation, What procedures are required?

a. Balancing Test
i. Individuals Interest
ii. Value of Safeguards – The ability of additional
procedures to increase the accuracy of the fact-
finding
iii. Government Interest (Efficiency and saving money)

3. Procedure Requirements:
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a. Prior Notice and Prior Hearing
i. Welfare Benefits terminated
ii. Resident aliens being deported
iii. Before rights to a child are permanently removed
iv. Adult Commitment to Mental Institution
2. Child – Only a screening by a neutral fact
finder is required for a parent to
institutionalize a child
v. Termination of a parent’s custody rights
vi. Real property forfeiture (government seizure)
1. Except in emergency circumstances
2. Government can seize property in an illegal
activity even if it has an innocent owner
b. Prior Notice and a Post Hearing
i. Social Security/Disability benefits terminated
ii. Public Employment (Tenure / Termination)
1. Employee entitled to a pre-termination
response/hearing, but only entitled to full
adversarial hearing after termination
c. Subsequent Notice and a Subsequent Hearing
i. American citizen captured in foreign war and held as
enemy combatant in U.S. (trial, jury, counsel)
ii. Personal Property forfeiture
3. Exception – Government may seize property
from an innocent owner (co-owner) if used in
criminal activity
d. Notice and chance to explain
i. Public education discipline / dismissal – notice of
charges and chance to explain
1. corporate punishment schools – NO due
process required
e. Instructions to the jury and judicial review

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 i. Punitive damage awards – grossly excessive punitive
damages are a violation of due process

h. SUBSTANTIVE Due Process – (5th amendment) – Determines whether the

government has a justified reason for taking away a person’s life, liberty or
property. (Applies to the states via the 14th Amendment)
i. Non-Fundamental Rights – Constitution provides minimal
protection for economic liberties (Non-fundamental rights)
1. Rational basis test is used for laws affecting economic rights
2. Economic Rights – The right to practice a trade or profession
ii. Fundamental Rights – Apply Strict Scrutiny to the following Rights:

1. PRIVACY (Strict Scrutiny)

a. Marry
b. Procreate
c. Custody of One's Children – State may create
irrebuttable presumption that married woman's
husband is biological father
d. Keep the Family Together – Includes extended family,
but must be actually related (cousins, grandma)
e. Control the upbringing of one’s children
ii. Note – NO right to grandparent visitation over
parents objections
f. Purchase and Use Contraceptives
g. Freedom to receive Obscene Reading Material –
(Except child porno)
h. Engage in Private Homosexual Activity
i. Refuse Medical Treatment
i. Competent adults have the right to refuse medical
treatment, even in life-saving situations
ii. State may require clear and convincing evidence that
a person wanted treatment terminated before it is
ended
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 iii. State MAY prevent family members from terminating
treatment for another
iv. NO constitutional right to physician-assisted suicide
j. Abortion (not Strict Scrutiny)
i. Prior to viability (fetus survival outside womb) –
States may NOT prohibit abortions, but may
regulate abortions so long as they do not create an
UNDUE BURDEN on the ability to obtain an
abortion.
ii. NOT and undue burden
2. 24 hr waiting period
3. Performed by licensed physicians
4. Prohibition of "partial birth abortions"
5. Parental notice and consent for unmarried
minors
a. Alternative – Minor can obtain an
abortion by going before a judge who can
approve the abortion by finding it would
be in the minor’s best interest or that she
is mature enough to decide for herself
iii. After Viability – States MAY prohibit unless
necessary to protect the woman's life or health
iv. Note – Government has NO duty to subsidize
abortions or provide abortions in public hospitals
v. Note – Spousal consent and notification laws are
unconstitutional

2. 2nd Amendment – Right to bear arms for protection (no level of

scrutiny identified)

3. TRAVEL (Strict Scrutiny)

a. Laws that prevent people from moving into a state

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 b. Durational residency requirements for receiving
benefits
vi. 1 year residency requirement to get divorced
c. Note – Restrictions on foreign travel need meet only
the rational basis test

4. VOTE (Strict Scrutiny)

a. Laws that DENY some citizens the right to vote
i. Durational residency requirements up to 50 days are
valid
ii. NOT property ownership as a qualification to vote
b. The use of race in drawing election district lines
c. Counting uncounted votes without standards in
presidential elections violates equal protection
d. One-person, One-vote must be met for all state and
local elections
i. Exception – Appointed officials, officials elected at-
large, or special purpose elections (i.e. water
district) do not have to comply with one person one
vote requirement.

5. EDUCATION – NO fundamental right to education (Rational

Basis Test)

2. EQUAL PROTECTION – (5th Amendment) – Determines whether the

government’s different treatment of people is justified. (Applies to the states via
the 14th Amendment)

a. Approach to equal protection questions

i. Did the government have intent to discriminate?
ii. What is the classification?
iii. What level of scrutiny should be applied?
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 iv. Does this law meet the level of scrutiny?

b. INTENT TO DISCRIMINATE – In order to trigger strict / intermediate

scrutiny, you must prove that the government intended to discriminate. If
NO intent can be shown apply Rational Basis. Intent may be shown by:
i. A law that is discriminatory on its face
ii. A discriminatory application of a facially neutral law
1. Ex: discriminatory use peremptory challenges based on race
iii. A discriminatory motive behind the law
1. Note – Showing a discriminatory effect alone is NOT enough.
2. Ex. Height/weight restrictions for police/fire-fighters (Gender)

c. CLASSIFICATIONS
i. Race and National Origin
1. Strict Scrutiny is applied
a. Necessary to achieve
b. Compelling government purpose
c. No less Restrictive Alternative (Means must be
necessary)
2. Proving Racial Classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory
impact AND discriminatory intent
i. i.e. discriminatory use of peremptory challenges
based on race denies equal protection
3. Racial discrimination Benefiting minorities (Strict scrutiny is
still applied)
a. Government has a compelling interest in remedying
past discrimination
i. Numerical set-asides require clear proof of past
discrimination

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 ii. Past discrimination must have been persistent and
readily identifiable. (i.e. NOT general societal
discrimination)
b. Race can be considered in drawing up new voting
districts but cannot be the predominant factor.
c. Educational institutions may use race as one factor in
admissions decisions to help minorities. (Colleges and
Universities)
i. No set asides or points added to admissions
applications for minorities
d. Public school systems may NOT use race as a factor in
assigning students to school unless strict scrutiny is
met

ii. Alienage Classifications (Non-Citizens) Look to who is

discriminating against Aliens?
1. State and Local Government – Apply Strict Scrutiny
a. Ex. Requiring citizenship status for welfare benefits, civil
service jobs, to become a lawyer or a notary.
b. EXCEPTIONS
i. Self Government and Democratic Process – apply
rational basis.
1. i.e. for voting, jury duty, and employment as
police officer, teacher, probation officer
ii. Undocumented Alien Children – Apply intermediate
scrutiny
1. Ex: state making undocumented aliens pay for
public school
2. Federal Government – (Congress) – Apply a rational basis
test
a. Rational basis because of Congress has plenary power to
regulate immigration.

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iii. Gender Classifications
1. Intermediate scrutiny is used
a. Substantially related to an
b. Important government purpose
c. Exceedingly Persuasive justification
2. Proving Gender classification
a. Classification exists on the face of the law
b. If the law is facially neutral, must show discriminatory
impact AND discriminatory intent
i. i.e. discriminatory use of peremptory challenges
based on gender denies equal protection
3. Racial classifications Benefiting gender
a. Intentional discrimination benefiting Women / Men
triggers strict scrutiny
i. Laws Found to be Invalid
1. Woman can be awarded alimony, but men can
not
2. State supported all male / all female school
3. Discriminatory minimum drinking age
4. Classifications benefiting women based on role
stereotypes
ii. Laws Found to be Valid
1. Discriminatory statutory rape laws
2. All male draft
3. Classifications designed to remedy past
discrimination and differences in opportunity
b. Note – Government has a important government interest
in remedy past discrimination and differences in
opportunity

iv. Homosexual Marriages

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 1. The federal government must provide the same benefits to same
sex married couples as to opposite sex couples if the state in
which they live recognizes such marriages.
a. To do otherwise violates the equal protection clause.
2. States are NOT required to allow homosexuals to marry.

v. Non-Marital Children (Parents aren’t Married)

1. Intermediate scrutiny is used
a. Laws that deny a benefit to ALL non-marital children,
BUT grant it to ALL marital children are
unconstitutional

vi. Rational basis review is used for all other types of discrimination.
1. Age – (i.e. mandatory retirement age – Rational basis &
Government wins)
2. Disability
3. Wealth – (Discrimination against the poor)
4. Economic Regulations (Requiring to work for a certain number
of years)
5. Sexual orientation (Only case so far used rational basis)
6. Religion (Strict Scrutiny has been used under religion clauses
but has not been considered under equal protection)

3. FIRST AMENDMENT
a. FREE SPEECH
i. Content-based v. Content-neutral restrictions
1. Content Based restrictions on speech generally must meet strict
scrutiny
a. Necessary to further
b. Compelling Government purpose unrelated to
suppression
c. Means Narrowly Tailored
d. Two types:
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 i. Subject matter (law depends on the topic of the
message)
ii. Viewpoint (depends on the ideology of the message)
1. Ex: pro-war v. anti-war; pro-government v.
anti-government
2. Content Neutral laws burdening speech generally must meet
intermediate scrutiny
a. Substantially related to an
b. Important government purpose unrelated to suppression
c. Burden NO more speech than necessary
i. Ex: No parades or demonstrations in the park

ii. Prior Restraints – Prevent speech from ever entering the

marketplace of ideas
1. Injunctions – must be special societal harm that will result
a. Standards narrowly drawn (reasonable and definite)
b. Promptly sought
c. Prompt and final determination of validity of restraint
2. Court Orders – Court orders suppressing speech must meet
strict scrutiny
a. Procedurally proper orders must be complied with until
vacated or overturned
b. Person who violates is barred from later challenging it
c. MBE Tip: Gag orders on press to prevent prejudicial
pretrial press are always unconstitutional
d. Ex. Prohibited from publishing war and troop movement
during the war.
3. Licenses – Government can require a license for speech only if
there is an important reason for licensing and clear criteria
that leaves almost NO discretion to the licensing authority.
a. Must contain procedural safeguards such as prompt
determination of requests for licenses and judicial review

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iii. Vague, Overbroad, Unfettered Discretion (Void on its face)
1. Vague – law is void on its face if a reasonable person cannot
tell what speech is prohibited or allowed (“reasonable”,
“annoying”, “lewd”)
2. Overbroad – law is void on its face if it regulates substantially
more speech than the constitution allows to be regulated.
(“All”, “Any” speech)
a. Note – Fighting words are not protected by the first
amendment but are always found to be vague and
overbroad
3. Unfettered Discretion – law is void on its face if it gives officials
unfettered discretion in applying the law. (Need definite
standards)
a. Ex. City officials cannot have discretion to set permit
fees

iv. Anonymous Speech / Right NOT to Speak IS protected

1. Circulating an anonymous leaflet is constitutional. (Can speak
anonymously)
2. The freedom to speak also includes the freedom NOT to speak
(“live free or die”)
a. Exception – The government may TAX you and use the
revenue to support a message with which you disagree.
(Got Beef? Advertising)
i. Note – Cannot be compelled to subsidize private
messages
1. i.e. Lawyers and teachers must pay union dues,
but do NOT have to pay for contributions to a
political campaign
ii. Note – CAN be compelled to pay university activity
fee that is used to support political speech by
student groups.

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 v. Symbolic Speech (Intermediate Scrutiny)
1. Government can regulate conduct that communicates if:
a. Substantially related to an
b. Important government purpose unrelated to suppression
c. Burden NO more speech than necessary to achieve the
government purpose
2. Examples:
a. Flag burning IS protected
b. Burning cross IS protected UNLESS done to intimidate
or threaten
c. Draft card burning is NOT (Facilitate a smooth draft)
d. Nude dancing is NOT
e. Election Campaigns
i. Contribution limits ARE constitutional
ii. Expenditure limits are NOT

vi. Speech by the government CANNOT be challenged as violating the

First Amendment

b. UNPROTECTED or LESS PROTECTED Speech

i. Incitement of Illegal Activity – Government MAY punish speech if
there is a:
1. Directed to Inciting of Imminent Lawless Action, and
2. Actions are Likely to produce imminent lawless action
ii. Fighting Words – Abusive words that are inherently likely to provoke
an immediate violent reaction in a ordinary person
iii. True Threats – Threat combined with an intent to intimidate
(Burning cross in Black persons front yard)
iv. Obscenity (Sexually-oriented speech)
1. The Test
a. Whether the average person, applying Contemporary
Community Standards would find that the work taken as
a whole, must appeal to the Prurient Interest in Sex
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 i. Prurient – shameful or morbid interest in sex
b. Whether the work depicts or describes in a Patently
Offensive way, sexual conduct as specifically defined by
the applicable State Law
i. The law must specifically list what material is
patently offensive
ii. Based on a Contemporary Community Standard
c. Taken as a whole, the material must lacks serious
literary, artistic, political or scientific value
i. Based on a National standard (LAPS)
2. Obscenity Notes
a. Zoning Ordinances – Government may use zoning
ordinances to regulate the location of adult bookstores
and movie theaters (substantial gov. interest)
b. Child Pornography – Child pornography may be
completely banned, even if it is NOT obscene
i. Governments interest is in protecting children, so
children must be used in the material (Not
computer generated images)
c. Private Possession – Government may NOT punish private
possession of obscene materials, but MAY punish private
possession of child pornography
d. Seize Assets – Government may seize the assets of
business convicted of violating obscenity laws
e. Profane and Indecent speech – is generally protected. (i.e.
Cohen – Fuck the Draft)
i. Exceptions (May regulate)
1. Over the broadcast media (free media) –
Policy – They accepted the license with the
conditions
a. Fairness doctrine – May be required to
allow counter-speech. (i.e. to persons
attacked on the air)
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 b. Cable Television – intermediate scrutiny
2. Schools – "Schools are responsible for
teaching civilized discourse"

v. Commercial Speech (4 Part Test)

1. Not false, misleading, or concerns unlawful activity (if it is,
government can regulate it)
a. May prevent professionals from advertising under a trade
name
b. May prohibit an attorney from in-person solicitation of
clients for profit
i. May send written solicitation or solicit for pro-
bono work
c. May NOT prohibit accountants from in-person
solicitation of clients
2. Substantial government interest
a. i.e. conserving energy or protecting kids from cigarette
advertising
3. Regulation directly advances in a material way
a. Ask, will this regulation actually be effective?
4. Reasonable fit – No more extensive than necessary to serve
that interests

vi. Defamation – See Torts outline

vii. Privacy
1. The government may NOT create liability for the truthful
reporting of information that was lawfully obtained from the
government
a. Ex. Reporting rape victims name from a police report
b. However, the government may limit its OWN
dissemination of information to protect privacy (Ex.
Close trials to preserve a higher value)
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 2. Media is NOT liable for broadcasting a tape of an illegally
intercepted call, if:
a. The media did NOT participate in the illegality and
b. It involves a matter of public concern.

viii. NOTE – Speech by government employees on the job in the

performance of their duties is NOT protected by the First
Amendment.

ix. NOTE – ANY other government restrictions based on the content of

speech must meet strict scrutiny

c. Time, Place, and Manner

i. Public forums – government properties that have historically been
open to speech related activities. (streets, sidewalks, public parks)
1. Regulations that are NOT subject matter OR viewpoint
neutral must meet strict scrutiny.
2. Regulations that ARE subject matter AND viewpoint neutral
must meet intermediate scrutiny (Content Neutral)
a. Content neutral regulation
b. That serves an Important government purpose
c. Means Narrowly tailored (NOT the least restrictive
alternative)
d. Leaves Open and Adequate Alternative channels of
communication
i. Ex: In order to have concert in city park, must use
city sound equipment. Bands argued that there was
a least restrictive alternative of setting volume
levels. City won.
ii. Note – Congress has more leeway with funding than
regulations.

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 3. City officials cannot have discretion to set permit fees for public
demonstrations.
ii. Limited Public Forums (designated) – government properties that
the government could close to speech, but chooses to open. (Same
rules apply as to public forums)
1. Ex: Opening schools on evenings and weekends for speech
iii. Non-Public Forums – government properties that the government
constitutionally can and does close to speech.
1. Government MAY regulate speech so long as regulation is
Reasonable and Viewpoint neutral.
2. Examples:
a. School facilities on evenings and weekends
b. Military Bases
c. Area around Prisons and Jails
d. Advertising space on City Buses
e. Sidewalks on Post Office Property
f. Airports – can distribute literature, but not ask for money
iv. Injunctions
1. Content Based – Necessary to achieve a compelling Government
interest
2. Content Neutral – Challenged provisions burden no more
speech than necessary to serve a significant government
interest.
v. Private Property
1. There is no First Amendment right of access to private
property for speech purposes (Includes shopping centers)

4. Freedom of Association
a. Laws that Prohibit or Punish Group Membership must meet Strict
Scrutiny.
i. Must be proven that the person:
1. Actively affiliates with the group
2. Knew of its illegal activities, AND
36
 3. Participated with the specific intent of furthering those
illegal activities
b. Laws that require disclosure of group membership, Look to see if there
is a substantial burden on the right of association? (chill association) If
so, Government must prove Strict Scrutiny
c. Laws that prohibit a group from discriminating are Constitutional
unless they: (Strict Scrutiny)
i. Substantially interfere with an:
1. Intimate association – Small dinner party – person not invited
cannot sue
2. Expressive activity – KKK can exclude blacks; Boy scouts can
exclude gays
d. Political Patronage – government has the ability to demand loyalty of a
party that is currently in office. Test – Appropriate requirement for the
effective performance

5. Freedom of Religion
a. Free Exercise clause
i. Free exercise clause cannot be used to challenge a Neutral law of
General Applicability
1. Ex: Use of peyote by Native Americans in religious ceremony
was prohibited by state law that was neutral to everyone and did
not target that religion. Law was found to be constitutional
2. Strict Scrutiny is applied if the law was motivated to
interfere with the exercise of religion. (Ex. Law prohibiting the
sacrificing of animals)
ii. Government may NOT deny benefits to individuals who quit their
jobs for religious reasons. (Ex: Employee quit over working on
Sunday)

b. Establishment clause – Government may NOT make a law establishing

religion.
i. Test (SEX)
37
 1. There must be a Secular purpose for the law
2. The Primary Effect Neither Advance nor Inhibits religion
a. Ex: No government symbolic endorsement of a
particular religion
b. However, government may be able to display many
religious symbols.
3. There must NOT be EXcessive Government Entanglement
with religion
a. Ex: Government cannot directly pay teacher's salaries in
religious schools
ii. Establishment Clause Notes
1. Government cannot discriminate against religious speech or
religions unless strict scrutiny is met.
2. Government sponsored religious activity in public schools is
unconstitutional
a. i.e. school prayer, moment of silence
b. But Note – Religious students and groups must have the
same access to school facilities as non-religious
groups
3. Government MAY give assistance to religious schools, so long
as it is NOT used for religious instruction. (Ok for school buses)
4. May provide parents vouchers which they MAY use in private
or public schools

38