Constitutional Law

Overview

Constitutional Law is one of the most frequently tested subjects on the California Bar Exam, appearing on roughly one out of every three exams as an essay topic. It spans the structural allocation of governmental power (federalism, separation of powers) and individual rights protections (due process, equal protection, First Amendment). The subject draws primarily from the U.S. Constitution, Supreme Court case law, and — to a lesser extent — the California Constitution.

California Distinction

The California Constitution often provides broader individual rights protections than the U.S. Constitution. The CA free-speech clause applies to private property open to the public (e.g., shopping centers — Pruneyard Shopping Center v. Robins). The CA equal-protection clause has been interpreted to apply intermediate scrutiny to some classifications that receive only rational basis review federally. Always note where CA law may differ.

Exam Weight

Con Law essays often combine structural issues (e.g., Commerce Clause validity of a statute) with individual rights issues (e.g., does the statute violate equal protection or free speech?). Expect crossover with Criminal Procedure (4th/5th/6th Amendments) and Professional Responsibility (attorney speech). On the MBE, Con Law comprises roughly 25–30 questions.

Core Rules

I. Judicial Review & Justiciability

Judicial Review

Marbury v. Madison (1803) established that the federal judiciary has the power to review the constitutionality of acts of Congress and the Executive. The Supreme Court is the final arbiter of constitutional meaning.

  • Federal courts can review state court judgments on federal constitutional questions (Martin v. Hunter's Lessee).
  • Adequate and independent state grounds doctrine: The Supreme Court will not review a state court decision that rests on adequate and independent state law grounds, even if federal issues are also present.

A. Standing (Article III “Case or Controversy”)

A plaintiff must demonstrate three constitutional requirements:

  • Injury-in-fact — A concrete, particularized, actual or imminent injury (not conjectural or hypothetical). The plaintiff must be personally injured; a generalized grievance shared by all citizens is insufficient.
  • Causation (Traceability) — The injury must be fairly traceable to the defendant’s challenged conduct, not the result of independent action by a third party not before the court.
  • Redressability — It must be likely (not merely speculative) that a favorable judicial decision will remedy the injury.

Standing — Additional Rules

  • No third-party standing as a general rule. Exceptions: (1) close relationship + hindrance to the third party's ability to sue (e.g., doctor asserting patient rights); (2) First Amendment overbreadth; (3) organizations on behalf of their members (Hunt v. Washington State Apple Advertising Commission — members would have standing individually, interests are germane to organizational purpose, and individual member participation is not required).
  • No taxpayer standing generally (Frothingham). Exception: Flast v. Cohen — taxpayers may challenge congressional spending under the Taxing & Spending Clause as violating the Establishment Clause.
  • Legislators generally lack standing to challenge laws they voted against. They may have standing if they suffer a concrete institutional injury (e.g., loss of voting power).

Standing: “I.C.R.”

Injury-in-fact, Causation, Redressability — all three are constitutionally required under Article III.

B. Ripeness

A case is not ripe if the injury is too speculative or has not yet occurred. Courts consider: (1) the fitness of the issues for judicial decision (purely legal questions are more fit), and (2) the hardship to the parties of withholding review. Pre-enforcement challenges to criminal statutes are generally ripe when the threat of prosecution is credible.

C. Mootness

A case becomes moot if events after filing resolve the controversy so there is no longer a live dispute. Exceptions:

  • Capable of repetition, yet evading review — The controversy is inherently short-lived and likely to recur for the same plaintiff (e.g., abortion, election cases).
  • Voluntary cessation by the defendant does not moot a case unless it is “absolutely clear” that the conduct cannot reasonably be expected to recur.
  • Class actions — The named plaintiff’s claim may become moot, but the class action survives if the class was properly certified (or if certification is still possible — Genesis Healthcare Corp. v. Symczyk is limited).
  • Collateral consequences — Criminal convictions carry ongoing collateral consequences and are generally not moot.

D. Political Question Doctrine

Federal courts will not adjudicate “political questions” — issues constitutionally committed to another branch or lacking judicially manageable standards. The Baker v. Carr factors include:

  1. A textually demonstrable constitutional commitment of the issue to a coordinate branch.
  2. A lack of judicially discoverable and manageable standards for resolving it.
  3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.
  4. Inability to resolve without expressing lack of respect due coordinate branches.
  5. An unusual need for unquestioning adherence to a political decision already made.
  6. Potential for embarrassment from multifarious pronouncements by various departments.

Examples of political questions: the Guarantee Clause (republican form of government), impeachment procedures, foreign affairs (some), constitutional amendment process, partisan gerrymandering (Rucho v. Common Cause). Not political questions: reapportionment/equal protection challenges, presidential power disputes with justiciable standards.

II. Federal Legislative Power

Enumerated Powers Principle

Congress has no general police power. Every federal statute must be traceable to an enumerated power in the Constitution. The major sources of congressional power are: the Commerce Clause, the Taxing and Spending Power, the War Power, enforcement powers under the 13th, 14th, and 15th Amendments, and the Necessary and Proper Clause.

A. Commerce Clause (Art. I, § 8, cl. 3)

Congress may regulate:

  1. Channels of interstate commerce (highways, waterways, airways, the internet).
  2. Instrumentalities of interstate commerce and persons/things in interstate commerce (trucks, planes, stolen goods crossing state lines).
  3. Activities that have a substantial effect on interstate commerce.

Substantial Effects Test

For category (3), if the regulated activity is economic/commercial in nature, the court may aggregate the effects of all similar individual activities nationwide (Wickard v. Filburn; Gonzales v. Raich). If the activity is non-economic, aggregation is generally not permitted, and there must be a demonstrated link to interstate commerce (United States v. Lopez — guns near schools; United States v. Morrison — gender-motivated violence).

Commerce Clause Limits

Congress cannot use the Commerce Clause to compel individuals to engage in commerce. The individual mandate in NFIB v. Sebelius was struck down under the Commerce Clause (but upheld under the Taxing Power) because it regulated inactivity rather than activity. Congress also cannot commandeer state legislatures or officers (see Federalism below).

B. Taxing & Spending Power (Art. I, § 8, cl. 1)

  • Taxing Power: Congress may tax for any public purpose. A tax will be upheld even if it has a regulatory effect, so long as it produces at least some revenue and is not a “penalty” in substance. In NFIB v. Sebelius, the individual mandate was upheld as a tax because it produced revenue, was paid to the IRS, was not punitive, and applied to those who had not engaged in unlawful conduct.
  • Spending Power: Congress may spend for the “general welfare” and may attach conditions to federal grants to states, subject to South Dakota v. Dole limits:
    1. Conditions must be in pursuit of the “general welfare.”
    2. Conditions must be unambiguous.
    3. Conditions must be related to the federal interest in the particular program.
    4. Conditions must not violate other constitutional provisions.
    5. The financial inducement must not be so coercive as to amount to compulsion (NFIB v. Sebelius — threatening loss of all Medicaid funding was coercive).

C. War Power

Congress has the power to declare war, raise and support armies, provide and maintain a navy, and make rules for the government and regulation of the armed forces. This power is broad and extends to wartime regulation of the economy (price controls, rationing) and even post-war measures. The military draft is constitutional.

D. Enforcement Powers (13th, 14th, 15th Amendments)

Section 5 of the 14th Amendment / Section 2 of the 15th Amendment

Congress may enforce these amendments through “appropriate legislation.” Under City of Boerne v. Flores, enforcement legislation must be congruent and proportional to a documented pattern of constitutional violations. Congress may not use Section 5 to expand the scope of constitutional rights as defined by the Court; it may only remedy or deter violations. Example: RFRA was struck down as applied to states because it was too broad relative to documented Free Exercise violations.

13th Amendment — Section 2

The 13th Amendment is unique: it applies to private conduct (not just state action). Congress may prohibit “badges and incidents of slavery,” broadly defined (Jones v. Alfred H. Mayer Co.). Legislation under the 13th Amendment receives more deferential review than under the 14th.

E. Necessary & Proper Clause (Art. I, § 8, cl. 18)

Congress may enact laws that are rationally related to the implementation of any enumerated power — not just those in Article I. The means need only be convenient or useful, not indispensable (McCulloch v. Maryland). This clause is not an independent source of power; it must be tethered to another enumerated power. However, it significantly broadens Congress’s reach (e.g., creation of a national bank, federal criminal laws supporting Commerce Clause regulation).

III. Federal Executive Power

A. Appointment & Removal

  • Appointment: The President appoints “principal officers” (ambassadors, Supreme Court justices, cabinet members) with the advice and consent of the Senate. Congress may vest appointment of “inferior officers” in the President alone, courts, or heads of departments. Congress may not appoint executive officers itself (Buckley v. Valeo).
  • Removal: The President has broad removal power over executive officers. Congress may limit removal of inferior officers performing quasi-judicial or quasi-legislative functions to “for cause” removal (e.g., independent agencies). Congress may not impose two layers of for-cause removal (making the officer too insulated from the President — Free Enterprise Fund v. PCAOB). Congress may not reserve removal power to itself except through impeachment.

B. Executive Privilege

The President has a qualified privilege to keep presidential communications confidential. However, the privilege is not absolute and must yield to demonstrated, specific need in criminal proceedings (United States v. Nixon). Presidential immunity from civil suits for official acts is absolute (Nixon v. Fitzgerald), but there is no immunity for acts taken before taking office or for unofficial acts (Clinton v. Jones).

C. Pardon Power

The President may grant reprieves and pardons for offenses against the United States (federal crimes only). Limitations: (1) does not extend to state crimes; (2) does not extend to impeachment; (3) may be exercised at any time after the commission of the offense (including before conviction). A pardon may be conditional.

D. Treaties & Executive Agreements

  • Treaties: Negotiated by the President, ratified with 2/3 Senate consent. Treaties are the “supreme law of the land” and prevail over conflicting state law. A treaty and a federal statute are equal: the later in time controls if there is a conflict. Treaties may not violate the Constitution.
  • Executive agreements: Agreements between the President and foreign heads of state that do not require Senate ratification. They prevail over conflicting state law but do not prevail over conflicting federal statutes.

E. War Powers

The President is Commander-in-Chief. In the absence of congressional authorization, the President may use military force to repel sudden attacks but may not initiate prolonged hostilities without congressional approval. The War Powers Resolution (1973) requires the President to notify Congress within 48 hours of committing troops and to withdraw forces within 60 days absent congressional authorization (with a 30-day withdrawal extension). The constitutionality of the WPR has never been squarely resolved by the Supreme Court.

Youngstown Framework (Steel Seizure Case)

Justice Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer provides the governing framework for executive power disputes:

  1. Category 1 — Maximum power: President acts with express or implied authorization of Congress. Presidential power is at its maximum and is upheld unless the federal government as a whole lacks power.
  2. Category 2 — Twilight zone: President acts in the absence of congressional grant or denial. There is a “zone of twilight” where the President and Congress may have concurrent authority. Analysis is fact-specific.
  3. Category 3 — Lowest ebb: President acts contrary to the expressed or implied will of Congress. Presidential power is at its “lowest ebb” and is only sustained if the President has exclusive constitutional authority. The Court is most skeptical in this category.

IV. Federalism

A. 10th Amendment & Anti-Commandeering

10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The 10th Amendment is not an independent limit on federal power — if a federal act is within an enumerated power, the 10th Amendment is satisfied. It serves mainly as a reminder that federal power is limited.

Anti-Commandeering Doctrine

Congress may not compel state legislatures to enact or administer a federal regulatory program (New York v. United States) and may not compel state executive officials to enforce federal law (Printz v. United States). Congress also may not commandeer state legislatures by prohibiting them from enacting certain laws (Murphy v. NCAA). Congress may, however: (1) offer conditional federal funds (Spending Power), (2) preempt state law, or (3) give states a “choice” between regulating according to federal standards or having federal law preempt state law (“conditional preemption”).

B. Preemption (Supremacy Clause, Art. VI)

Federal law preempts conflicting state law under the Supremacy Clause. Three types:

TypeStandardExample
Express Preemption Federal statute explicitly says it preempts state law in a defined area. ERISA preempts state laws that “relate to” employee benefit plans.
Field Preemption Federal regulation is so pervasive that Congress intended to “occupy the field,” leaving no room for state regulation. Also inferred where the federal interest is dominant (e.g., immigration, foreign affairs). Arizona v. United States — federal immigration law preempts most of Arizona’s S.B. 1070.
Conflict Preemption State law directly conflicts with federal law (compliance with both is impossible) or state law is an obstacle to the full purposes and objectives of Congress. A state cannot impose lower safety standards than those mandated by federal law when federal law sets a floor.

Presumption Against Preemption

In areas of traditional state regulation (health, safety, family law), courts apply a presumption against preemption. Congress must make its preemptive intent “clear and manifest.”

C. Dormant Commerce Clause (DCC)

Dormant Commerce Clause

Even when Congress has not acted, the Commerce Clause implicitly restricts state and local regulation that unduly burdens interstate commerce. The DCC analysis proceeds in two tiers:

  1. Discrimination against interstate commerce: If a state law discriminates against out-of-state commerce (on its face, in purpose, or in practical effect), it is virtually per se invalid — upheld only if the state proves no less discriminatory alternative can achieve a legitimate local purpose. (Philadelphia v. New Jersey — waste import ban struck down; Dean Milk Co. v. City of Madison — local pasteurization requirement struck down.)
  2. Facially neutral but burdensome: If the law is facially neutral but imposes an incidental burden on interstate commerce, apply the Pike v. Bruce Church balancing test: the law is invalid if the burden on interstate commerce is clearly excessive in relation to the putative local benefits.

DCC Exceptions

  • Congressional consent: Congress may authorize state laws that would otherwise violate the DCC.
  • Market participant exception: When a state acts as a market participant (buyer or seller of goods/services) rather than a market regulator, the DCC does not apply. The state may favor its own citizens (Hughes v. Alexandria Scrap Corp.; South-Central Timber Development v. Wunnicke — but cannot impose “downstream” restrictions beyond the immediate transaction).
  • Traditional government functions: States may favor their own citizens in some core governmental functions (e.g., employment on public works projects under the Privileges and Immunities Clause analysis is separate, but the market-participant exception covers state-as-buyer scenarios).

DCC vs. Privileges & Immunities Clause (Art. IV, § 2)

The Art. IV P&I Clause prohibits states from discriminating against out-of-state citizens with respect to fundamental rights (e.g., earning a livelihood). Unlike the DCC: (1) it has no market-participant exception; (2) it protects only natural persons, not corporations; (3) it applies only to discrimination, not incidental burdens. The state may justify discrimination by showing (a) a substantial reason for different treatment and (b) the discrimination bears a substantial relationship to achieving that objective.

V. State Action Doctrine

State Action Requirement

The Constitution (except the 13th Amendment) protects only against governmental action, not private conduct. A private actor’s conduct may be attributed to the state under limited circumstances:

  • Public function doctrine: A private entity performs a function traditionally and exclusively reserved to the government (e.g., running a company town — Marsh v. Alabama; conducting elections). Running a private school, utility, or shopping center generally does not qualify.
  • Entanglement / Joint action: The government is significantly involved with the private actor (e.g., government leases property to a discriminatory club and derives mutual benefit — Burton v. Wilmington Parking Authority; government actively encourages the private discrimination).
  • Judicial enforcement: A court enforcing a private agreement can constitute state action (Shelley v. Kraemer — judicial enforcement of racially restrictive covenants).

Not state action: Merely granting a license or providing services (electricity, police) to a private entity. Government regulation alone is insufficient — the government must compel or encourage the discriminatory conduct.

VI. Incorporation (14th Amendment Due Process)

Selective Incorporation

The Bill of Rights originally applied only to the federal government. Through the Due Process Clause of the 14th Amendment, the Supreme Court has “selectively incorporated” most Bill of Rights protections against state and local governments. A right is incorporated if it is “fundamental to our scheme of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”

Incorporated rights include: 1st Amendment (speech, press, assembly, petition, religion), 2nd Amendment (right to bear arms — McDonald v. City of Chicago), 4th Amendment, 5th Amendment (self-incrimination, double jeopardy, takings — but not grand jury indictment), 6th Amendment (all provisions), 8th Amendment (cruel and unusual punishment, excessive fines — Timbs v. Indiana).

Not incorporated: 3rd Amendment (not definitively decided), 5th Amendment grand jury requirement, 7th Amendment right to jury trial in civil cases, excessive bail (not definitively decided).

VII. Procedural Due Process

Two-Step Analysis

Step 1 — Is there a protected interest? The Due Process Clauses (5th & 14th Amendments) protect against governmental deprivation of life, liberty, or property without due process of law.

  • Liberty: Includes freedom from bodily restraint, right to contract, right to engage in gainful employment, freedom from government defamation combined with alteration of a legal right (stigma-plus), parental rights, and physical freedom.
  • Property: A legitimate claim of entitlement to a benefit, as defined by an independent source such as state law (e.g., continued public employment under “for cause” termination provisions, welfare benefits, public education). An abstract need or desire is not sufficient; there must be a rule or understanding that limits government discretion.

Step 2 — What process is due? At minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. The specific procedures required are determined by the Mathews v. Eldridge balancing test.

Mathews v. Eldridge Balancing Test

Courts balance three factors to determine what procedures are constitutionally required:

  1. Private interest affected by the governmental action (how important is the interest to the individual?).
  2. Risk of erroneous deprivation under current procedures and the probable value of additional or substitute procedural safeguards.
  3. Government’s interest, including the function involved and the fiscal and administrative burdens that additional procedures would entail.

Key Procedural Due Process Applications

  • Welfare benefits: Pre-termination evidentiary hearing required (Goldberg v. Kelly).
  • Disability benefits: Post-termination hearing is sufficient (Mathews v. Eldridge).
  • Public employment (for-cause only): Pre-termination notice, explanation, and opportunity to respond; full post-termination hearing (Cleveland Bd. of Ed. v. Loudermill).
  • Public school suspension: Informal notice and opportunity to explain; no formal hearing required for short suspensions (Goss v. Lopez).
  • Parental rights termination: Heightened procedures required (clear and convincing evidence standard — Santosky v. Kramer).
  • Enemy combatant detention: Due process requires meaningful opportunity to contest before a neutral decisionmaker (Hamdi v. Rumsfeld).

VIII. Substantive Due Process

Framework

Substantive due process asks whether the substance of a law is constitutionally permissible — i.e., does the government have an adequate reason for depriving a person of life, liberty, or property? The level of scrutiny depends on whether a fundamental right is involved.

A. Fundamental Rights — Strict Scrutiny

When a law burdens a fundamental right, the government must prove the law is necessary to achieve a compelling governmental interest and is narrowly tailored (least restrictive means).

Recognized fundamental rights include:

  • Right to privacy / autonomy: Contraception (Griswold v. Connecticut), abortion (see below), intimate sexual conduct (Lawrence v. Texas).
  • Right to marry: Loving v. Virginia; Obergefell v. Hodges (same-sex marriage).
  • Family relations: Right to live with extended family (Moore v. City of East Cleveland); parental right to direct the upbringing and education of children (Troxel v. Granville; Pierce v. Society of Sisters; Meyer v. Nebraska).
  • Right to procreate: Skinner v. Oklahoma (compulsory sterilization struck down).
  • Right to vote: Fundamental for equal protection purposes, with implications for SDP.
  • Right to travel: Interstate travel is fundamental (Saenz v. Roe); international travel receives lesser protection.
  • Right to refuse unwanted medical treatment: Competent adults have a liberty interest in refusing treatment (Cruzan v. Director); states may require clear and convincing evidence of the patient's wishes. There is no fundamental right to physician-assisted suicide (Washington v. Glucksberg).
  • 2nd Amendment right to keep and bear arms: Incorporated against the states (McDonald); subject to historical-tradition analysis under New York State Rifle & Pistol Assn. v. Bruen.

Abortion After Dobbs

In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion. Abortion regulations are now subject to rational basis review under federal constitutional law. Individual states may protect or restrict abortion under their own state constitutions. California's Constitution was amended in 2022 to explicitly protect reproductive freedom (Proposition 1).

B. Non-Fundamental Rights — Rational Basis Review

All other liberty and property interests receive rational basis review. The law is upheld if it is rationally related to a legitimate government interest. The burden is on the challenger. The government’s actual motive is irrelevant — any conceivable legitimate purpose suffices. Economic and social legislation almost always survives rational basis review.

“Rational Basis with Bite”

In a few cases (e.g., City of Cleburne v. Cleburne Living Center — intellectual disability; Romer v. Evans — sexual orientation; U.S. Dept. of Agriculture v. Moreno — desire to harm an unpopular group), the Court has applied what appears to be a more searching form of rational basis review, invalidating laws based on animus or irrational prejudice. This “rational basis with bite” is not an officially recognized tier but is important for exam purposes.

IX. Equal Protection

Equal Protection Framework

The 14th Amendment Equal Protection Clause applies to states; equal protection applies to the federal government through the 5th Amendment Due Process Clause (“reverse incorporation” — Bolling v. Sharpe). The central question: does the government’s classification treat similarly situated people differently without adequate justification?

ClassificationLevel of ScrutinyGovernment Must ShowExamples
Suspect Class — Race, National Origin, Alienage (state laws) Strict Scrutiny Law is necessary to achieve a compelling government interest (narrowly tailored) Racial segregation, race-based affirmative action, race-based redistricting
Quasi-Suspect Class — Gender, Legitimacy (non-marital children) Intermediate Scrutiny Law is substantially related to an important government interest Sex-based classifications, differential treatment of non-marital children
Non-Suspect Class — Age, Disability, Wealth, Sexual Orientation, all others Rational Basis Law is rationally related to a legitimate government interest Economic regulation, mandatory retirement ages, residency requirements

Proving Discriminatory Intent

A facially neutral law is subject to heightened scrutiny only if the challenger proves discriminatory intent (not merely disparate impact). Evidence of intent includes: (1) statistical patterns of discrimination; (2) the historical background of the decision; (3) the sequence of events leading to the decision; (4) departures from normal procedural sequence; (5) legislative or administrative history (Village of Arlington Heights v. Metropolitan Housing Dev. Corp.). Disparate impact alone is insufficient (Washington v. Davis).

A. Alienage

  • State discrimination against lawful aliens: strict scrutiny (aliens are a “discrete and insular minority”). Exception: “political function” exception — rational basis for state laws restricting participation in government (police officers, teachers, probation officers — Foley v. Connelie; Ambach v. Norwick).
  • Federal discrimination against aliens: rational basis (Congress has plenary power over immigration — Mathews v. Diaz).
  • Undocumented alien children: cannot be denied free public education (Plyler v. Doe — intermediate-like scrutiny).

B. Gender

Gender classifications receive intermediate scrutiny: the classification must be substantially related to an important government interest. The government must show an “exceedingly persuasive justification” (United States v. Virginia (VMI)). Stereotypical generalizations about gender roles are not sufficient justifications. Intentional discrimination must be shown.

C. Affirmative Action

Race-Based Affirmative Action

All racial classifications, including those that are “benign” or designed to benefit minorities, are subject to strict scrutiny (Adarand Constructors v. Pena). In Students for Fair Admissions v. Harvard (2023), the Supreme Court held that race-conscious admissions programs at Harvard and UNC violated the Equal Protection Clause, effectively ending race-based affirmative action in higher education. Permissible approaches include race-neutral alternatives (socioeconomic-based admissions, percentage plans). Narrowly tailored remedial programs to address proven past discrimination may still be permissible.

D. Fundamental Rights Triggering Strict Scrutiny Under EP

Certain rights, when burdened by government classifications, trigger strict scrutiny even when the burdened class is not suspect:

  • Right to vote: Poll taxes (Harper v. Virginia), durational residency requirements, ballot access restrictions for candidates, and gerrymandering (racial — strict scrutiny; partisan — political question after Rucho).
  • Right to travel: Durational residency requirements for government benefits trigger strict scrutiny (Shapiro v. Thompson; Saenz v. Roe).
  • Access to courts: Filing fees that bar access for indigents in fundamental matters (divorce, criminal appeals) violate equal protection.

X. First Amendment — Freedom of Speech

Core Framework

The First Amendment prohibits the government from “abridging the freedom of speech.” Analysis depends on: (1) whether the regulation is content-based or content-neutral; (2) whether the speech falls into an unprotected category; and (3) the forum in which the speech occurs.

A. Content-Based vs. Content-Neutral Regulations

TypeDefinitionStandard of Review
Content-Based Law targets speech based on its topic, subject matter, or viewpoint. Applies on its face or if the purpose is content-based (Reed v. Town of Gilbert). Strict scrutiny: must be necessary to serve a compelling interest and narrowly tailored. Viewpoint-based restrictions are virtually always unconstitutional.
Content-Neutral Law regulates speech without regard to its content — targets the time, place, or manner of speech. Intermediate scrutiny: must be narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication (Ward v. Rock Against Racism). “Narrowly tailored” does not mean least restrictive means.

B. Public Forum Doctrine

Forum TypeDescriptionStandard
Traditional Public Forum Sidewalks, parks, streets — places historically open for public expression. Content-based restrictions: strict scrutiny. Content-neutral TPM restrictions: must be narrowly tailored to a significant interest + ample alternatives.
Designated (Limited) Public Forum Government-opened property for expressive use (e.g., a university meeting room opened to student groups). Same rules as traditional public forum while the forum remains open. Government may close it or limit it to certain topics/speakers, but cannot engage in viewpoint discrimination.
Nonpublic Forum Government property not traditionally open for public expression (military bases, jailhouses, internal mail systems, airports in some contexts). Regulation must be reasonable and viewpoint-neutral. No strict scrutiny required.

C. Unprotected and Less-Protected Speech

  • Incitement: Speech directed to inciting imminent lawless action and likely to produce such action (Brandenburg v. Ohio). Mere advocacy of illegal conduct in the abstract is protected.
  • Fighting words: Words that by their very utterance tend to incite an immediate breach of the peace, directed at a specific individual (Chaplinsky v. New Hampshire). Laws targeting fighting words must not be content-based within the category (R.A.V. v. City of St. Paul — a fighting-words statute cannot single out only certain viewpoints).
  • True threats: Statements where the speaker means to communicate a serious expression of intent to commit unlawful violence against an individual or group (Virginia v. Black). After Counterman v. Colorado (2023), the speaker must have acted with at least recklessness as to whether the statement would be perceived as a threat.
  • Obscenity: The Miller v. California test: (1) the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest in sex; (2) the work depicts or describes sexual conduct in a patently offensive way as defined by state law; (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (LAPS — national standard). Mere nudity or indecency is not obscenity.
  • Child pornography: May be completely banned regardless of the Miller test (New York v. Ferber). Must involve actual minors; purely virtual/simulated child pornography is protected under Ashcroft v. Free Speech Coalition.
  • Defamation: See Torts; constitutional limitations (New York Times v. Sullivan) require public officials/figures to prove actual malice (knowledge of falsity or reckless disregard for truth). Private plaintiffs on matters of public concern must prove at least negligence.
  • Fraud / Misleading commercial speech: False or misleading commercial speech may be banned outright.

D. Commercial Speech

Central Hudson Test

Commercial speech (speech proposing a commercial transaction) that is truthful and not misleading receives intermediate protection under Central Hudson Gas & Electric v. Public Service Commission:

  1. Is the speech protected? (It must concern lawful activity and not be misleading.)
  2. Is the government interest substantial?
  3. Does the regulation directly advance the government interest?
  4. Is the regulation no more extensive than necessary (reasonable fit, not least restrictive means)?

E. Symbolic Speech / Expressive Conduct

Conduct that communicates a message is protected when the speaker intends to convey a particularized message and the audience is likely to understand it. The O'Brien test applies to regulations of expressive conduct:

  1. The regulation is within the constitutional power of the government.
  2. It furthers an important or substantial government interest.
  3. The interest is unrelated to the suppression of free expression.
  4. The incidental restriction on speech is no greater than essential.

Examples: Flag burning is protected symbolic speech (Texas v. Johnson). Burning a draft card is not protected because the regulation furthers an interest unrelated to speech (O'Brien).

F. Prior Restraints

Government orders that prevent speech before it occurs are presumptively unconstitutional and bear a heavy burden of justification (Near v. Minnesota). Permitted only in extraordinary circumstances (e.g., national security during wartime, obscenity). Licensing/permit schemes for speech are valid only if they: (1) contain narrow, definite standards guiding the licensing authority; (2) are not based on the content of the speech; and (3) provide for prompt judicial review of license denials.

G. Overbreadth & Vagueness

  • Overbreadth: A law is facially invalid if it prohibits a substantial amount of protected speech relative to its legitimate sweep, even if the challenger's own conduct could be constitutionally regulated. This is an exception to normal standing rules (allows third-party standing). Applies only in the First Amendment context.
  • Vagueness: A law is void for vagueness if a person of ordinary intelligence cannot understand what conduct is prohibited and/or it invites arbitrary and discriminatory enforcement. Applies to all laws (not just speech), but heightened vagueness scrutiny applies when speech is involved.

H. Other Speech Doctrines

  • Compelled speech: The government generally may not compel individuals to express a message they disagree with (West Virginia v. Barnette — compelled flag salute; Wooley v. Maynard — license plates; 303 Creative v. Elenis — compelled creation of expressive content).
  • Government speech: When the government speaks for itself, it may express viewpoints without triggering First Amendment scrutiny (Walker v. Texas Division, Sons of Confederate Veterans — license plate designs as government speech; Pleasant Grove City v. Summum — monuments in a public park).
  • Unconstitutional conditions: The government may not condition a benefit on the recipient’s agreement to forgo a constitutional right (Speiser v. Randall). But the government may choose not to subsidize speech without “penalizing” it (Rust v. Sullivan — government funding restrictions on abortion counseling in Title X clinics).
  • Campaign finance: Political spending is protected speech. The government may regulate contributions (intermediate scrutiny) but significant restrictions on independent expenditures are subject to strict scrutiny (Buckley v. Valeo; Citizens United v. FEC — corporations have First Amendment rights; independent expenditure limits struck down).
  • Freedom of the press: The press has no greater First Amendment rights than the general public. The press has no constitutional right of access to prisons beyond that of the general public and no privilege to refuse to testify before a grand jury (Branzburg v. Hayes).
  • Freedom of association: The right to associate for expressive purposes is protected. The government may compel disclosure of group membership only if there is a compelling interest (NAACP v. Alabama). Expressive associations may exclude persons whose membership would impair the group’s message (Boy Scouts v. Dale).

XI. First Amendment — Religion Clauses

A. Establishment Clause

Establishment Clause Tests

The Establishment Clause prohibits the government from establishing a religion or favoring one religion over another (or religion over non-religion). The analytical framework has evolved significantly:

  • Lemon Test (Lemon v. Kurtzman, 1971): (1) The law must have a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; (3) it must not foster excessive government entanglement with religion. Note: The Lemon test has been heavily criticized and was effectively abandoned by the Supreme Court in Kennedy v. Bremerton School District (2022).
  • Endorsement Test (O'Connor): Would a reasonable observer perceive the government action as endorsing religion? Also largely superseded.
  • Coercion Test (Lee v. Weisman): The government may not coerce participation in religious activity. Government-sponsored prayer at public school graduations is coercive. This remains good law.
  • Historical Practices and Understandings (Kennedy v. Bremerton; American Legion v. American Humanist Association): The Court now emphasizes historical practices and understandings of the Establishment Clause. Long-standing practices (legislative prayer, war memorials with religious symbols) are generally permissible. This is the current governing framework.

Key Establishment Clause Applications

  • School prayer: Government-composed or -sponsored prayer in public schools is unconstitutional (Engel v. Vitale; Abington School District v. Schempp). This remains the law.
  • Religious displays: Analyzed under historical-practices framework. A passive display with historical context is more likely upheld (Van Orden v. Perry — Ten Commandments at Texas Capitol). A display appearing to endorse religion is more suspect (McCreary County v. ACLU — Ten Commandments in courthouses).
  • Aid to religious schools: Government aid that goes to religious and secular schools on a neutral basis, determined by private choice, is permissible (Zelman v. Simmons-Harris — school vouchers). Excluding religious schools from generally available public benefits violates the Free Exercise Clause (Trinity Lutheran Church v. Comer; Espinoza v. Montana; Carson v. Makin).

B. Free Exercise Clause

Employment Division v. Smith (1990)

A neutral law of general applicability that incidentally burdens religious practice does not violate the Free Exercise Clause. The government need not show a compelling interest. Example: Neutral drug laws may prohibit peyote use even in religious ceremonies.

Exceptions triggering strict scrutiny:

  • The law is not neutral — it targets religious practice on its face or by design (Church of the Lukumi Babalu Aye v. City of Hialeah).
  • The law is not generally applicable — it provides a system of individualized exemptions (discretionary) or has categorical secular exemptions that undermine the government’s claimed interest (Fulton v. City of Philadelphia).
  • Hybrid rights: The Free Exercise claim is coupled with another constitutional right (e.g., parental rights + free exercise — Wisconsin v. Yoder).

Religious Freedom Restoration Act (RFRA)

In response to Smith, Congress enacted RFRA, which provides that the government shall not substantially burden a person’s exercise of religion unless it demonstrates that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest.

  • RFRA applies to the federal government only (City of Boerne v. Flores struck down RFRA as applied to state/local governments as exceeding Section 5 power).
  • Many states have enacted their own state RFRAs or provide heightened free-exercise protections under state constitutions.
  • RFRA protects individuals and closely held corporations (Burwell v. Hobby Lobby).

XII. Takings Clause (5th Amendment)

Takings Framework

The 5th Amendment (incorporated against states via the 14th) provides: “nor shall private property be taken for public use, without just compensation.” The three key questions are: (1) Is there a taking? (2) Is it for public use? (3) Is just compensation paid?

A. Types of Takings

TypeRuleKey Cases
Physical Taking / Per Se Taking (Physical Invasion) A permanent physical occupation of property authorized by the government is a per se taking, regardless of the public interest served or the small size of the invasion. Loretto v. Teleprompter Manhattan CATV Corp. (cable box installation); Cedar Point Nursery v. Hassid (2021) (union access regulations constituted a per se taking).
Per Se Regulatory Taking (Total Wipeout) A regulation that deprives an owner of all economically beneficial use of the property is a per se taking, unless the restriction inheres in the background principles of state property or nuisance law. Lucas v. South Carolina Coastal Council.
Regulatory Taking (Partial Diminution) A regulation that diminishes but does not eliminate economic value is analyzed under the Penn Central balancing test. Penn Central Transportation Co. v. New York City.
Exactions Government conditions on development permits must satisfy: (1) essential nexus between the condition and a legitimate state interest (Nollan); (2) rough proportionality between the condition’s burden and the projected impact of the proposed development (Dolan). Applies to monetary exactions as well (Koontz v. St. Johns River Water Management District). Nollan v. California Coastal Commission; Dolan v. City of Tigard.

Penn Central Balancing Test

For regulatory takings that do not fall into per se categories, courts weigh three factors:

  1. Economic impact of the regulation on the claimant.
  2. The extent to which the regulation interferes with distinct investment-backed expectations.
  3. The character of the government action (a physical invasion is more likely a taking; a broadly applicable regulation for the public benefit is less likely a taking).

B. Public Use

The “public use” requirement is interpreted broadly. The government may take property for any conceivable public purpose, including economic redevelopment, even if the property is transferred to a private party (Kelo v. City of New London). Many states, including California, have enacted legislation restricting Kelo-type takings.

C. Just Compensation

The owner is entitled to the fair market value of the property at the time of the taking, measured by what a willing buyer would pay a willing seller. Sentimental or subjective value is not compensable.

XIII. Contracts Clause (Art. I, § 10)

Contracts Clause

“No State shall…pass any…Law impairing the Obligation of Contracts.” This clause applies only to states (not the federal government) and restricts the impairment of existing contracts (not prospective regulation).

Analysis (Energy Reserves Group v. Kansas Power & Light):

  1. Does the state law substantially impair a contractual relationship?
  2. If so, is there a significant and legitimate public purpose behind the regulation?
  3. Is the impairment reasonable and narrowly drawn to promote that purpose?

When the state is a party to the contract, courts apply heightened scrutiny because of the state’s self-interest (United States Trust Co. v. New Jersey).

XIV. Second Amendment

Right to Keep and Bear Arms

The 2nd Amendment protects an individual right to keep and bear arms for self-defense, unconnected to militia service (District of Columbia v. Heller). This right is incorporated against the states (McDonald v. City of Chicago).

Under New York State Rifle & Pistol Association v. Bruen (2022), the framework for evaluating firearms regulations is:

  1. Does the regulated conduct fall within the plain text of the 2nd Amendment (i.e., does it involve “arms” and is it “keep[ing]” or “bear[ing]” them)?
  2. If yes, the regulation is presumptively unconstitutional. The government must then demonstrate that the regulation is consistent with the Nation’s historical tradition of firearms regulation. Means-end scrutiny (intermediate or strict) is not the proper test.

Laws upheld historically: prohibitions on possession by felons and the mentally ill, laws forbidding firearms in sensitive places (schools, government buildings), conditions on the commercial sale of arms.

XV. 13th, 14th, & 15th Amendment Enforcement

Enforcement Powers Summary

  • 13th Amendment: Abolishes slavery and involuntary servitude. Self-executing (no state action required). Section 2 gives Congress broad power to legislate against “badges and incidents” of slavery, reaching private conduct.
  • 14th Amendment, § 5: Congress may “enforce” the 14th Amendment through “appropriate legislation.” Under City of Boerne v. Flores, legislation must be congruent and proportional to documented constitutional violations. Congress cannot create new rights or expand existing rights — it can only remedy or deter identified state violations. Example of valid § 5 legislation: Voting Rights Act provisions addressing documented racial discrimination in voting.
  • 15th Amendment, § 2: Prohibits denial of the right to vote on account of race. Congress may enforce with appropriate legislation (similar congruence-and-proportionality standard). The Voting Rights Act (especially §§ 2 and 5) was enacted under this power, though the coverage formula of § 4(b) was struck down in Shelby County v. Holder as no longer responsive to current conditions.

Common Essay Patterns

Pattern 1: Congressional Power + Individual Rights Challenge

A federal statute regulates some activity. The essay asks you to analyze whether Congress has the power to enact the statute and whether it violates individual rights.

  1. Source of congressional power: Commerce Clause (channels/instrumentalities/substantial effects), Taxing & Spending, War Power, Enforcement (13th/14th/15th), Necessary & Proper. Identify the most likely source and analyze the limits.
  2. 10th Amendment / Commandeering: If the law directs states to act, address commandeering limits.
  3. Individual rights: Typically equal protection (5th Amendment — reverse incorporation), due process (substantive or procedural), or First Amendment. Identify the classification or right, select the level of scrutiny, and apply.

Tip: Always address congressional power first, then individual rights. Even if the statute is within Congress’s enumerated power, it may still violate individual rights.

Pattern 2: State Regulation + Commerce Clause / Preemption

A state enacts a regulation that affects interstate commerce or overlaps with federal law.

  1. Preemption: Is there an express preemption clause? If not, is the federal scheme so pervasive as to occupy the field? Does the state law directly conflict with or obstruct federal law?
  2. Dormant Commerce Clause: Does the state law discriminate against interstate commerce (facial, purposeful, or in effect)? If discriminatory: virtually per se invalid unless no less discriminatory alternative. If neutral but burdensome: Pike balancing. Consider the market-participant exception.
  3. Privileges & Immunities (Art. IV): If the law discriminates against out-of-state citizens regarding fundamental rights (livelihood), analyze under the substantial-reason / substantial-relationship test. No market-participant exception.
Pattern 3: Free Speech Analysis

A government regulation restricts speech or expressive conduct.

  1. State action? Confirm government involvement.
  2. Is the speech protected? Determine if the speech falls into an unprotected category (incitement, fighting words, true threats, obscenity, child porn). If unprotected, apply the specific test for that category.
  3. Content-based or content-neutral? If content-based: strict scrutiny. If content-neutral: intermediate scrutiny (TPM).
  4. Forum: Identify the forum type and apply the corresponding standard.
  5. Special doctrines: Prior restraint? Overbreadth? Vagueness? Compelled speech? Commercial speech (Central Hudson)?
Pattern 4: Equal Protection & Due Process Challenge to State Law

A state law classifies people or restricts a liberty interest.

  1. State action: Confirm the challenged action is governmental.
  2. Equal Protection: Identify the classification. What level of scrutiny? Suspect (strict), quasi-suspect (intermediate), or non-suspect (rational basis)? Is there a fundamental right triggering strict scrutiny? Apply the appropriate test. If the law is facially neutral, prove discriminatory intent.
  3. Substantive Due Process: Is a fundamental right burdened? If so, strict scrutiny. If not, rational basis. Identify the right and discuss whether it is recognized as fundamental.
  4. Procedural Due Process: Is there a protected liberty or property interest? If so, apply the Mathews balancing test to determine what procedures are required.

Tip: EP and SDP overlap significantly. Address both when the facts support it. EP focuses on classifications; SDP focuses on the right itself.

Pattern 5: Takings / Land Use Regulation

A government regulation restricts use of private property.

  1. Physical taking? Permanent physical occupation = per se taking (Loretto; Cedar Point).
  2. Total regulatory taking? All economically beneficial use eliminated = per se taking (Lucas), unless background principles of property/nuisance law support the restriction.
  3. Partial regulatory taking? Apply Penn Central: economic impact, investment-backed expectations, character of the action.
  4. Exaction? If the government conditions a permit on a dedication of property or payment, apply Nollan/Dolan essential nexus and rough proportionality.
  5. Public use & just compensation: If a taking is found, is there a public use (broadly defined)? Is fair market value paid?
  6. Also consider: Due process (is the regulation arbitrary/irrational?) and equal protection (does it single out particular owners?).

Issue Spotting Checklist

  • Justiciability: Does the plaintiff have standing (injury/causation/redressability)? Is the case ripe? Moot? A political question?
  • Federal power source: If a federal law is challenged, identify the enumerated power (Commerce, Taxing/Spending, War, 13th/14th/15th Enforcement, N&P).
  • 10th Amendment / Commandeering: Does the federal law compel state action?
  • Preemption: Does a federal law preempt the state law (express, field, or conflict)?
  • Dormant Commerce Clause: Does the state law burden interstate commerce? Discriminatory or neutral-but-burdensome? Market participant?
  • Privileges & Immunities (Art. IV): Does the state law discriminate against out-of-state citizens in livelihood or other fundamental activities?
  • State action: Is there government involvement sufficient to trigger constitutional protections?
  • Procedural due process: Is a protected liberty or property interest at stake? What process is due (Mathews)?
  • Substantive due process: Is a fundamental right burdened (strict scrutiny) or a non-fundamental right (rational basis)?
  • Equal protection: Is there a classification? What tier of scrutiny? Is discriminatory intent shown?
  • First Amendment — Speech: Is speech or expressive conduct regulated? Content-based or neutral? What forum? Unprotected category? Prior restraint? Overbreadth/vagueness?
  • First Amendment — Religion: Establishment Clause (historical practices, coercion)? Free Exercise (neutral + generally applicable under Smith, or triggers strict scrutiny)?
  • Takings: Physical taking? Regulatory (total = Lucas; partial = Penn Central)? Exaction (Nollan/Dolan)?
  • Contracts Clause: Does a state law substantially impair existing contractual obligations?
  • 2nd Amendment: Does the regulation implicate the right to keep/bear arms? Historical-tradition analysis under Bruen.
  • Separation of powers: Appointment/removal? Executive privilege? Youngstown categories?

Exam Tips

Structural vs. Rights Issues

When a fact pattern involves a government regulation, always ask two questions: (1) Does the government have the power to act? (2) Does the action violate individual rights? Address both. Power without rights analysis (or vice versa) loses points.

State the Standard, Then Apply

Con Law essays reward precise articulation of standards. For each issue: (1) state the rule (e.g., “Under strict scrutiny, the law must be narrowly tailored to a compelling government interest”); (2) apply the rule to the facts with specificity; (3) state a conclusion. Do not just state the rule abstractly.

Argue Both Sides

Constitutional law questions rarely have clear answers. Examiners want to see you argue both sides. After stating your initial analysis, write “However, the opposing party would argue…” and present the counterargument. This is especially important for intermediate scrutiny and balancing tests (Pike, Penn Central, Mathews).

Level of Scrutiny is Everything

For EP and SDP questions, correctly identifying the level of scrutiny is often outcome-determinative. Strict scrutiny almost always means the law is struck down. Rational basis almost always means the law is upheld. Intermediate scrutiny can go either way. Spend time correctly classifying the right or classification before applying the test.

Watch for Multiple Constitutional Provisions

A single fact pattern may implicate multiple constitutional provisions. A state law banning out-of-state wine shipments could trigger the Dormant Commerce Clause, the Privileges and Immunities Clause, the 21st Amendment, and the Equal Protection Clause. Identify and address each one separately.

California-Specific Points

  • California’s free-speech clause (Art. I, § 2) is broader than the federal First Amendment — applies to private property open to the public (Pruneyard).
  • California’s Proposition 1 (2022) explicitly protects reproductive freedom, including the right to an abortion, in the state constitution.
  • California has enacted Kelo-reform legislation limiting the use of eminent domain for private economic development.
  • California’s equal protection clause has been interpreted to provide broader protections in some contexts (e.g., sexual orientation received heightened scrutiny in state courts before Obergefell).

Mnemonics

Standing: “I.C.R.”

Injury in fact • Causation • Redressability

Commerce Clause Categories: “C.I.S.”

Channels of interstate commerce • Instrumentalities of interstate commerce • Substantial effect on interstate commerce

Spending Power Conditions (South Dakota v. Dole): “G.U.R.N.C.”

General welfare • Unambiguous conditions • Related to federal interest • Not violate other constitutional provisions • Not Coercive

Youngstown Categories: “M.T.L.”

Maximum (Congress authorizes) • Twilight (Congress silent) • Lowest ebb (Congress opposes)

Preemption Types: “E.F.C.”

Express preemption • Field preemption • Conflict preemption (impossibility + obstacle)

Mathews v. Eldridge Factors: “P.R.G.”

Private interest at stake • Risk of erroneous deprivation • Government’s interest in efficiency

Equal Protection Scrutiny Levels: “S.I.R.”

Strict scrutiny (race, national origin, alienage) • Intermediate scrutiny (gender, legitimacy) • Rational basis (everything else)

Obscenity (Miller Test): “P.P.S.”

Prurient interest (community standards) • Patently offensive (state law) • Lacks Serious LAPS value (Literary, Artistic, Political, Scientific — national standard)

Unprotected Speech Categories: “I.F.T.O.C.D.”

Incitement • Fighting words • True threats • Obscenity • Child pornography • Defamation (constitutionally limited)

Takings Analysis: “P.L.P.E.”

Physical taking (per se — Loretto) • Lucas (total wipeout — per se) • Penn Central (partial — balancing) • Exactions (Nollan/Dolan)

Penn Central Factors: “E.I.C.”

Economic impact • Investment-backed expectations • Character of the government action

Key Distinctions

Substantive Due Process vs. Equal Protection

FeatureSubstantive Due ProcessEqual Protection
Focus Whether the government may burden a particular right at all. Whether the government may treat different groups differently.
Trigger Government action burdening a liberty or property interest. Government classification treating people differently.
Strict Scrutiny Trigger Fundamental right is burdened. Suspect classification (race, national origin) or fundamental right burdened by classification.
Key Question “Does the government have a sufficient reason to regulate this right?” “Does the government have a sufficient reason to treat this group differently?”
Constitutional Source 5th Amendment (federal) / 14th Amendment (state) Due Process Clauses. 14th Amendment Equal Protection Clause (state) / 5th Amendment (federal, reverse incorporation).

Content-Based vs. Content-Neutral Speech Regulations

FeatureContent-BasedContent-Neutral
Definition Targets speech based on topic, subject matter, or viewpoint. Targets the time, place, or manner of speech regardless of content.
Standard Strict scrutiny (compelling interest + narrowly tailored). Intermediate scrutiny (significant interest + narrowly tailored + ample alternatives).
Presumption Presumptively unconstitutional. Presumptively valid if it meets the TPM requirements.
Example A law banning “political speech” in a park. A law banning all amplified sound after 10 PM in a park.

Dormant Commerce Clause vs. Privileges & Immunities Clause

FeatureDormant Commerce ClausePrivileges & Immunities (Art. IV)
Source Negative inference from the Commerce Clause (Art. I, § 8). Article IV, § 2.
Protects Interstate commerce (individuals, corporations, goods). Out-of-state citizens (natural persons only) in fundamental activities (earning a livelihood).
Market Participant Exception Yes — state may favor own citizens when acting as buyer/seller. No — no market-participant exception.
Congressional Override Yes — Congress may authorize otherwise discriminatory state laws. No — Congress cannot authorize discrimination against out-of-state citizens under Art. IV.
Covers Corporations? Yes. No — only natural persons (citizens).
Burden Analysis Covers both discrimination and incidental burdens (Pike balancing). Covers only discrimination — no balancing for incidental burdens.

Physical Taking vs. Regulatory Taking

FeaturePhysical TakingRegulatory Taking
Definition Government physically occupies or appropriates private property. Government regulation restricts the use of property without physical occupation.
Analysis Per se taking — always requires just compensation. Per se (Lucas — total wipeout) or Penn Central balancing (partial diminution).
Key Case Loretto v. Teleprompter; Cedar Point Nursery v. Hassid. Penn Central; Lucas v. South Carolina Coastal Council.

Establishment Clause vs. Free Exercise Clause

FeatureEstablishment ClauseFree Exercise Clause
Concern Government promoting or endorsing religion. Government burdening religious practice.
Current Test Historical practices and understandings; coercion analysis (Kennedy v. Bremerton). Neutral + generally applicable law = rational basis (Smith). Not neutral/not generally applicable = strict scrutiny.
Tension Accommodating religion too much may violate the Establishment Clause. Failing to accommodate may violate Free Exercise. The “play in the joints” allows some government discretion.
Key Modern Trend Excluding religious entities from generally available public benefits = Free Exercise violation (Trinity Lutheran; Espinoza; Carson). Laws with secular exemptions that deny religious exemptions are not “generally applicable” and trigger strict scrutiny (Fulton).

Procedural Due Process vs. Substantive Due Process

FeatureProcedural Due ProcessSubstantive Due Process
Question Did the government provide adequate procedures before depriving someone of life, liberty, or property? Does the government have an adequate reason for the deprivation, regardless of the procedures used?
Analysis Step 1: Protected interest? Step 2: Mathews balancing (private interest, risk of error, government interest). Fundamental right: strict scrutiny. Non-fundamental: rational basis.
Remedy More/better procedures (notice, hearing, opportunity to respond). The law itself is struck down as unconstitutional.