The ABCs of: Constitutional Law

Here is a collection of 26 important concepts, from A to Z, you need to know about Constitutional Law for the bar exam:

A – Abstention: Federal courts may decline to hear a case under certain doctrines of abstention, such as when state court proceedings address the same issue. This prevents interference with state functions.

BONUS: A – Alienage Classification: Laws that classify based on alienage are generally subject to strict scrutiny. However, rational basis review applies when the law involves federal immigration policy or the functioning of state governments, such as positions integral to government operations, like police officers or public school teachers. These exceptions recognize the state’s interest in restricting certain roles to U.S. citizens.

BONUS: A – Appellate Jurisdiction: The Supreme Court’s appellate jurisdiction includes cases involving federal law, disputes between states, and cases implicating constitutional questions, with discretionary review via writs of certiorari.

B – Burden: The burden of proof and standards of review vary depending on the case. For example, under strict scrutiny, the government carries the burden of proving that laws are narrowly tailored to achieve a compelling interest. For rational basis review, however, the burden shifts to the challenger, who must demonstrate that the law is not reasonably related to a legitimate interest. Intermediate scrutiny typically places the burden on the government to show that the law is substantially related to an important governmental interest.

C – Commerce Clause: Grants Congress the power to regulate interstate commerce. This includes channels, instrumentalities, and activities with substantial effects on interstate commerce.

D – Dormant Commerce Clause: Prohibits state legislation that discriminates against or unduly burdens interstate commerce, unless the state can justify the law with legitimate local benefits outweighing the burden.

BONUS: D – Due Process: The Due Process Clause appears in both the Fifth and Fourteenth Amendments, ensuring procedural fairness and protecting against arbitrary government actions. Procedural Due Process requires notice and a meaningful opportunity to be heard before deprivation of life, liberty, or property. Substantive Due Process protects fundamental rights, such as privacy and autonomy, from undue government interference, and laws affecting these rights are generally subject to strict scrutiny.

E – Equal Protection Clause: Found in the Fourteenth Amendment, it requires states to treat individuals similarly situated in the same manner unless a sufficient justification exists for disparate treatment. For federal action, Equal Protection issues are examined under the Fifth Amendment’s Due Process Clause, which the Supreme Court has interpreted to incorporate equal protection principles when federal laws or actions are challenged.

BONUS: E – Establishment Clause: The Establishment Clause of the First Amendment prohibits the government from making any law respecting the establishment of religion. Courts evaluate potential violations using three primary tests: the Endorsement test (prohibiting government actions that a reasonable observer would view as endorsing religion) and the Coercion test (prohibiting government actions that coerce individuals to participate in or support religious practices). The Lemon test has been effectively overruled by recent Supreme Court decisions emphasizing a history and tradition analysis in Establishment Clause cases.

F – Free Exercise Clause: The Free Exercise Clause of the First Amendment protects individuals’ rights to practice their religion freely. Courts analyze potential violations using different tests. Neutral laws of general applicability that incidentally burden religious practices are generally upheld unless they fail rational basis review. However, if a law targets religion or religious practices intentionally, it is subject to strict scrutiny and must be narrowly tailored to achieve a compelling government interest.

BONUS: F – Fighting Words: Fighting words are not protected by the First Amendment as they incite immediate violence.

BONUS: F – Fundamental Rights: Fundamental rights, such as marriage, privacy, and voting, are protected under substantive due process and require strict scrutiny when burdened by the government.

G – General Welfare Clause: Grants Congress the authority to tax and spend for the general welfare, provided it does not violate specific constitutional limitations.

BONUS: G – Generally Applicable Laws: Under the Free Exercise Clause, neutral laws of general applicability that incidentally burden religious practices do not violate the Constitution unless they fail strict scrutiny in cases involving intentional discrimination.

H – Habeas Corpus: Habeas corpus is a legal writ used to challenge unlawful detention, ensuring that a person's imprisonment or detention is lawful. The Suspension Clause protects this right unless it is suspended during times of rebellion or invasion.

I – Incorporation Doctrine: The Incorporation Doctrine refers to the process by which the Supreme Court has applied most provisions of the Bill of Rights to the states through the Fourteenth Amendment’s Due Process Clause. 

BONUS: I – Intermediate Scrutiny: Intermediate scrutiny is a standard of review used to evaluate laws involving gender or legitimacy classifications. Intermediate scrutiny applies to laws that involve gender or legitimacy classifications. Under this standard, the government must demonstrate that the law is substantially related to achieving an important governmental interest.

J – Judicial Review: Established in Marbury v. Madison, it allows courts to declare laws or executive actions unconstitutional.

BONUS: J – Just Compensation: Just compensation under the Takings Clause requires the government to provide payment to property owners equivalent to the fair market value of the property at the time of the taking. This ensures property owners are not unfairly burdened by government actions serving public purposes.

BONUS: J – Justiciability: Justiciability refers to the doctrines that limit which cases federal courts can hear, ensuring they address actual controversies. These include standing, ripeness, mootness, and the political question doctrine, all designed to maintain proper judicial restraint.

K – Knowledge of Falsity: In defamation cases involving public figures or matters of public concern, knowledge of falsity is a critical element. Public figure plaintiffs must prove actual malice, meaning the defendant either knew the statement was false or acted with reckless disregard for its truth. This heightened standard protects freedom of speech while balancing reputational interests. For private individuals, negligence is typically the fault standard, requiring the plaintiff to show the defendant failed to act with reasonable care in verifying the truth of their statement.

L – Legislative Veto: Declared unconstitutional in INS v. Chadha, the legislative veto allows Congress to override executive actions without bicameralism and presentment.

BONUS: L – Lemon Test: The Lemon test, formerly used to evaluate Establishment Clause cases, required a law to have a secular purpose, not advance or inhibit religion, and not foster excessive government entanglement with religion. However, the Lemon test no longer applies, and relying on it is generally a bad answer, as the Supreme Court has shifted to a history and tradition analysis for these cases.

M – Mootness: Courts will not decide cases in which the issues have become moot, except under exceptions such as those that are capable of repetition yet evade review.

N – Necessary and Proper Clause: The Necessary and Proper Clause provides Congress with the authority to enact laws necessary to execute its enumerated powers. Courts use a broad interpretation of this clause, as established in McCulloch v. Maryland, allowing Congress to adopt means that are plainly adapted to achieve legitimate constitutional ends, so long as they do not violate other constitutional provisions.

O – Overbroad Regulations: Overbroad regulations are laws that restrict not only unprotected speech but also a substantial amount of protected speech. Such regulations are often struck down under the First Amendment because they deter constitutionally permissible expression.

P – Privileges and Immunities Clauses: The Constitution contains two Privileges and Immunities Clauses. The Article IV Privileges and Immunities Clause prevents states from discriminating against citizens of other states in fundamental matters, such as pursuing a livelihood. The Fourteenth Amendment’s Privileges or Immunities Clause protects the rights of national citizenship, though its scope has been limited by cases like The Slaughter-House Cases. Courts rarely rely on this clause in modern jurisprudence.

BONUS: P – Pike Balancing Test: The Pike Balancing Test is used in Dormant Commerce Clause cases to evaluate whether a state law that impacts interstate commerce is permissible. The test balances the local benefits of the law against the burdens it imposes on interstate commerce. If the burden is clearly excessive relative to the benefits, the law is invalid.

Q – Quotas: Strict quotas in affirmative action programs are unconstitutional under the Equal Protection Clause. Recent Supreme Court decisions, such as Students for Fair Admissions v. Harvard and UNC (2023), have clarified that racial classifications in college admissions are impermissible. These cases emphasized that race-based affirmative action policies violate the Equal Protection Clause, shifting the focus away from strict scrutiny analysis in this context.

BONUS: Q – Quasi-Suspect Classifications: Quasi-suspect classifications, such as gender and legitimacy, are analyzed under intermediate scrutiny. Under this standard, the government must show that the classification is substantially related to an important governmental interest.

R – Ripeness: A case is ripe when the issues are fully developed, and there is an actual, substantial controversy warranting judicial intervention.

BONUS: R – Retroactive Legislation: Retroactive legislation, such as ex post facto laws and bills of attainder, is generally prohibited under the Constitution. Additionally, retroactive civil laws are subject to rational basis review, requiring that they are rationally related to a legitimate governmental interest.

BONUS: R – Rational Basis: Rational basis is the least stringent standard of review, under which laws are presumed constitutional unless the challenger shows they are not rationally related to a legitimate governmental purpose.

S – State Action: The State Action Doctrine requires that constitutional protections apply only to actions by government entities or private actors performing functions traditionally and exclusively reserved to the state. This doctrine ensures that constitutional constraints are not imposed on purely private conduct.

BONUS: S – Spending Power: Congress has the authority to tax and spend for the general welfare under the Spending Clause. Conditions attached to federal funding must be clear, related to the purpose of the funding, and not coercive to pass constitutional muster.

T – Takings Clause: The Fifth Amendment prohibits the government from taking private property for public use without just compensation. Takings can be categorized as physical takings, regulatory takings, or exactions. Physical takings involve direct government appropriation or invasion of property. Regulatory takings occur when government regulation deprives a property owner of all economically viable use of their land, analyzed under the Penn Central factors, including the regulation's economic impact, interference with investment-backed expectations, and the character of the government action. Exactions are conditions imposed on property development that must satisfy the Nollan/Dolan test, requiring a nexus and rough proportionality between the exaction and the development's impact.

U – Uncompensated Taking: Uncompensated taking refers to a government action that effectively takes private property without providing just compensation, in violation of the Fifth Amendment’s Takings Clause. Courts analyze such cases to determine whether the action constitutes a physical taking, regulatory taking, or exaction, and whether compensation is warranted.

V – Void for Vagueness Doctrine: A law is unconstitutionally vague if it fails to provide reasonable notice of what is prohibited or encourages arbitrary enforcement.

BONUS: V – Veto: The President's veto power allows them to reject bills passed by Congress, providing a critical check on legislative power. A veto can be overridden only by a two-thirds vote in both the House and Senate.

W – War Powers: Grants Congress the authority to declare war, while the President acts as Commander in Chief. War powers are shared but often contested.

X – Xenophobia and Equal Protection: Laws that discriminate based on alienage are generally subject to strict scrutiny, with exceptions for federal immigration policy and the public function exception, which applies to roles integral to government operations such as police officers and public school teachers.

Y – Youngstown Framework: Outlined in Youngstown Sheet & Tube Co. v. Sawyer, the Youngstown Framework provides a structured approach to analyzing the scope of presidential power. It identifies three categories of presidential action: (1) when the President acts with express or implied authorization from Congress, their power is at its maximum; (2) when the President acts in the absence of Congressional grant or denial of authority, they operate in a “zone of twilight” where authority is uncertain; and (3) when the President acts contrary to the express or implied will of Congress, their power is at its weakest. This framework is essential for evaluating the constitutionality of executive actions, particularly in the context of separation of powers.

Z – Zoning Laws: Local zoning laws must comply with the Due Process and Equal Protection Clauses. They may also implicate the Takings Clause when regulations go too far in restricting property use.