Constitutional Law (MBE) Long Outline

CONSTITUTIONAL LAW MASTER TREATISE OUTLINE (MBE)

Constitutional Law on the MBE rewards the examinee who thinks structurally. Every question falls into one of a handful of recurring frames: (1) does the federal government have the power to act; (2) is the state barred from acting by federal supremacy or structure; (3) does an individual right limit the government; and (4) what level of scrutiny applies and who bears the burden. This outline is organized to mirror that analytic sequence — judicial power and justiciability first (because the examiners love to end a question before the merits begin), then the powers of Congress and the President, then federalism limits on states, then the individual-rights superstructure of due process, equal protection, takings, and the First Amendment. Doctrine is stated as current through the Supreme Court's most recent terms, including Dobbs, Students for Fair Admissions, Kennedy v. Bremerton, Counterman, 303 Creative, and Trump v. United States. Master the tiers of scrutiny, the trigger facts for each clause, and the named cases — on the MBE the wrong answers are usually correct statements of law attached to the wrong clause.

I. THE JUDICIAL POWER AND JUSTICIABILITY

A. Article III and Judicial Review

Rule: Article III vests the federal judicial power in one Supreme Court and such inferior courts as Congress establishes, and extends that power only to enumerated cases and controversies — chiefly federal-question cases, cases affecting ambassadors, admiralty, controversies between states, and diversity cases. Marbury v. Madison (1803) established judicial review: federal courts may declare acts of Congress and of the Executive unconstitutional, because it is "emphatically the province and duty of the judicial department to say what the law is." Martin v. Hunter's Lessee and Cohens v. Virginia extended judicial review to state court judgments and state statutes. Federal courts may not issue advisory opinions; there must be an actual dispute between adverse parties and a substantial likelihood that a favorable decision will have real-world effect.

B. Supreme Court Jurisdiction — Original and Appellate

Rule: The Supreme Court's original jurisdiction covers cases affecting ambassadors, public ministers, consuls, and those in which a state is a party; Congress may not enlarge it (the precise holding of Marbury), though Congress may grant concurrent original jurisdiction to lower federal courts (and has, for everything except suits between states). The Court's appellate jurisdiction exists "with such exceptions and under such regulations as Congress shall make" — Congress has broad (though contested at the margins) power to strip appellate jurisdiction, Ex parte McCardle. Today nearly all appellate review is by discretionary certiorari (rule of four). Congress may not, however, dictate the outcome in a pending case by reopening final judgments (Plaut v. Spendthrift Farm), though it may change the underlying law applicable to pending cases.

C. Adequate and Independent State Grounds

Rule: The Supreme Court will not review a state court judgment that rests on an adequate and independent state ground — a state-law basis sufficient by itself to support the result, decided independently of federal law. If the state court's resolution of state law would sustain the judgment regardless of how the federal issue is decided, review would be an advisory opinion. Under Michigan v. Long, if the state opinion is ambiguous about whether it rests on state or federal law, the Court presumes it rests on federal law and will review, unless the state court includes a plain statement that its decision rests on independent state grounds. MBE TIP: A state court may always grant more protection under its own constitution than the federal floor; when it clearly says it is doing so, SCOTUS cannot touch the judgment.

D. Standing

Rule: Constitutional standing requires (1) injury in fact — concrete and particularized, actual or imminent, not conjectural (Lujan v. Defenders of Wildlife; intangible harms must bear a close relationship to traditionally recognized harms, TransUnion v. Ramirez — "no concrete harm, no standing"); (2) causation — injury fairly traceable to the challenged conduct; and (3) redressability — likely to be remedied by a favorable decision. Prudential limits add that a plaintiff generally must assert her own rights, not those of third parties, and may not litigate generalized grievances.

Third-party standing is allowed when (a) the plaintiff has suffered her own injury, (b) there is a close relationship between plaintiff and the third party (doctor–patient, vendor–customer, as in Craig v. Boren), and (c) the third party faces obstacles to asserting her own rights. An organization has standing on behalf of members if (1) members would have standing individually, (2) the interests are germane to the organization's purpose, and (3) neither the claim nor relief requires individual member participation (Hunt v. Washington Apple).

Taxpayer standing is generally barred as a generalized grievance (Frothingham), with one narrow exception: a federal taxpayer may challenge congressional spending under the Establishment Clause (Flast v. Cohen). The exception does not reach executive discretionary spending (Hein), property transfers (Valley Forge), or state tax credits (Winn). A taxpayer always has standing to challenge her own tax bill. Legislators lack standing for institutional injuries to the legislature absent vote nullification (Raines v. Byrd). States get "special solicitude" in some sovereignty suits (Massachusetts v. EPA) but cannot sue merely as parens patriae against the federal government.

MBE TIP: The single most-tested standing fact pattern is the ideologically offended bystander — a citizen who is angry about government action but suffers no personalized injury. The answer is "dismissed for lack of standing," and it beats every merits answer on the page.

E. Ripeness and Mootness

Rule (ripeness): A claim is unripe if it rests on contingent future events. Pre-enforcement review requires (1) fitness of the issues for judicial decision (purely legal questions are fit) and (2) hardship to the parties from withholding review (Abbott Laboratories v. Gardner). A plaintiff facing a credible threat of prosecution need not violate the law first (Susan B. Anthony List v. Driehaus).

Rule (mootness): A live controversy must exist at all stages, not just at filing. Exceptions: (1) capable of repetition yet evading review — injury too short in duration to be fully litigated and a reasonable expectation the same plaintiff will face it again (pregnancy in Roe; election disputes); (2) voluntary cessation — defendant's stopping the conduct does not moot the case unless it is absolutely clear the wrong cannot reasonably recur; (3) class actions — a named plaintiff's claim becoming moot does not moot the certified class. Collateral consequences (e.g., of a criminal conviction after the sentence is served) also keep a case alive.

F. Political Question Doctrine

Rule: A claim is a nonjusticiable political question when there is (1) a textually demonstrable constitutional commitment of the issue to a coordinate branch, or (2) a lack of judicially discoverable and manageable standards (Baker v. Carr's leading factors). Classic political questions: the Guarantee Clause (republican form of government, Luther v. Borden); impeachment procedures (Nixon v. United States — the Senate's "sole power to try"); recognition of foreign governments and treaty termination; and partisan gerrymandering (Rucho v. Common Cause — no manageable standards in federal court). NOT political questions: legislative apportionment/one-person-one-vote (Baker v. Carr), racial gerrymandering, congressional exclusion of a duly elected member (Powell v. McCormack), and presidential papers/privilege disputes.

G. Eleventh Amendment and Sovereign Immunity

Rule: The Eleventh Amendment (and the broader structural immunity it reflects, Hans v. Louisiana; Alden v. Maine extending it to state courts) bars private suits for damages against a state in federal court — by citizens of other states and the state's own citizens alike. It protects states and state agencies, not municipalities, counties, or other political subdivisions.

Exceptions: (1) Ex parte Young — suits against state officers for prospective injunctive relief to stop ongoing violations of federal law (but not retroactive monetary relief from the treasury, Edelman v. Jordan); (2) officer suits for damages payable personally; (3) express waiver/consent by the state; (4) congressional abrogation under Section 5 of the Fourteenth Amendment with an unmistakably clear statement (Fitzpatrick v. Bitzer) — Congress may NOT abrogate using Article I powers (Seminole Tribe), except the Bankruptcy Clause (Katz) and, via the "plan of the Convention," eminent domain and war powers (PennEast; Torres v. Texas DPS); (5) suits by the United States or by another state; (6) appellate review of state criminal judgments. MBE TIP: If the plaintiff sues "the State Department of Corrections" for damages, the suit is barred; renamed as a suit against "Warden Smith in her official capacity for an injunction," it proceeds under Ex parte Young.

H. Abstention

Rule: Under Pullman abstention, a federal court may stay its hand when an unsettled question of state law might moot or narrow the federal constitutional issue. Under Younger abstention, federal courts will not enjoin pending state criminal prosecutions (or certain quasi-criminal/contempt proceedings) absent proven harassment or bad-faith prosecution; the defendant must raise his federal defenses in the state proceeding. Burford abstention protects complex state administrative schemes. ESSAY WRITING TIP: Always run justiciability as a checklist before the merits — standing, ripeness, mootness, political question, sovereign immunity, abstention — and say explicitly which doctrines are satisfied; graders award points for the ones you dismiss correctly in a sentence each.

II. THE LEGISLATIVE POWER — CONGRESS

A. Enumerated Powers Generally; Necessary and Proper

Rule: Congress has no general police power; every federal statute must be traced to an enumerated power (the only quasi-police powers are over the District of Columbia, federal lands, the military, and immigration). Under the Necessary and Proper Clause, Congress may choose any means rationally related to a legitimate end within an enumerated power — "let the end be legitimate … and all means which are appropriate" (McCulloch v. Maryland). The clause is a force-multiplier, never a freestanding power: an answer choice resting on "necessary and proper" alone is wrong; it must ride on another power.

B. The Commerce Power

Rule: Under the Commerce Clause Congress may regulate three categories (United States v. Lopez): (1) the channels of interstate commerce (highways, waterways, the internet); (2) the instrumentalities of, and persons and things in, interstate commerce (trucks, planes, goods in transit); and (3) activities that substantially affect interstate commerce. For category three, if the regulated activity is economic or commercial, courts aggregate its effects across all actors (Wickard v. Filburn — homegrown wheat; Gonzales v. Raich — homegrown marijuana as part of a comprehensive regulatory scheme), and rational basis review applies. If the activity is noneconomic (gun possession near schools, Lopez; gender-motivated violence, United States v. Morrison), aggregation is unavailable and the statute falls absent a jurisdictional element tying each instance to interstate commerce.

Limit: The commerce power reaches activity only; Congress may not compel individuals to engage in commerce (the individual mandate holding of NFIB v. Sebelius — though the mandate survived as a tax). The Civil Rights Act public-accommodation cases (Heart of Atlanta Motel; Katzenbach v. McClung) confirm that local establishments serving interstate travelers or buying interstate goods are reachable. MBE TIP: When a federal statute regulates anything bought, sold, manufactured, or transported, the commerce power answer is almost always correct; it fails only on Lopez/Morrison facts — noneconomic, traditionally local conduct with no jurisdictional hook.

C. Taxing Power

Rule: Congress may tax to raise revenue; a tax is valid if it in fact raises revenue (objective test) or was intended to, even if it also regulates and even if Congress could not regulate the conduct directly (NFIB v. Sebelius — a "tax" so long as it is not so punitive that it becomes a penalty: factors include modest amount, no scienter requirement, IRS collection). Direct taxes must be apportioned; the Sixteenth Amendment exempts income taxes. Indirect taxes (duties, imposts, excises) need only be geographically uniform. Congress may not tax exports from any state.

D. Spending Power and Conditions — Dole

Rule: Congress may spend for the general welfare — a power broader than its regulatory powers (it may "purchase" compliance it could not command). Conditions on grants to states are valid under South Dakota v. Dole if they are (1) in pursuit of the general welfare, (2) unambiguous, so states can choose knowingly (clear-statement rule, Pennhurst), (3) related ("germane") to the federal interest in the program, (4) not otherwise unconstitutional (no inducing states to violate individual rights), and (5) not coercive — pressure must not become compulsion. In NFIB v. Sebelius, threatening all existing Medicaid funds (roughly 10% of state budgets) to force expansion was an unconstitutional "gun to the head"; Dole's 5% of highway funds was permissible encouragement. EXAMPLE: Congress conditions 5% of education funds on states adopting a uniform curriculum — valid; conditioning 100% of all federal health funds on adopting an unrelated gun law — likely coercive and non-germane.

E. War, Foreign Affairs, Citizenship, and Property Powers

Rule: Congress declares war, raises and supports armies, and may legislate for postwar remediation (rent control after wartime, Woods v. Cloyd Miller). It has plenary power over naturalization and immigration — alienage classifications by Congress get only rational basis review (Mathews v. Diaz) — but may not strip citizenship without voluntary renunciation (Afroyim v. Rusk). Under the Property Clause (Art. IV, §3) Congress has plenary authority over federal lands and property, including wildlife on them and disposal of property on any terms. Congress also has plenary power over the District of Columbia, post offices, bankruptcy, coinage, and patents/copyrights.

F. Enforcement Powers — Thirteenth, Fourteenth, Fifteenth Amendments

Rule: Section 2 of the Thirteenth Amendment lets Congress legislate against slavery and its "badges and incidents," and uniquely reaches purely private conduct (e.g., private racial discrimination in contracts and property, Jones v. Alfred H. Mayer). Section 5 of the Fourteenth Amendment empowers Congress to enforce — not redefine — Fourteenth Amendment rights against state actors only (Morrison): legislation must show congruence and proportionality between the injury to be prevented and the means adopted (City of Boerne v. Flores, striking RFRA as applied to states). A documented history of state constitutional violations supports prophylactic legislation (family-leave provisions of FMLA, Hibbs; courthouse access under ADA Title II, Lane); thin records doom it (Kimel — age; Garrett — disability employment). The Fifteenth Amendment supports voting-rights legislation, though preclearance's coverage formula was held outdated in Shelby County v. Holder. MBE TIP: A federal statute regulating private race discrimination cannot rest on §5 of the Fourteenth Amendment — pick the Thirteenth Amendment or the Commerce Clause instead.

G. Delegation and the Legislative Veto

Rule: Congress may delegate legislative-type power to agencies if it supplies an intelligible principle to guide discretion — a famously lenient test (only two 1935 statutes have ever failed it), though the major questions doctrine (West Virginia v. EPA) now requires clear congressional authorization for agency decisions of vast economic and political significance. Congress may not delegate to itself or its officers executive functions (Bowsher v. Synar). The legislative veto is unconstitutional: any congressional action that is legislative in character — altering legal rights and duties of persons outside Congress — must comply with bicameralism (passage by both houses) and presentment (to the President for signature or veto) (INS v. Chadha). One-house or two-house resolutions purporting to override executive action are invalid. EXAMPLE: A statute lets either chamber, by resolution, cancel an agency rule — unconstitutional under Chadha no matter how sensible. Likewise the line-item veto, which let the President amend statutes unilaterally, violated presentment (Clinton v. New York). Members of Congress enjoy Speech or Debate Clause immunity for legislative acts (not for press releases or bribery itself).

III. THE EXECUTIVE POWER

A. The Youngstown Framework and Executive Orders

Rule: The President's "executive power" includes enforcing federal law, but he has no general lawmaking power. Domestic executive action is measured by Justice Jackson's Youngstown Sheet & Tube v. Sawyer concurrence: (1) acting with express or implied congressional authorization, presidential power is at its maximum (his own powers plus all Congress can delegate); (2) in the face of congressional silence, there is a "zone of twilight" where concurrent authority and historical practice ("gloss") control; (3) acting contrary to the express or implied will of Congress, power is at its lowest ebb — the act survives only if the President's exclusive constitutional power overrides Congress. In Youngstown itself, Truman's seizure of the steel mills fell in category three and was invalid. Executive orders are valid only if grounded in a statute or the Constitution. The Take Care Clause obliges faithful execution; the President may decline to enforce statutes he believes unconstitutional at his political peril, but may not impound (refuse to spend) clearly appropriated funds in defiance of statute (Train v. City of New York).

B. Appointment and Removal

Rule (appointment): The President appoints principal officers (ambassadors, Justices, cabinet secretaries, agency heads) with Senate advice and consent. Congress may vest appointment of inferior officers (those directed and supervised by principal officers — e.g., independent counsel, Morrison v. Olson) in the President alone, the courts, or heads of departments — never in Congress itself or its officers (Buckley v. Valeo). Anyone exercising significant authority under federal law is an "officer" who must be properly appointed (ALJs, Lucia). The President may make recess appointments only during Senate recesses of ten days or more (NLRB v. Noel Canning).

Rule (removal): Removal power is the President's by default; Congress may not reserve removal to itself except by impeachment (Bowsher; Myers v. United States — Congress cannot require Senate consent to remove purely executive officers). Congress may impose "for cause" limits on removal of (1) multimember, expert, balanced commissions exercising quasi-legislative/quasi-judicial power (Humphrey's Executor, now read narrowly) and (2) inferior officers with limited duties (Morrison). It may NOT (a) protect a single director heading an agency with significant executive power (Seila Law v. CFPB; Collins v. Yellen) or (b) stack two layers of for-cause protection between the President and an officer (Free Enterprise Fund v. PCAOB). MBE TIP: "Congress retains the power to remove the officer by joint resolution" is always unconstitutional; "the statute permits removal only for inefficiency, neglect, or malfeasance" is constitutional only for the traditional multimember-commission structure.

C. Veto and Pardon

Rule: The President has ten days (excluding Sundays) to sign or veto a bill; a veto is overridden by two-thirds of each house. If he does nothing and Congress remains in session, the bill becomes law; if Congress has adjourned so return is impossible, it is pocket vetoed. No line-item veto (Clinton v. New York). The pardon power reaches all federal offenses (including pre-charge and conditional pardons and commutations) but not state crimes, civil liability, or impeachment. Congress cannot limit it.

D. Foreign Affairs, Treaties, and Executive Agreements

Rule: The President is the "sole organ" of foreign relations in the sense of recognition and diplomacy: the recognition power is exclusive (Zivotofsky v. Kerry — Congress cannot force the State Department to contradict the President's recognition position). Treaties require two-thirds Senate consent; a self-executing treaty is supreme federal law, and the later-in-time rule governs treaty/statute conflicts (last expression of sovereign will controls); non-self-executing treaties bind domestically only after implementing legislation (Medellín v. Texas). The President may terminate treaties without Senate consent (justiciability doubtful, Goldwater v. Carter). Executive agreements require no Senate approval; they prevail over conflicting state law (Belmont; Pink; Garamendi) but, unlike treaties, probably not over conflicting federal statutes. Settlement of claims with foreign nations by executive agreement is supported by long congressional acquiescence (Dames & Moore v. Regan).

E. Commander in Chief and War

Rule: The President commands the armed forces and may repel sudden attacks without a declaration of war (The Prize Cases); Congress declares war, funds the military, and makes rules of capture and military regulation. The President may not unilaterally create military commissions inconsistent with the UCMJ and Geneva Conventions (Hamdan v. Rumsfeld). U.S. citizens detained as enemy combatants are entitled to due process — notice and a meaningful opportunity to contest before a neutral decisionmaker (Hamdi v. Rumsfeld); Guantánamo detainees have constitutional habeas rights (Boumediene). Courts treat the conduct of hostilities largely as a political question.

F. Executive Privilege and Immunity; Impeachment

Rule: Executive privilege for presidential communications is presumptive, not absolute: it yields to a demonstrated, specific need for evidence in a criminal trial (United States v. Nixon). Congressional subpoenas for personal presidential records require balancing under Trump v. Mazars; state grand juries may subpoena a sitting President's records without a heightened-need showing (Trump v. Vance). Civil immunity: the President has absolute immunity from civil damages for official acts within the "outer perimeter" of his duties (Nixon v. Fitzgerald) but none for pre-presidential, unofficial conduct, and litigation may proceed while in office (Clinton v. Jones). Criminal immunity: under Trump v. United States (2024), a former President has absolute immunity from prosecution for exercise of core, conclusive and preclusive constitutional powers, presumptive immunity for other official acts, and no immunity for unofficial acts; official-act evidence generally may not be used to prove unofficial-act crimes. Aides receive qualified immunity (Harlow). Impeachment: the House impeaches by majority for treason, bribery, or high crimes and misdemeanors; the Senate convicts by two-thirds; the remedy is removal and possible disqualification — and the Senate's choice of trial procedures is a nonjusticiable political question (Nixon v. United States). EXAMPLE: A President orders the Justice Department to drop an investigation (core prosecutorial supervision — absolutely immune) versus pressuring a private business partner before taking office (unofficial — no immunity).

IV. FEDERALISM — LIMITS ON STATE AND FEDERAL POWER

A. Tenth Amendment and Anti-Commandeering

Rule: Powers not delegated to the United States are reserved to the states. Congress may regulate states as market actors under generally applicable laws (FLSA applies to state employers, Garcia v. SAMTA) but may not commandeer the states' legislative or executive machinery: it cannot compel state legislatures to enact or administer a federal regulatory program (New York v. United States — "take title" provision invalid) and cannot conscript state executive officers to implement federal law (Printz v. United States — Brady Act background checks; Murphy v. NCAA — Congress equally may not prohibit states from legalizing sports betting, because anti-commandeering bars federal orders to state legislatures whether affirmative or negative). Congress MAY: attach conditions on spending (Dole), offer states a choice between regulating under federal standards and federal preemption ("cooperative federalism"), and regulate state activities directly through generally applicable laws. It may also regulate the states' own conduct when the statute regulates them as owners of databases or market participants (Reno v. Condon — DPPA valid because it regulates states as suppliers of information, not as sovereigns regulating citizens).

B. Preemption and the Supremacy Clause

Rule: Valid federal law is supreme. Express preemption exists where a statute says so (construed narrowly, with a presumption against preemption in fields of traditional state regulation). Implied preemption takes three forms: (1) field preemption — federal regulation so pervasive, or the federal interest so dominant, that Congress occupied the field (immigration registration, Arizona v. United States; nuclear safety); (2) conflict (impossibility) preemption — compliance with both is physically impossible; (3) obstacle preemption — state law stands as an obstacle to the full accomplishment of congressional objectives. States may not tax or directly regulate the federal government or its instrumentalities (McCulloch — "the power to tax involves the power to destroy"); they may impose nondiscriminatory, indirect burdens (taxing the income of federal employees is fine).

C. Dormant Commerce Clause

Rule: The Commerce Clause, by negative implication, bars state laws that (1) discriminate against interstate commerce on their face, in purpose, or in effect, or (2) impose burdens on interstate commerce that are clearly excessive relative to putative local benefits (Pike v. Bruce Church balancing). Discriminatory laws are virtually per se invalid: they survive only if the state proves they serve a legitimate local purpose (not economic protectionism) that cannot be served by nondiscriminatory alternatives (Philadelphia v. New Jersey — waste import ban invalid; the rare survivor: Maine v. Taylor — baitfish import ban upheld to prevent parasites). Discrimination includes hoarding local resources (Hughes v. Oklahoma — minnows), forcing local processing (C&A Carbone — private facility flow control; contrast United Haulers — flow control favoring a public facility is not discrimination), and price-affirmation/extraterritorial regulation. Nondiscriminatory laws (e.g., truck-length limits, Kassel) get Pike balancing and usually survive unless the safety rationale is illusory. National Pork Producers v. Ross (2023) confirms there is no freestanding "extraterritorial effects" per se rule for nondiscriminatory laws.

Exceptions: (1) Congressional consent — Congress may authorize states to discriminate (insurance under McCarran-Ferguson) because the limit is only an inference from congressional silence; (2) market participant — a state buying, selling, hiring, or subsidizing as a market actor may favor its own residents (Reeves v. Stake — state cement plant; White — city construction hiring; limit: the state may not impose conditions with downstream regulatory effect beyond the market in which it participates, South-Central Timber v. Wunnicke); (3) traditional government functions — favoring public entities performing traditional functions (United Haulers; municipal-bond tax exemption, Davis). MBE TIP: The market-participant exception defeats a dormant Commerce Clause claim but NOT an Article IV Privileges and Immunities claim (United Building & Construction Trades v. Camden) — examiners love this trap.

D. State Taxation of Interstate Commerce

Rule: Under Complete Auto Transit v. Brady, a state tax on interstate commerce is valid if (1) there is a substantial nexus between the taxed activity and the state (physical presence not required — economic and virtual contacts suffice, South Dakota v. Wayfair), (2) the tax is fairly apportioned to in-state activity, (3) it does not discriminate against interstate commerce, and (4) it is fairly related to services the state provides. Ad valorem property taxes may not be imposed on goods merely in transit; instrumentalities (trucks, rail cars) may be taxed on an apportioned basis.

E. Privileges and Immunities — Article IV vs. Fourteenth Amendment

Rule (Art. IV Comity Clause): A state may not discriminate against out-of-state citizens with respect to fundamental rights or important economic activities — chiefly the pursuit of a livelihood (commercial fishing licenses, Toomer v. Witsell; bar admission, Piper; private employment preferences, Camden) and access to courts. Discrimination is invalid unless the state shows a substantial reason — that nonresidents are a peculiar source of the evil — and a substantial relationship between the discrimination and that reason, considering less restrictive alternatives. NOT protected: recreational pursuits (elk-hunting licenses, Baldwin) and reduced in-state tuition. Corporations and aliens are not "citizens" and cannot invoke the clause (they use the dormant Commerce Clause or Equal Protection instead). No market-participant exception.

Rule (14th Am. Privileges or Immunities): Nearly a dead letter after the Slaughter-House Cases, protecting only rights of national citizenship — and on the MBE it is almost always a wrong answer, with one famous exception: the right to travel/right of new residents to be treated equally (durational-residency welfare discrimination invalid, Saenz v. Roe).

F. Full Faith and Credit; Interstate Relations

Rule: A state must give a sister-state judgment the same effect it has where rendered, provided the rendering court had jurisdiction, the judgment is final, and it was on the merits. The clause is far weaker for statutes: a forum may apply its own law if it has significant contacts creating a legitimate interest. The Compact Clause requires congressional consent only for agreements that increase state power at federal expense.

V. STATE ACTION

A. The Requirement and Its Two Doctrines

Rule: The Constitution (except the Thirteenth Amendment) restrains only government action; private conduct must be attributable to the state. Two main routes: (1) Public function — a private entity performs a function traditionally and exclusively reserved to the state: company towns (Marsh v. Alabama), elections/white primaries (Terry v. Adams); NOT shopping centers (Hudgens), utilities (Jackson v. Metropolitan Edison), or public-access cable channels (Halleck). (2) Entanglement/nexus — the state significantly involves itself in, compels, or jointly participates in the private conduct: judicial enforcement of racially restrictive covenants (Shelley v. Kraemer), symbiotic lessor–lessee relationships (Burton v. Wilmington Parking Authority — restaurant in public garage), peremptory strikes by private litigants (Edmonson), and pervasive entwinement of public institutions and officials with a nominally private association (Brentwood Academy — state athletic association). NOT enough: heavy regulation plus licensing (Moose Lodge), public funding alone (Rendell-Baker; Blum), or granting a monopoly. MBE TIP: When a private actor discriminates and no statute applies, the constitutional claim fails for want of state action — but remember Congress can still reach private racial discrimination via the Thirteenth Amendment or commerce power.

VI. DUE PROCESS

A. Incorporation

Rule: The Fourteenth Amendment Due Process Clause incorporates against the states virtually all Bill of Rights guarantees deemed fundamental to ordered liberty — most recently the Second Amendment (McDonald v. Chicago), the Excessive Fines Clause (Timbs v. Indiana), and unanimous criminal juries (Ramos v. Louisiana). NOT incorporated: the Fifth Amendment grand jury right and the Seventh Amendment civil jury right. The Fifth Amendment's Due Process Clause binds the federal government and carries an equal protection component (Bolling v. Sharpe — "reverse incorporation").

B. Procedural Due Process

Rule: When government deliberately deprives a person of life, liberty, or property, it must provide fair procedures. Property means more than money — any benefit to which there is a legitimate claim of entitlement created by statute, contract, or custom: tenured public employment (Roth/Perry v. Sindermann; an at-will employee has no property interest), welfare benefits (Goldberg v. Kelly), continued public education (Goss v. Lopez), a driver's license. Liberty includes freedom from bodily restraint and physical harm, the rights to contract, marry, raise children — and freedom from government-imposed stigma plus an alteration of legal status ("stigma-plus," Paul v. Davis — defamation alone is not a liberty deprivation). Merely negligent deprivation is not a due process violation (Daniels v. Williams).

Rule (what process is due): Balance the Mathews v. Eldridge factors: (1) the private interest affected; (2) the risk of erroneous deprivation under current procedures and the probable value of added safeguards; (3) the government's interest, including fiscal and administrative burdens. Applications: welfare termination requires a pre-termination evidentiary hearing (Goldberg); disability benefits require only a post-termination hearing (Mathews); tenured public employees get pre-termination notice and an opportunity to respond plus a fuller post-termination hearing (Cleveland Board of Education v. Loudermill); short school suspensions require informal notice and a chance to explain (Goss); prejudgment attachment generally requires notice and pre-deprivation hearing (Connecticut v. Doehr), with emergency-seizure exceptions for exigency. Due process also demands an unbiased decisionmaker — actual bias or a serious risk of it (pecuniary interest, Tumey; outsized campaign contributions, Caperton) — and punitive damages that are not grossly excessive (guideposts of BMW v. Gore; single-digit ratios usually mark the limit, State Farm v. Campbell). EXAMPLE: A state revokes a medical license without any hearing because of "administrative convenience" — invalid; convenience never outweighs a profound private interest plus high error risk.

C. Substantive Due Process — Framework

Rule: Laws infringing fundamental rights — those "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty" (Washington v. Glucksberg) — get strict scrutiny: the government must prove the law is necessary (narrowly tailored, least restrictive means) to a compelling interest. All other liberty or economic interests get rational basis: the challenger must prove the law is not rationally related to any conceivable legitimate interest. Since the demise of Lochner (see Williamson v. Lee Optical; Carolene Products), economic and social-welfare regulation virtually always survives rational basis.

D. The Fundamental Rights Catalogue

Rule: Fundamental: marriage (Loving; Zablocki; Obergefell — including same-sex marriage, now also codified federally for recognition purposes); contraception (Griswold; Eisenstadt); procreation (Skinner); private consensual intimacy (Lawrence v. Texas); parental rights to direct children's upbringing and education (Meyer; Pierce v. Society of Sisters; Troxel v. Granville — special weight to fit parents' decisions on grandparent visitation); living with extended family (Moore v. City of East Cleveland — zoning cannot define "family" to exclude grandchildren; contrast unrelated persons, Belle Terre); refusal of unwanted medical treatment by competent adults (Cruzan — but states may demand clear and convincing evidence of an incompetent patient's wishes); interstate travel (durational residency requirements for vital benefits get strict scrutiny — one-year welfare wait invalid, Shapiro/Saenz; 50-day voter registration cutoffs OK; one-year wait for divorce jurisdiction OK, Sosna); voting (analyzed under equal protection, below). NOT fundamental: abortion — Dobbs v. Jackson Women's Health (2022) overruled Roe and Casey; abortion regulation now receives rational basis review and is left to the political process; physician-assisted suicide (Glucksberg); education (Rodriguez); housing; government employment. MBE TIP: Post-Dobbs, an answer choice applying "undue burden" analysis to an abortion statute is wrong; the credited analysis is rational basis.

ESSAY WRITING TIP: When a law burdens family or intimacy interests, argue both substantive due process and equal protection — they share the fundamental-rights strict scrutiny engine, and graders credit the parallel analysis if you flag which clause fits (all persons burdened = due process; classification among persons = equal protection).

VII. EQUAL PROTECTION

A. Framework and Proof of Discrimination

Rule: Equal protection scrutiny attaches to government classifications. Three tiers: (1) strict scrutiny (race, national origin, sometimes alienage; fundamental rights): government proves narrow tailoring to a compelling interest; (2) intermediate scrutiny (gender, nonmarital children): government proves a substantial relationship to an important interest — for gender, an "exceedingly persuasive justification" (United States v. Virginia (VMI)); (3) rational basis (everything else — age, wealth, disability, sexual orientation formally): challenger proves no rational relationship to any conceivable legitimate purpose. A facially neutral law triggers heightened scrutiny only on proof of both discriminatory purpose AND disparate impact (Washington v. Davis; Arlington Heights factors: impact, history, departures from procedure, legislative statements). Impact alone is insufficient; purpose may also be shown by discriminatory administration of a neutral law (Yick Wo v. Hopkins). Distinguish facial challenges (law invalid in all applications) from as-applied challenges (invalid as to this plaintiff).

B. Race and National Origin; Affirmative Action

Rule: ALL racial classifications — benign or invidious, federal or state — receive strict scrutiny (Korematsu, repudiated in Trump v. Hawaii; Adarand). Segregation is per se invalid (Brown v. Board); de jure segregation may be remedied by busing, but only proven intentional (de jure) segregation triggers a remedial duty. Race-based peremptories violate equal protection (Batson). Affirmative action: remedying the government's own proven past discrimination can be compelling; generalized "societal discrimination" cannot (Croson). In higher education, Students for Fair Admissions v. Harvard/UNC (2023) held race-conscious admissions programs unlawful — racial preferences lacked measurable objectives, used race negatively, and stereotyped; universities may consider an applicant's discussion of how race affected her life tied to individual qualities, but may not use race qua race. Racial gerrymandering — districts drawn with race as the predominant factor — gets strict scrutiny (Shaw v. Reno; Miller v. Johnson).

C. Alienage

Rule: State discrimination against lawfully present aliens generally receives strict scrutiny (welfare, Graham v. Richardson; civil service, bar admission, notary licenses all invalid) — EXCEPT the political function exception: rational basis applies to positions bound up with self-government and the democratic process — police officers (Foley), public-school teachers (Ambach), probation officers, voting, elective office. Federal alienage classifications get only rational basis because of plenary immigration power (Mathews v. Diaz). Undocumented status is not suspect, but denying free public education to undocumented children fails even heightened rational basis (Plyler v. Doe).

D. Gender and Legitimacy

Rule: Gender classifications require an exceedingly persuasive justification, substantially related to important objectives, and may not rest on overbroad generalizations or stereotypes about the sexes (VMI; Craig v. Boren — 3.2% beer; Orr — alimony for wives only invalid; Mississippi Univ. for Women v. Hogan). Classifications survive when they remedy past discrimination against women (Califano v. Webster) or reflect real biological differences (statutory rape, Michael M.; draft registration, Rostker). Nonmarital children (legitimacy) classifications get intermediate scrutiny: states may not bar inheritance from fathers entirely (Trimble) but may impose reasonable proof-of-paternity requirements (Lalli). Age, wealth/poverty, and disability are NOT suspect — rational basis (Murgia; Rodriguez; Cleburne — though animus toward the intellectually disabled flunked even rational basis: "a bare desire to harm a politically unpopular group" is never legitimate, see also Romer v. Evans; Moreno).

E. Fundamental Rights Strand — Voting, Ballot Access, Court Access

Rule: Voting is fundamental: denials or severe restrictions get strict scrutiny — poll taxes invalid (Harper), property-ownership requirements for general elections invalid (Kramer; narrow exception for special-purpose water districts, Salyer). One person, one vote applies to congressional districts (near-mathematical equality, Wesberry/Karcher) and state/local districts (substantial equality; under ~10% total deviation presumptively valid, Reynolds v. Sims); total population is a permissible apportionment base (Evenwel). Nonsevere, nondiscriminatory regulations of the electoral mechanics (voter ID, Crawford) get a flexible Anderson/Burdick balancing weighted toward the state. Ballot access restrictions must be reasonable and nondiscriminatory; early filing deadlines and unequal burdens on new parties have fallen. Counting votes by arbitrary, standardless recounts violates equal protection (Bush v. Gore). Court access: states must waive fees that block fundamental interests of indigents — divorce filing fees (Boddie), trial transcripts for appeal (Griffin), counsel on first appeal of right (Douglas), paternity blood tests (Little v. Streater), and fees to appeal termination of parental rights (M.L.B. v. S.L.J.) — but not bankruptcy fees (Kras) or welfare appeal fees. MBE TIP: Education and welfare are not fundamental rights; wealth is not suspect — so school-funding disparities get rational basis (San Antonio v. Rodriguez).

VIII. TAKINGS, CONTRACTS CLAUSE, AND RETROACTIVITY

A. Takings — The Framework

Rule: The Fifth Amendment (incorporated) forbids taking private property for public use without just compensation. Analyze: (1) Is there property? (includes easements, trade secrets, interest on funds, equity in a tax-foreclosed home — Tyler v. Hennepin County (2023): keeping surplus sale proceeds beyond the tax debt is a taking); (2) Is there a taking — per se or regulatory?; (3) Is it for public use?; (4) Was just compensation paid?

Per se takings: (a) permanent physical occupation, however trivial (Loretto — cable box; Cedar Point Nursery v. Hassid (2021) — a regulation granting unions a right to enter farm property appropriates a right to invade and is a per se physical taking); (b) total deprivation of all economically beneficial use (Lucas v. South Carolina Coastal Council — beachfront building ban; exception: restrictions inherent in background principles of state property and nuisance law take nothing). A temporary moratorium is not automatically a Lucas taking (Tahoe-Sierra).

Regulatory takings: everything else is governed by the Penn Central ad hoc factors: (1) the economic impact on the claimant; (2) interference with distinct investment-backed expectations; (3) the character of the government action (physical invasion vs. public-program adjustment). Denominator rule: the parcel as a whole, assessed flexibly (Murr v. Wisconsin). Zoning that merely diminishes value (even by 75%+) is normally not a taking (Euclid; Hadacheck).

Exactions: conditions on land-use permits must have an essential nexus to a legitimate state interest (Nollan v. California Coastal Commission) and rough proportionality to the development's impact (Dolan v. City of Tigard); the doctrine covers monetary exactions (Koontz) and legislatively imposed fees (Sheetz v. County of El Dorado (2024)).

Public use and compensation: "public use" means any conceivable public purpose, including economic redevelopment transferring property to private developers (Kelo v. City of New London; Berman; Midkiff). Just compensation = fair market value at the time of the taking, measured by the owner's loss, not the government's gain. Property owners may sue directly in federal court without first exhausting state compensation litigation (Knick v. Township of Scott). EXAMPLE: A city ordinance requires landlords to allow installation of broadband equipment — per se Loretto taking requiring (perhaps tiny) compensation; an ordinance capping rents — at most Penn Central review, almost always upheld.

B. Contracts Clause

Rule: Article I, §10 bars states (not the federal government, and not courts) from retroactively impairing existing contracts. Substantial impairment of private contracts is valid if reasonable and necessary to serve a significant and legitimate public purpose (mortgage moratorium upheld, Home Building & Loan v. Blaisdell; Sveen v. Melin). Impairment of the state's own contracts receives stricter scrutiny — courts will not defer to the state's self-interested judgment of necessity (United States Trust v. New Jersey). Prospective regulation of future contracts is never a Contracts Clause problem.

C. Ex Post Facto, Bills of Attainder, Retroactivity

Rule: The Ex Post Facto Clauses (binding both state and federal governments) bar only retroactive criminal laws that (1) criminalize previously innocent conduct, (2) increase punishment after the fact, or (3) reduce the evidence required to convict (Calder v. Bull categories). Civil-regulatory measures (sex-offender registration, Smith v. Doe; deportation) are not ex post facto unless punitive in purpose or effect. A bill of attainder is a legislative act inflicting punishment on named or easily identifiable individuals without judicial trial (both governments barred; United States v. Lovett; Nixon v. GSA — not attainder where nonpunitive). Retroactive civil economic legislation needs only a rational basis (Usery v. Turner Elkhorn). MBE TIP: "Ex post facto" answers are wrong whenever the statute is civil — redirect to due process or the Contracts Clause.

IX. FIRST AMENDMENT — SPEECH, PRESS, AND ASSOCIATION

A. Content-Based vs. Content-Neutral

Rule: A law is content-based if it applies to speech because of the topic discussed or the idea or message expressed — on its face or in justification (Reed v. Town of Gilbert). Content-based laws (and the worse subset, viewpoint-based laws, which are virtually always invalid even in nonpublic forums, Matal v. Tam; Iancu v. Brunetti) receive strict scrutiny. Content-neutral laws regulating the time, place, or manner of speech receive intermediate scrutiny: narrowly tailored to serve a significant government interest (not necessarily least-restrictive, but not substantially broader than necessary, Ward v. Rock Against Racism) and leaving open ample alternative channels. A regulation justified without reference to content (secondary effects of adult theaters, Renton) is treated as content-neutral. Speaker-based and exemption-riddled laws are suspect as covert content discrimination.

B. Unprotected and Less-Protected Categories

Rule (incitement): Advocacy of illegal action may be punished only if it is (1) directed to inciting imminent lawless action and (2) likely to produce such action (Brandenburg v. Ohio). Abstract teaching of violence is protected (Hess; Claiborne Hardware).

Rule (fighting words): Face-to-face personal insults likely to provoke an immediate violent response from the addressee (Chaplinsky) — a category upheld in theory but essentially never in practice; statutes regulating them must not be viewpoint-selective even within the unprotected category (R.A.V. v. St. Paul — cross-burning ordinance targeting racial hostility invalid; contrast Virginia v. Black — banning cross burning with intent to intimidate valid as a true-threat regulation, but a presumption of intent from the burning alone is not). There is no "hostile audience" veto: police must control the crowd before silencing the speaker (Terminiello; Feiner marks the narrow exception of imminent riot).

Rule (true threats): Serious expressions of intent to commit unlawful violence are unprotected; the First Amendment requires at least recklessness — the speaker consciously disregarded a substantial risk his words would be viewed as threatening (Counterman v. Colorado (2023)).

Rule (obscenity): Under Miller v. California, material is obscene if (1) the average person, applying contemporary community standards (local, not national), finds it appeals to the prurient interest; (2) it depicts sexual conduct in a patently offensive way as defined by state law; and (3) taken as a whole it lacks serious literary, artistic, political, or scientific value (judged by a national reasonable-person standard, Pope v. Illinois). Private possession of obscenity at home is protected (Stanley v. Georgia) — but not receipt, transport, or any possession of child pornography. Child pornography — actual minors — is unprotected regardless of obscenity (Ferber; Osborne); virtual/simulated images are protected (Ashcroft v. Free Speech Coalition). Zoning of adult businesses is permitted under secondary-effects analysis; government may not reduce adults to reading only what is fit for children (Butler v. Michigan), though age-verification requirements for commercial pornography sites survive intermediate review (Free Speech Coalition v. Paxton (2025)).

Rule (defamation): Constitutionalized by New York Times v. Sullivan: public officials and public figures must prove falsity plus actual malice — knowledge of falsity or reckless disregard for truth — by clear and convincing evidence. Private figures/matters of public concern: at least negligence for compensatory damages; actual malice for presumed or punitive damages (Gertz). Private figure/private concern: states free to allow presumed damages without actual malice (Dun & Bradstreet). IIED claims by public figures require actual-malice-level protection (Hustler v. Falwell; Snyder v. Phelps — funeral picketing on public matters protected). There is no general "false statements" exception — lying about military medals is protected (United States v. Alvarez). Fraud, perjury, speech integral to criminal conduct, and incitement remain punishable.

Rule (commercial speech): Truthful, nonmisleading advertising of lawful products gets Central Hudson intermediate scrutiny: the government must show (1) a substantial interest, (2) that the regulation directly advances it, and (3) that it is not more extensive than necessary (reasonable fit). False, misleading, or unlawful-product advertising is unprotected and may be banned outright; blanket truthful-ad bans almost always fail (44 Liquormart; Sorrell). Required factual disclosures in commercial speech need only be reasonably related to preventing deception (Zauderer).

C. Symbolic Speech and Compelled Speech

Rule: Conduct intended to convey a message that observers would likely understand is expressive. Regulation of expressive conduct is valid under United States v. O'Brien if (1) within the government's power, (2) furthering an important interest unrelated to suppression of expression, and (3) the incidental burden is no greater than essential. Draft-card burning punishable (O'Brien); flag burning protected (Texas v. Johnson — the asserted interest was suppression itself); armbands in school protected (Tinker); nude dancing minimally regulable. Compelled speech: government may not force individuals to affirm beliefs — no compulsory flag salutes (West Virginia v. Barnette), no compelled mottos on license plates (Wooley v. Maynard), no forcing parade organizers or expressive businesses to convey messages they reject (Hurley; 303 Creative v. Elenis (2023) — a state may not compel a website designer to create expressive designs celebrating messages she rejects), no compelled subsidization of public-sector union speech (Janus), and no compelling crisis-pregnancy centers to advertise state abortion services (NIFLA v. Becerra). Government also may not coerce third parties (insurers, banks) to punish a speaker's advocacy (NRA v. Vullo (2024)).

D. Prior Restraints, Vagueness, Overbreadth, Licensing

Rule: Prior restraints — judicial orders or licensing schemes blocking speech before it occurs — bear a heavy presumption of unconstitutionality (Near v. Minnesota; Pentagon Papers, New York Times v. United States — national-security claims failed absent proof of direct, immediate, irreparable harm). Gag orders on pretrial publicity almost never survive (Nebraska Press). But an injunction must be obeyed until dissolved (the collateral bar rule, Walker v. City of Birmingham), whereas an unconstitutional statute may be violated and challenged in the prosecution. Licensing of speech is permissible only with (1) important reason, (2) definite, narrow, objective standards leaving no discretion to suppress disfavored views (Lakewood v. Plain Dealer; Forsyth County — variable fees keyed to expected hostility invalid), and (3) prompt determination plus judicial review (Freedman v. Maryland). A law is void for vagueness if persons of common intelligence must guess at its meaning; overbroad if it punishes a substantial amount of protected speech relative to its legitimate sweep (Broadrick) — overbreadth permits facial attack even by one whose own conduct is unprotected.

E. Forum Doctrine — Government Property

Rule: (1) Traditional public forums (streets, sidewalks, parks): content-based exclusions get strict scrutiny; content-neutral time-place-manner rules get intermediate scrutiny with ample alternatives. (2) Designated public forums — property the government voluntarily opens to expressive activity generally — same rules as traditional forums while open. (3) Limited public forums — opened only for certain groups or topics: restrictions must be viewpoint-neutral and reasonable in light of the forum's purpose (Good News Club; excluding religious viewpoints from an open category is viewpoint discrimination, Rosenberger; Lamb's Chapel). (4) Nonpublic forums (military bases, jails, airport terminals (ISKCON v. Lee), polling-place interiors, candidate debates on public TV, utility poles, government workplace mail systems): viewpoint-neutral and reasonable — though a "political apparel" ban so standardless it invites arbitrary enforcement is unreasonable (Minnesota Voters Alliance v. Mansky). Targeted buffer rules: focused picketing of a residence may be banned (Frisby); abortion-clinic buffer zones must be narrowly drawn — a 35-foot public-sidewalk exclusion failed tailoring (McCullen v. Coakley). EXAMPLE: A city ordinance bans all signs criticizing foreign governments within 500 feet of embassies — content-based in a public forum, strict scrutiny, invalid (Boos v. Barry).

F. Government Speech, Schools, Employees, and Money

Rule (government speech): When the government itself speaks — monuments in parks (Summum), specialty license plate designs (Walker v. Texas Division) — it may choose its message free of viewpoint-neutrality limits; but trademark registration (Matal) and privately sponsored flag displays on a city pole (Shurtleff v. Boston) are private speech. Government may impose germane conditions on how its subsidies are used, but may not leverage funding to control grantees' speech outside the funded program (Rust v. Sullivan; contrast AOSI).

Rule (schools): Student speech may be suppressed only if it materially and substantially disrupts schoolwork or invades others' rights (Tinker); schools control school-sponsored expression for legitimate pedagogical reasons (Hazelwood), may punish lewd assembly speech (Fraser) and pro-drug messages at school events (Morse v. Frederick), but have sharply diminished authority over off-campus speech (Mahanoy v. B.L. — vulgar Snapchat protected).

Rule (public employees): Speech made pursuant to official duties is unprotected (Garcetti v. Ceballos). Speech as a citizen on a matter of public concern triggers Pickering balancing — the employee's interest versus the employer's interest in efficient operations (Connick); truthful subpoenaed testimony outside ordinary duties is citizen speech (Lane v. Franks). Patronage dismissals of non-policymaking employees violate associational rights (Elrod; Branti). Loyalty oaths: government may require affirmation of support for the Constitution, but may not punish mere membership in a subversive organization absent (1) active membership, (2) knowledge of illegal aims, and (3) specific intent to further them (Elfbrandt; Keyishian); no oaths so vague they chill protected belief. Bar admission may not be denied for past membership alone.

Rule (association): The right of expressive association protects group membership and advocacy; infringements get strict scrutiny. A state may not force an expressive organization to accept members whose inclusion would significantly impair its message (Boy Scouts v. Dale; contrast Roberts v. United States Jaycees — large, unselective groups must comply with antidiscrimination law). Compelled disclosure of members or donors must survive exacting scrutiny — narrowly tailored to a sufficiently important interest (NAACP v. Alabama; Americans for Prosperity v. Bonta (2021) — blanket donor-disclosure demand facially invalid).

Rule (campaign finance): Contribution limits are permissible if closely drawn to combat quid pro quo corruption or its appearance (Buckley v. Valeo); independent expenditure limits are unconstitutional — including for corporations and unions (Citizens United) — and aggregate contribution caps fail (McCutcheon). Disclosure and disclaimer rules generally survive exacting scrutiny. Government may not penalize candidates who spend their own money (Davis).

G. Press

Rule: The press has no greater rights than the public generally: no testimonial privilege against grand juries (Branzburg), newsroom searches allowed with warrants (Zurcher), generally applicable laws (taxes, labor laws, promissory estoppel, Cohen v. Cowles) apply. But differential taxation singling out the press or particular publications is invalid (Minneapolis Star; Arkansas Writers' Project). The press may publish lawfully obtained truthful information on matters of public significance — rape victims' names from public records (Florida Star; Cox Broadcasting), and illegally intercepted communications the publisher did not itself unlawfully obtain (Bartnicki v. Vopper) — absent a state interest of the highest order. There is a First Amendment right of public access to criminal trials (Richmond Newspapers; Press-Enterprise), closures requiring overriding findings; no right of access to prisons beyond the public's. Broadcast media tolerate more regulation (Red Lion; Pacifica); cable gets intermediate scrutiny for must-carry (Turner); the internet receives full protection (Reno v. ACLU; Packingham).

X. FIRST AMENDMENT — RELIGION

A. Free Exercise

Rule: Religious belief is absolutely protected; courts may not assess the truth or centrality of beliefs, only sincerity (Ballard). Religiously motivated conduct may be burdened by a neutral law of general applicability with mere rational basis review (Employment Division v. Smith — peyote). But strict scrutiny applies when a law is (1) not neutral — it targets religion in object or design (Church of the Lukumi Babalu Aye v. Hialeah — Santería animal-sacrifice ordinances gerrymandered against the church), (2) not generally applicable — it permits individualized exemptions or comparable secular exceptions while denying religious ones (Sherbert v. Verner; Fulton v. City of Philadelphia (2021) — discretionary exemption authority in foster-care contracts triggered, and failed, strict scrutiny; Tandon — COVID rules treating secular gatherings better than worship), or (3) involves hostility toward religious belief in adjudication (Masterpiece Cakeshop). Government may not exclude religious entities or persons from public benefits because of religious status or use (Trinity Lutheran — playground resurfacing; Espinoza v. Montana (2020) — scholarship tax credits; Carson v. Makin (2022) — tuition assistance must cover religious schools; excluding them is itself subject to, and fails, strict scrutiny). The ministerial exception bars employment-discrimination suits by ministers and teachers with vital religious duties against their religious employers (Hosanna-Tabor; Our Lady of Guadalupe). Statutory note: RFRA restores strict scrutiny ("substantial burden" must be justified by a compelling interest via least restrictive means) against the federal government only (Boerne invalidated it as to states); RLUIPA does the same for land use and prisons. Classic accommodations: Amish exemption from compulsory schooling past eighth grade (Wisconsin v. Yoder); unemployment benefits cannot be denied for faith-based refusals to work (Sherbert; Thomas); parents may opt children out of instruction burdening religious upbringing (Mahmoud v. Taylor (2025)).

B. Establishment

Rule: The Lemon test is dead. Under Kennedy v. Bremerton School District (2022), Establishment Clause questions are resolved by reference to historical practices and understandings — the touchstones are coercion, official church-like favoritism, and discrimination among sects (Larson v. Valente — denominational preferences get strict scrutiny). Government may: open legislative sessions with chaplain prayers (Marsh; Town of Greece), maintain longstanding religious monuments (Van Orden; American Legion — Bladensburg cross, presumption of constitutionality for established practices), and permit a coach's quiet personal post-game prayer (Kennedy). Government may not: sponsor prayer in public schools — teacher-led (Engel), moments of silence designed for prayer (Wallace v. Jaffree), clergy at graduation (Lee v. Weisman — coercion of captive students), or student-led prayer over the PA at football games (Santa Fe); ban the teaching of evolution or mandate creationism (Epperson; Edwards); or delegate civic power to religious bodies (Larkin; Kiryas Joel). Aid to religious schools: neutral, secular-criteria aid programs are permissible — and where aid flows by genuine private choice (vouchers, Zelman v. Simmons-Harris), there is no establishment problem; after Espinoza and Carson, excluding religious schools from otherwise available benefit programs violates free exercise. Property-tax exemptions for churches among other charities are fine (Walz). MBE TIP: The modern religion-clause battleground has flipped: the tested issue is rarely "did the state establish religion?" and usually "did the state violate free exercise by excluding or burdening religion?" If a benefit program excludes religious participants solely because they are religious, the exclusion is unconstitutional.

XI. THE CON LAW ATTACK PLAN

Step 1 — Court first. Before any merits analysis, screen for justiciability: standing (injury, causation, redressability — watch for ideological plaintiffs and taxpayers), ripeness, mootness (and its three exceptions), political question, Eleventh Amendment (state defendant + damages = barred; officer + injunction = Ex parte Young), and adequate-and-independent state grounds if the case arrives from a state court.

Step 2 — Identify the actor. Federal statute? Find the enumerated power (commerce → channels/instrumentalities/substantial effects with the Lopez economic/noneconomic line; taxing; spending + Dole conditions; §5 + congruence-proportionality; Thirteenth Amendment for private race discrimination). Executive action? Place it in a Youngstown category and check appointment/removal rules. State law? Check preemption, dormant Commerce Clause (discrimination = near-per-se invalid; burden = Pike; remember market participant and congressional consent), Article IV Privileges and Immunities (out-of-staters + livelihood), and anti-commandeering if Congress is ordering states around.

Step 3 — State action. Private defendant? The constitutional claim fails unless public function or entanglement/entwinement applies.

Step 4 — Pick the right rights clause and tier. All persons burdened → due process; classification → equal protection. Fundamental right or suspect class → strict scrutiny (government's burden); gender/legitimacy → intermediate; everything else → rational basis (challenger's burden — and the challenger nearly always loses). For speech: content-based → strict; content-neutral/TPM/symbolic/commercial → intermediate variants; unprotected category → define it precisely (Brandenburg, Miller, Counterman, Sullivan). For religion: neutral and generally applicable → Smith rational basis; targeted, exception-riddled, or status-based exclusion → strict scrutiny; establishment → history, tradition, and coercion.

Step 5 — Apply the burden honestly. On the MBE, the tier of scrutiny usually decides the case: strict scrutiny kills the law; rational basis saves it. The examiners test whether you know which tier and who must prove what. ESSAY WRITING TIP: State the tier, assign the burden of proof, apply both prongs (interest, then tailoring/fit) in separate sentences, and conclude — that four-sentence rhythm earns full rule-application credit on every constitutional issue. MBE TIP: When two answers reach the same result, choose the one whose reasoning names the correct clause and standard; the most common wrong answer in Con Law is the right outcome for the wrong constitutional reason.

Related

➡ Constitutional Law One-Page Cheat Sheet
➡ California Constitutional Law Distinctions