Constitutional Law

Introduction

Constitutional Law is always about these two questions. When focusing on an exam
question focus on the same 2 questions:
1) Does the government have the power to act?
2) Did the government violate a limit on his authority?

 This course(5 modules) will be focusing on the law within these 2 questions and the
powers and constraints.

1) Answers:
 Federal Government: can act only if it has express authority. When it is said that the
government can only act if it has express authority, this explains why congress act only
if it can point to express or implied authority in the constitutional. There is no general
authority for congress to act just by saying it will be good for the contrives general
welfare.
 The same is true for federal courts, it can only hear cases that are both constitutional and
statutory authority
 State Governments can do anything except what is prohibited by the condition. State and
local governments have the police power meaning they can do anything except what
prohibited by the constitution. It is fair to say that congress and the federal government
lack the police power because they have to point to the authority in constitution to be
able to act.

2) Answers:
 All governments in all levels: Federal or state local are constrained by the
constitution, these constrains take many forums such as the rights in the
constitution are limits on governments.
 o EXAMPLE: 1st Amendments the freedom of speech, religion have a
constraint on government
o 2nd amendment the right to bear arms is a constraint on government
o Many of the provisions of the Bill of rights focus on criminal procedure
the 4th amendment limiting searches and arrests, 5th amendment limit of
the self-incrimination, the 6th amendment the rights of criminal
defendants in trial, 8Th amendment prohibitions from cruel and unusual
punishments.
 All of these are limits on the government, a few more are
o Due process and Equal protection
 No government can take away a person’s life, liberty or property without due
process of law
 No government in any level can deny a person’s equal protection of laws

Module 1: Powers of the federal government, the authority of the federal judiciary of congress,
of president and the executive branch

Module 2: Intergovernmental powers: the relationship among the levels of government, mostly
on limits of state and local government power because of pre-existence of national government
power in other states

Module 3: Individual liberties under the constitution and general principles that apply to all the
parts of the constitution that deal with individual liberties and individual liberties that are outside
of the realm of due process and equal protection

Module 4: Due process and equal protection. Guarantees of the 5th and 14th amendments such
as the government cannot deprive a person from life, liberty or property without due process of
law. The government cannot deny any person equal protection laws.

Module 5: 1st Amendment providing protection from individual liberties, it’s a constraint on
government power. The most important of the 1st amendment rights are freedoms of speech and
religion.
 Video 1 Constitutional Law:
Powers of the Federal Government (1.54h)

Outcomes:
1) Introduction
2) Powers of the Judicial Branch Overview
3) Judicial Power- Justiciability
4) Judicial Power- Supreme Court Review
5) Judicial Power- Lower Federal Court Jurisdiction/State Sovereign Immunity
6) Federal Legislative Power
7) Federal Executive Power

1) Introduction

2) Powers of the Judicial Branch Overview

3) Judicial Power- Justiciability

4) Judicial Power- Supreme Court Review

5) Judicial Power- Lower Federal Court Jurisdiction/State

Sovereign Immunity

6) Federal Legislative Power

7) Federal Executive Power

 Video 2 Constitutional Law: Substantive Due Process & Equal
Protection (1h16m)
Outcomes:
1) Levels of Scrutiny
2) Substantive Due Process
3) Equal Protection

1) Levels of Scrutiny
 Whenever the court is dealing with individual liberties or protection of the constitution,
the level depends on the levels of scrutiny

There are 3 Levels of Scrutiny:

 Rational basis test-
 The laws upheld if it rationally related to a legitimate government purpose.
 There governments goal has to just be permissible and legitimate for the
government to do, the governments actual purpose does not need to be legitimate
 As long as there is a conceivable legitimate purpose that is sufficient.
 The government usually wins.
 The challenger usually has the general burden of proof and the law will be struck
down/upheld if the challenger can show either there is no conveyable legitimate
purpose or the law is not rationally related to it

 Intermediate Scrutiny
 The law will be upheld if it is substantially related to an important government
purpose
 The government’s goal must be most then just something that is legitimate for the
government to do, the court has to be persuaded that the governments objective is
a important one and the court will look at the governments actually purpose
 The law involved must be narrowly tailored to receiving objective
 They don’t have to be the least restrictive alternative
 The government has the burden of proof, the law will be upheld if the government
can convince the court that the action is substantially related to legitimate
government purpose

 Strict Scrutiny
 Law will be upheld if it is necessary to achieve a compelling government purpose
 The court has to be persuaded that the governments objection is crucial and
necessary to achieve the goal
 The government must show that there is no less restrictive alternative that can
achieve its objective
 The government usually looses
 The government has the burden of proof, the law will be upheld if only the
government can show that it is necessary to achieve a compelling government
purpose
2) Substantive Due Process

Definition: Does the government have an adequate/sufficient substantive justification reasons

for taking away a person’s life, liberty or property?
 Is a way of describing or protecting a number of liberties
 The constitution provides a minimal protection for economic liberties
 Does the government have a good enough reason for infringing a person right?
o What is sufficient depends on the level of scrutiny involved

The difference between Procedural due process and Substantive due process
 Procedural Due Process requires that the government provide notice in a hearing before
permanently terminate rights. It asks whether the government has followed the proper
procedure when it takes away life, liberty or property.

 Substantive Due Process requires that a government show a compelling need to

terminate rights, they have to prove abuse or neglect. Looks to whether there is a
sufficient substantive justification, a good enough reason for such a deprivation
 Example: Under the word liberty in the due process clause, parents have
a fundamental right to the custody of their children. Parents
have a fundamental right to the custody of their children if the
state wants to permanently terminate custody it has to meet
both procedural and substantive due process

1) Now The Constitution Provides Only Minimal Protection for Economic

Liberties:
 Substantive Due process was used in the Lochner Era where the court aggressively
protected economic liberties from the governments interference
 Freedom of Contract was a fundamental right and the courts used strict scrutiny when the
government interfered with freedom of contract
 The Lochner era is a period in American legal history from 1897 to 1937 in which
the Supreme Court of the United States is said to have struck down economic regulations
adopted by a State.
 It was based on the Court's own notions of the most appropriate means.
 For the State to implement its considered policies it used interpretation of substantive
due process to strike down laws held to be infringing on economic liberty or private
contract rights.
 Lochner v. New York was a case where a New York law that limited the maximum
number of hours that bakers could work. The supreme could held, to use modern
language, that freedom of contract was a fundamental right under the liberty of the due
process clause and used strict scrutiny to evaluate this law. Over 200 laws were struck
down for economic regulations.
 Since 1937 the court has refused to accept economic substantive due process
 Since 1937 It is only rational basis review when the government interferes with economic
liberties
  When it comes to due process challenge the government economic regulation it is only
rational basis review and the government wins
 Example 1: If you get a test question where it’s a due process
challenge question based on a minimum wage law or
maximum hour laws or employment regulations. The
correct answer is rational basis review and the
government wins.
 Example 2: When there is a due process challenge to state law that
regulate trades or professions and people claim a right
to practice their trade or there trade, it rational basis
review and the government is going to win.
 Example 3: When there’s a due process challenge to consumer
protection laws, like the requirement that people pass a
bar exam in order to be lawyers its rational basis review
and the government win.

The protections there is in economic liberties under the constitution since 1937, it
comes under other specific constitutional provisions such as:
 Contract Clause under Article 1 s.10 of the Constitution
 Taking Clause under the 5th Amendment

The 4th Amendment Subsection (b) The Right to Privacy

 Privacy is protected as a fundamental right under the liberty of the due process clause
 Strict scrutiny is used when the government interferes with privacy rights
 Privacy is a umbrella that is used to describes different liberties

What are some aspects of Privacy Protected by the Constitution?

1) The right to marry is a fundamental -right under the liberty of the due process clause for
same sex and heterosexual couples getting married.
 Obergefell V Hodges the supreme court said after June 26 2015 that state laws
that ban same sex marriage violate the laws to marriage and therefor
unconstitutional
2) The right to procreate is a fundamental right
 the government can impose involuntarily sterilization only if it meets strict
scrutiny, if it can show that its action is necessary to a achieve a compelling
government purpose
3) The right to custody of one’s children is a fundamental right
 Substantive due process requires that the government prove a compelling
reason before terminating parental custody, like parental abuse or parental
neglect
 1 qualification to regards to the right to custody, which was in a case where the
Supreme Court has said that a state can create an irrebuttable presumption that
a married women’s husband is the father of her child
 Michael H. v. Gerald D 1989 Case, where an international model who was
married had an affair and conceived a child as a result of the affair. She did not
 divorce her husband but she moved in with the child biological father and lived
with him for 18 months. After a 1 year and a half she left the biological father
and rejoined her husband and took the child with her. The biological father
sued for visitation rights. However at this time California had a law that said
married women had a child in these circumstance, there was an irrebuttable
presumption that the married women’s husband was the father of her child.
The California court used this law to deny all parental rights and visitation
rights to the biological father. The supreme court upheld the California law in
its application and said a state MAY create an irrebuttable presumption that a
married women’s husband is the father of her child.
4) The right to keep the family together is a fundamental right –
 Family includes the extended family who are related to one another
 Moore V City of East Cleveland case where an East Cleveland Ohio had a
zoning ordinance that limited the number of unrelated people who can live in
the same household. The way unrelated was defined was it kept a grandma
from living with her 2 grandchildren who were first cousins. The supreme
court declared the ordinance unconstitutional because there is a fundamental
right to keep a family together and that includes extended family. In order to be
considered an extended family individuals must be related to one another.
 Village of Bell Terre V Boraas- the village of Bell Terre is the state
university of New York where Stonybrook is located. It had a zoning
ordinance limiting the number of unrelated people in the same household.
College students who wanted to share a house, however they lost. The different
between these 2 cases were that the other one was relatives and these were
collages students not related to another

5) Parents have a fundamental right to control the up bring of their children

 A government can interfere with parenting decisions only if it meets strict scrutiny
 In the 1920’s parents have the right to send their children to parochial schools. Courts
found a law prohibiting parochial schools unconstitutional based on the interference with
the right of parents to the upbringing of their children
 It violates Due Process for a court to order a grandparents visitation over the parents
objections because it violates the rights of the parents to control the upbringing of their
child

6) The right to purchase & use contraceptives is a fundamental right

Griswold V Connecticut- Strict Scrutiny

Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its
medical director, a licensed physician, were convicted as accessories for giving married persons
information and medical advice on how to prevent conception and, following examination,
prescribing a contraceptive device or material for the wife's use. A Connecticut statute makes it a
crime for any person to use any drug or article to prevent conception. Appellants claimed that the
accessory statute, as applied, violated the Fourteenth Amendment. An intermediate appellate
court and the State's highest court affirmed the judgment.
7) The Right to Abortion is a Fundamental Right
 Women have the fundamental right to choose whether to terminate their pregnancies

Row V Wade 1973

The court held that a set of Texas statutes criminalizing abortion in most instances violated a
woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of
the due process clause of the Fourteenth Amendment (“…nor shall any state deprive any person
of life, liberty, or property, without due process of law”).

Plan Parenthood V Cassey

The Court's plurality opinion upheld the constitutional right to have an abortion while altering the
standard for analyzing restrictions on that right, crafting the "undue burden" standard for abortion
restrictions.

Applying this new standard of review, the Court upheld four regulations and invalidated the
requirement of spousal notification.
19:22

3) Equal Protection
 Video 3 Constitutional Law: First Amendment Freedoms (1h29m)
Outcomes:
1) Freedom of Speech-Methodology
2) Freedom of Speech-Unprotected/Less Protected Speech
3) Freedom of Speech-Spaces Available for Speech
4) Freedom of Association
5) Freedom of Religion

1) Freedom of Speech-Methodology

2) Freedom of Speech-Unprotected/Less Protected Speech

3) Freedom of Speech-Spaces Available for Speech

4) Freedom of Association

5) Freedom of Religion

Video 4 Constitutional Law: Multistate Approach (47min)

o Very black and white way of testing and recycle the same questions over and over
 o They tend to test you on settle principles of law, which make the questions and
answer very precise if you use a systematic approach
 The Bar Exam will consist of:
o 27 Constitutional law questions MBE questions on the 3 primary areas of law

3 Primary Areas of Law:

1) Powers
 Powers of the 3 branches such as the judicial branch, executive branch and the
legislative branch
 Know the powers of each branch
 How the Supreme Court interprets and limits the powers of the 3 branch’s

2) Relationship between States and Federal Government

 Federalism

3) Relationship between Government and Individuals

 Individual rights
 50% of Constitutional law questions are based on individual rights

8 Subjects in Constitutional Law

 How do you know if it’s a Constitutional Law Questions?
o Start by reading the call of the question, if you can’t tell by reading the call,
quickly skim the answer choices and it will tell you the subject.
o Answer the call of the question in your head before reading the answer choices
o Some of the answers will be constitutional because and others will be its
unconstitutional because and so answering the question in your head before will
help narrow the right answer before getting confused with the answer choice
o Don’t overlook or interpret key facts
o They try to distract you in mini ways so keep focus
 Constitutional Law Questions would usually start by:
o Is the statute Constitutional?
o Are the majors acts Constitutional?
o Examiners can trick you by presenting facts the present a clear equal protection
violating, unless you identify that the party discriminating was a private company
and Conclude that there is no constitutional law issue because the constitution
constraints the government not private parties
 Constitution
(Provide a separation of powers)

Legislative Executive Judicial

(Makes Laws) (carries out laws) (Interprets Laws)

Congress President Supreme Court

Senate
Vice President Other Federal
House of Courts
Cabinet
Reprsentatives

When You Have a Constitutional Law Questions the First 3 Question

You Ask is:
 Question 1: WHO:

Who are the parties in the question,

Who’s taking action,

Who’s being effected by that action
 Example: Did a State Government official undertake the action that is
being objected to?
 Or was it the Federal Government?
 Or a Private Actor?
 Who? Who are the people or actor in the question, who are players in the hypothetical?
They can be:
 Private Citizens, Groups or Businesses
 States or one of its subsidiary such as Municipalities or
 Some Branch of the Federal Government: the executive, legislature or judicial
branch
 Make sure you can identify the actors or parties as precisely as you can

 Example 1: Suppose you read a Constitutional fact pattern and you

determine that you have a foreign corporation bringing
suit against a municipality for a city ordinance that is
infringing on its right to carry on business in the state
 First you want to identify that:
o You have a corporation that has a beef with a municipal
government the city-
o Corporation Vs. City

 Example 2: Suppose you read a Constitutional fact pattern and you

determine that you have a Governor who is unhappy
with the law passed by Congress because it compels state
officers to operationalize or monitor a Federal program
 First you want to identify that:
o You have a State Government Actor who has a beef with the
Federal Government
o State Vs. Federal Government
  It is important to identify the who in order to apply the right analysis, the identity of the
complaining party and the identity of the party who is acting that is passing the law that is
enforcing the regulation etc.
 Who are the parties are always important facts for Constitutional law questions because
they can trick you on who was taking the action and who was being affected
 A discrimination question can have a different outcome or answer, if the federal
government passes a law that unreasonable discriminates people by race then when a
state passed that same law
 That discrimination question can lead to a different result if the party being discriminated
is a private party or a public entity

 Question 2: WHAT
 What type of Constitutional Law Problem is this?
 Is this question asking about Relative Powers of Government
 Or different branches of Government?
 Or Individual Liberties?
 Example: Is a state trying to regulate commerce, which is the power
given to the federal government but shared a little with the
state
 Or is the state trying to sensor political speech
 What? What type/problem of Constitutional law question is it? Generally will be 1 of 2
categories such as:
 The authority of a particular sector or branch of government to do something like
pass a certain law or
 Whether some government action violates someone constitutional liberties such a
free speech or free exercise of religion
 Determine whether the question is a “Powers” Question or a “Rights” Question
will help narrow the right rules and will fall between the 2 categories: Powers &
Rights
 Con Law 1- various powers of the different levels of branches of
government,
 Con Law 2- Various liberties and protections that citizens have
 Divide the question with con law 1 or con law 2

 Example: the call of the question: Is the presidents’ action Constitutional?

o You are dealing with a powers question, the relevant power of the president in the
constitution in Article 2

 Question 3: HOW?
 How is this type of Constitutional Law problem resolved based on the text of the
Constitution? or
 How the Supreme Court has interpreted the test in the Constitution?
 If the problem concerns a state trying to regulate commerce, you would ask how
are state law effecting inner state commerce analysed? Or
  If the problem in the question concerns a state trying to sensor speech, you would
ask how are freedom of speech issues analysed?
 How?
 For a Powers question ask:
 How can the particular actor (branch of government mayor, state legislator) do
what they are doing under the Constitution?
 What constitutional provision gives this actor the authority to do whatever they
are doing or attempting to do in the hypo?
 For a Rights question ask:
 How is the particular right being infringed?
 How does the Constitution protect against these types of violations?

 This approach will help you zoom in on the facts that will reveal the narrow
issue to the question
Question 1 Question 2
WHO?
What?

States, Branches of the

Private citizens,
municipalities or Federal
Powers Rights
entities, business Question Question
their agents Government

Question 3
How?
RIghts
Powers Question
Question

How is the government

potentially interfering
How can this with a persons rights?
particular actor
constitutionally do
what she is doing? How does the
Consitution
protect these
types of rights?
If you cant find a justification
under the constitution then
the act is unconsitutional

Frequently Tested Executive Powers (president)

Question 3: How can the Executive do what he is attempting to do in the question?
 The president has limited power in domestic authority but more power in external affairs

Domestic Authority
is limited. President can:

Appoint high
Pardon federal
levels officers with Veto Billd
offenses
Senate approval
 Power over External Affairs
The President can:

Can act militarily Enter into treaties

Represents US in
but cannot declare with 2/3 Senate
foreign relations
war approval

Test Tip: If treaty conflicts with federal law, last in time prevails. The federal constitution
trumps everything, so a treaty cannot conflict with the constitution. Executive agreements are
signed by the president and a head of a foreign country, treat these like a treaty but accept know
that they don’t need senate approval and federal law trumps executive agreements.

Frequently Tested Legislative Powers

Question 3: How can the congress do what he is attempting to do in the question?
 The legislative branch only has the power to do what its explicitly provided in article 1 of
the constitution
 This does not mean congress can pass law based on the general welfare, that’s the police
power and congress doesn’t have police power.
 Congress can only spend money and tax things based on the public welfare
 Congress power to regulate all foreign and interstate commerce
Interstate Can regulate interstate
commerce if:
Commerce Power
plenary powers to
Congress can pass regulate interstate and Channels of interstate
laws on foreign commerce commerce
Taxing and Spending
Powers Instamentalities of
interstate commerce

Taxing: Must bear some Economic activity where

reasonable relatiobshp to Spending: Based on there is a substancial
revenue production or be the general welfare effect on interstate
within congress's commerce in the
regulatory power aggregate

Test Tip: Congress Taxing and Spending power are limited by individual rights, ensure that the
question is not really testing whether the congressional action is violating a civil liberty. That’s
why identifying the “What” is so important in the question
Test Tip: Unless the facts involved DC, a US territory, or the military, any answer choice that
says congress has legislative authority under it police powers is wrong

Can regulate
interstate
Interstate commerce if:
Commerce
Power Channels of
plenary powers to interstate
regulate interstate and commerce
foreign commerce
Instamentalities
of interstate
commerce

Economic activity
where there is a
substancial effect on
interstate commerce
in the aggregate

Frequently Tested State/Municipal Powers

How are the states/municipalities police power restricted?

Doormant Commerce Clause

If Congress has not

regulated, state can
regulate local aspects of
intereste commerce IF:

Law does not

discriminate against
interstate commerce

Remember the
OR Exceptions!
Unduly burden
interstate commerce
 Privileges and
Immunities Clause,
Article IV

Protects out of state

citizens from a state
Only applies to people
denying them important
economic interest

Test Tip: Understand both privileges and immunities Clauses in the Constitution

How is the government interfering with an individual right?

Equal Protection Taking Clause 1st Amendment

Due Process Issue
Issue Issue Issue

How are these How are these How are these How are these
types of types of types of types of
violations violations violations violations
analyzed under analyzed under analyzed under analyzed under
the consitution? the consitution the consitution the consitution

Test Tip: For all Rights Questions, we have to have government action behind the rights
infringement. Check for state action if you are working a Rights question
 How is the
government How is the right being
potentially infringed?
interfering with the
claimants rights?
Gender or legitimacy

Race, alienage, national

orgin, religion Apply intermediate
By Treating similarly Equal Protection scrutiny
situated people
differently
Governement must
show discrimination
Apply strict scrutiny substantially related
to important
government interest

Governement must show

discrimination is necessary
to achieve compelling
government interest
 How is the How is the right being infringed?
government
potentially
interfering with Race, alienage, Gender or
claimant's national orgin, legitimacy All other
religion classifications
rights?
Apply strict
scrutiny
By treating Apply Apply rational
similarly Intermediate basis
situated scrutiny
people
Equal Government
differently must show
Protection
discrimination Government
to necessary must show Governement
to achieve discrimination must show
compelling substantially discrimination is
governement related to not rationally
interest important related to
government legitimate
interest governement
interest

Test Tip: In order for a plaintiff to prevail on heightened scrutiny review for an Equal Protection
issue, he must show discrimination intent.

Test Tip: Equal Protection Clause only restrict state. 5Th Amendment protects individuals against
unreasonable discrimination by the federal government

Rights Questions: Commonly Tested Issues:

 How is the By denying all
governement indivduals a Substantive Due
interfering with a fundamental Process
claimant's rights? right

How do you resolve

such cases under
the Consitution?

Apply the
correct test

(33 min)
Fundamental Rights:

 Privacy Rights:
 Contraception- the right of married or unmarried people to use or purchase
contraceptive
 Abortion – provides that prior to viability state may not prohibit abortion
but they can regulate it so long as there no undue burden

 Marriages or the right to marry

 Procreation- the right to be free of dealing with issues of precreation

(reproduction)

 Education or Private Education- the right to privately educate your child

 Family Relations- The right of a family or a nuclear family to live together

 Sexual Contact- the right of fully consenting adults to engage in private
intimate sexual conduct that is not commercial in nature
  Remember that Abortion and Sexual Contact are the 2 privacy rights that use a different
test then Strict Scrutiny
 For abortion the government must not place an undue burden on a women’s right to
abortion prior to viability
 Be familiar with the facts of what the court has held to constitute an undue burden
 On non-commercial sexual contact between 2 consenting adults the court cannot decide
on a standard but they have concluded that the government has no legitimate interest in
what goes on between 2 consenting adults

 Rights to Travel: The right to travel between the states are a fundamental right
 Right to Vote

Test Tip: 14th Amendment Due Process Clause only restrict states. The 5th Amendment
Protects individuals against unreasonable discrimination by the federal government.
 14th Amendment Due Process Clause applies to states or municipal action.
 Where the federal government impinges on a fundamental right, the test is the same but
the answer choice will site the 5th Amendment not the 14th Amendment as the source of
authority

Rights Questions: Commonly Test Issues

Question 3: How is the government interfering with Individual rights?

MBE Constitutional Law Approach