Constitutional Law Study Guide
Constitutional Law explores the structure and limits of government power and the protection of individual rights under the U.S. Constitution. The course begins with the foundational principle of judicial review established in Marbury v. Madison — the power of courts to declare legislative and executive acts unconstitutional. From there, students study the allocation of power between the federal government and the states (federalism) and the distribution of power among the three branches (separation of powers).
The individual-rights portion of the course focuses on the Fourteenth Amendment's Due Process and Equal Protection Clauses. Substantive due process protects fundamental rights (privacy, marriage, bodily autonomy) from government interference and subjects such restrictions to strict scrutiny. Equal protection analysis requires classifying the government action by the type of classification it draws — suspect classifications like race trigger strict scrutiny, quasi-suspect classifications like gender trigger intermediate scrutiny, and all others receive rational-basis review.
The First Amendment occupies a substantial portion of the course. Students study freedom of speech (content-based vs. content-neutral regulations, unprotected categories like incitement and obscenity, commercial speech, symbolic expression), freedom of religion (the Establishment Clause and Free Exercise Clause), and freedom of the press. Throughout, the emphasis is on the tiers of scrutiny courts use and how to apply them to novel fact patterns.
Table of Contents
1Judicial Review & Justiciability
Judicial review — the power of federal courts to review the constitutionality of government action — was established in Marbury v. Madison. Before reaching the merits, courts must determine that the case satisfies justiciability requirements: standing (injury-in-fact, causation, and redressability), ripeness, mootness, and the political-question doctrine. Standing has been a particularly fertile area, with recent decisions tightening the injury-in-fact requirement for statutory violations.
Key Doctrines
- Judicial review (Marbury)
- Standing (injury-in-fact, causation, redressability)
- Ripeness
- Mootness (and exceptions)
- Political question doctrine
- Advisory opinions prohibition
- Case-or-controversy requirement (Article III)
2Federalism & the Commerce Clause
The Commerce Clause (Article I, section 8) is the primary source of federal regulatory power. From Gibbons v. Ogden through the New Deal expansion (Wickard v. Filburn, United States v. Darby) to the modern limits imposed by United States v. Lopez and NFIB v. Sebelius, the scope of the commerce power has been intensely debated. The Tenth Amendment reserves powers to the states, and the anti-commandeering doctrine (New York v. United States, Printz) prohibits Congress from compelling state officials to enforce federal programs. The Spending Clause (South Dakota v. Dole) provides Congress an alternative tool to influence state behavior through conditional grants.
Key Doctrines
- Commerce Clause (channels, instrumentalities, substantial effects)
- Necessary and Proper Clause
- Spending Clause conditions
- Tenth Amendment / anti-commandeering
- Supremacy Clause / preemption
- Dormant Commerce Clause
- Taxing power
Essential Cases
3Separation of Powers
Separation of powers divides authority among the legislative, executive, and judicial branches. Key issues include the scope of executive power (Youngstown Sheet & Tube v. Sawyer provides the foundational three-zone framework), the legislative veto (struck down in INS v. Chadha), the line-item veto (struck down in Clinton v. City of New York), the appointment and removal of executive officers (Morrison v. Olson, Seila Law v. CFPB), and executive privilege and immunity.
Key Doctrines
- Youngstown framework (Jackson concurrence zones 1-3)
- Non-delegation doctrine
- Legislative veto
- Appointment and removal powers
- Executive privilege
- Executive immunity
- Bivens actions
4Due Process
The Due Process Clauses of the Fifth and Fourteenth Amendments provide both procedural and substantive protections. Procedural due process requires fair procedures (notice and a hearing) before the government deprives a person of life, liberty, or property — the Mathews v. Eldridge balancing test determines what process is due. Substantive due process protects fundamental rights from government interference, subjecting such restrictions to strict scrutiny. The evolution of substantive due process from Lochner through Roe, Lawrence, and Obergefell traces the Court's recognition of unenumerated rights.
Key Doctrines
- Procedural due process (Mathews balancing test)
- Substantive due process
- Fundamental rights (strict scrutiny)
- Right to privacy
- Liberty interest / property interest
- Rational basis review
- Incorporation doctrine
- State action requirement
5Equal Protection
The Equal Protection Clause of the Fourteenth Amendment requires the government to treat similarly situated persons alike. The level of judicial scrutiny depends on the type of classification: strict scrutiny for suspect classifications (race, national origin, religion), intermediate scrutiny for quasi-suspect classifications (gender, legitimacy), and rational-basis review for everything else. Race-based classifications, even those designed to benefit minorities (affirmative action), must survive strict scrutiny and be narrowly tailored to a compelling government interest.
Key Doctrines
- Strict scrutiny (compelling interest, narrowly tailored)
- Intermediate scrutiny (important interest, substantially related)
- Rational basis review
- Suspect and quasi-suspect classifications
- Discriminatory intent requirement
- Affirmative action standards
- Separate but equal (overruled)
- Voting rights and redistricting
Essential Cases
6First Amendment
The First Amendment protects freedom of speech, press, assembly, petition, and religion. Content-based speech restrictions receive strict scrutiny, while content-neutral time, place, and manner restrictions need only satisfy intermediate scrutiny. Certain categories of speech — incitement (Brandenburg), fighting words (Chaplinsky), obscenity (Miller), and true threats (Virginia v. Black) — receive reduced or no protection. The Religion Clauses include the Establishment Clause (prohibiting government sponsorship of religion) and the Free Exercise Clause (protecting religious practice from government interference).
Key Doctrines
- Content-based vs. content-neutral regulations
- Strict scrutiny for content-based restrictions
- Time, place, and manner restrictions
- Unprotected categories (incitement, obscenity, fighting words, true threats)
- Prior restraint doctrine
- Symbolic speech (O'Brien test)
- Public forum doctrine
- Actual malice (Sullivan standard)
- Lemon test (Establishment Clause)
- Free exercise / religious exemptions
- Coercion test
- Endorsement test
Essential Cases
Exam Tips for Constitutional Law
Always identify the correct tier of scrutiny before analyzing the merits. State the standard clearly (strict, intermediate, or rational basis), identify what triggers it (fundamental right, suspect classification, etc.), and apply it systematically.
For standing questions, analyze all three elements separately: injury-in-fact (concrete, particularized, actual or imminent), causation (traceable to the defendant), and redressability (a favorable decision would likely remedy the injury). Recent cases have tightened injury-in-fact for statutory violations.
On Commerce Clause questions, analyze all three categories of regulation: channels of interstate commerce, instrumentalities of interstate commerce, and activities with a substantial effect on interstate commerce. For the third category, note whether the activity is economic in nature — Lopez and Morrison suggest non-economic activity requires a stronger nexus.
The Youngstown framework (Jackson concurrence) is essential for separation-of-powers questions. Zone 1 (president acts with congressional authorization — maximum power), Zone 2 (congressional silence — twilight zone), Zone 3 (president acts contrary to Congress — lowest ebb). Always classify the situation before analyzing.
For due process, first determine whether the interest is liberty or property, then determine whether the claim is procedural or substantive. Procedural: apply Mathews v. Eldridge balancing. Substantive: determine if a fundamental right is at stake and apply the appropriate level of scrutiny.
Equal protection analysis requires identifying the classification, determining the level of scrutiny, and analyzing whether the government has met its burden. For facially neutral laws with discriminatory effects, the plaintiff must prove discriminatory intent (Washington v. Davis).
First Amendment questions require categorizing the speech and the regulation. Is the speech protected? Is the regulation content-based or content-neutral? Is the speech in a public forum, designated public forum, or nonpublic forum? Each answer changes the applicable test.
Do not conflate the Establishment Clause and Free Exercise Clause. The Establishment Clause prevents government promotion of religion; the Free Exercise Clause prevents government interference with religious practice. The tension between them is a common exam topic.
Frequently Asked Questions
What are the requirements for standing under Article III?
To establish standing, a plaintiff must demonstrate: (1) injury-in-fact — a concrete, particularized, actual or imminent injury (not conjectural or hypothetical); (2) causation — the injury must be fairly traceable to the defendant's challenged conduct; and (3) redressability — a favorable judicial decision must be likely to remedy the injury. The Supreme Court has recently tightened these requirements, holding in TransUnion v. Ramirez (2021) that a bare statutory violation without concrete harm is insufficient.
What is the difference between strict scrutiny and rational basis review?
Strict scrutiny requires the government to prove that its action is narrowly tailored to achieve a compelling government interest. It applies to classifications based on race, national origin, or religion, and to laws burdening fundamental rights. Rational basis review only requires that the law be rationally related to a legitimate government interest — the most deferential standard. Intermediate scrutiny (for gender and legitimacy classifications) falls between: the law must be substantially related to an important government interest.
What is the Commerce Clause and how has it been interpreted?
The Commerce Clause (Article I, section 8, clause 3) grants Congress the power to regulate interstate commerce. The Supreme Court interprets it to cover three categories: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) activities with a substantial effect on interstate commerce. The scope expanded dramatically during the New Deal (Wickard v. Filburn) but was limited in United States v. Lopez (1995) and NFIB v. Sebelius (2012).
What is substantive due process?
Substantive due process protects certain fundamental rights from government interference, even when fair procedures are provided. Under strict scrutiny, the government must show that its action is narrowly tailored to a compelling interest. The Court has recognized fundamental rights including privacy, marriage, contraception, family relationships, and the right to refuse unwanted medical treatment. The doctrine is rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments.
When does a speech restriction trigger strict scrutiny under the First Amendment?
Content-based speech restrictions — those that regulate speech based on its message, topic, or viewpoint — trigger strict scrutiny and are presumptively unconstitutional. The government must prove the restriction is narrowly tailored to serve a compelling interest. Content-neutral restrictions (time, place, and manner regulations) receive intermediate scrutiny: they must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.
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