Constitutional Law — Bar One-Sheet (Elements & Mnemonics)

CONSTITUTIONAL LAW — BAR ONE-SHEET (ELEMENTS & MNEMONICS)

Lean issue-spotting checklist — elements and mnemonics only. Pair with the full Constitutional Law Master Outline for depth, then drill questions at MBEMax.

KEY PRINCIPLE #1 — JUSTICIABILITY (mnemonic "SCRAMP-S")

• Standing · Case-or-controversy (no advisory opinions) · Ripeness · Abstention · Mootness · Political question · Sovereign immunity.

STANDING — mnemonic "ICR": Injury (concrete & particularized, actual/imminent) · Causation (traceable to D) · Redressability (favorable ruling fixes it).

• Third-party standing: close relationship OR obstacle to 3rd party asserting + own injury.
• Taxpayer: generally NO (exception: Establishment Clause spending).
• Mootness exceptions: capable of repetition yet evading review; voluntary cessation; class action.
• Ripeness: fitness + hardship of withholding review.

KEY PRINCIPLE #2 — FEDERAL/STATE POWER

• CONGRESS: Commerce (channels · instrumentalities · substantial effect on interstate, aggregate for economic activity) · Taxing/Spending (general welfare; conditions = unambiguous, related, not coercive, no other unconstitutional) · War · Necessary & Proper (no independent power) · 13/14/15th Amend enforcement (congruent & proportional).
• 10th Amend: can't commandeer states (force legislate/enforce); may induce via spending.
• EXECUTIVE: foreign affairs, treaties (supreme) vs executive agreements; appointment/removal; pardon; veto; Youngstown tiers.
• JUDICIAL: Art. III; 11th Amend bars private suits vs states in fed court (exceptions: consent, Ex parte Young injunction, §5).

KEY PRINCIPLE #3 — FEDERALISM LIMITS ON STATES

SUPREMACY/PREEMPTION: express · field · conflict (impossible compliance / obstacle).

DORMANT COMMERCE CLAUSE (DCC): state law burdening interstate commerce.

• Discriminatory (facially/purpose/effect) → virtually per se invalid UNLESS necessary to important non-economic interest + no alternatives.
• Non-discriminatory but burdens → Pike balancing (burden vs local benefit).
• Exceptions: Market participant · congressional authorization · traditional government function.

PRIVILEGES & IMMUNITIES (Art. IV): no discrimination vs out-of-state citizens re: fundamental rights/livelihood (corporations & aliens NOT protected); needs substantial justification + no less restrictive means.

KEY PRINCIPLE #4 — STATE ACTION & LEVELS OF SCRUTINY

STATE ACTION required for most rights: public function OR significant entanglement (13th Amend reaches private).

LEVELS OF SCRUTINY:

• Strict = necessary to compelling interest, narrowly tailored/least restrictive. (Gov bears burden.) Suspect class (race, national origin, alienage) + fundamental rights.
• Intermediate = substantially related to important interest (gov burden; "exceedingly persuasive" for gender). Quasi-suspect (gender, illegitimacy).
• Rational basis = rationally related to legitimate interest (challenger burden). Everything else (age, wealth, disability).

KEY PRINCIPLE #5 — EQUAL PROTECTION & DUE PROCESS

EQUAL PROTECTION (14th; 5th for fed): classification → pick scrutiny. Facially neutral needs discriminatory intent + effect.

SUBSTANTIVE DUE PROCESS: fundamental rights → strict scrutiny. Fundamental = privacy (marriage, procreation, contraception, family, child-rearing), travel, vote, 1st Amend. Non-fundamental (economic) → rational basis.

PROCEDURAL DUE PROCESS: deprivation of life/liberty/property by gov → notice + hearing. Mathews v. Eldridge balancing: private interest · risk of error/value of safeguards · government interest.

TAKINGS: public use + just compensation. Possessory (per se) · regulatory (denies ALL economic value = Lukas; else Penn Central factors) · exactions (essential nexus + rough proportionality).

KEY PRINCIPLE #6 — FIRST AMENDMENT: SPEECH

Content-based → strict scrutiny. Content-neutral (time/place/manner) in public forum → narrowly tailored to significant interest + ample alternatives.

• Unprotected/low-value: incitement (Brandenburg: intent + imminent + likely) · fighting words · true threats · obscenity (Miller: prurient + patently offensive + lacks SLAPS value) · defamation · child porn.
• Prior restraints disfavored; vagueness/overbreadth doctrines.
• Forums: public/designated (strict for content) · limited/nonpublic (reasonable + viewpoint-neutral).
• Commercial speech (Central Hudson): lawful + non-misleading → intermediate (substantial interest + directly advances + narrowly tailored).
• Symbolic speech (O'Brien): important interest + unrelated to suppression + narrowly tailored.

KEY PRINCIPLE #7 — FIRST AMENDMENT: RELIGION & ASSOCIATION

• ESTABLISHMENT: no government endorsement/coercion; history & tradition; (older Lemon: secular purpose + primary effect neither advances/inhibits + no excessive entanglement).
• FREE EXERCISE: neutral law of general applicability → no exemption (Smith); law targeting religion → strict scrutiny.
• ASSOCIATION: strict scrutiny to punish membership (intent to further illegal ends + active + knowledge).

KEY PRINCIPLE #8 — OTHER INDIVIDUAL RIGHTS & LIMITS

• CONTRACTS CLAUSE: states only. Private contracts → substantial impairment + reasonable/necessary to important purpose. Public contracts → stricter.
• EX POST FACTO (criminal retroactivity) & BILLS OF ATTAINDER (legislative punishment) — both governments.

• ADDITIONAL HIGH-YIELD POINTS

  Organizational & legislative standing. An association has standing if its members would have standing, the interest is germane to its purpose, and neither the claim nor relief requires individual member participation. Legislators rarely have standing; states may sue to protect quasi-sovereign (parens patriae) interests.

  Commerce Clause — the non-economic ceiling. Congress may reach intrastate activity that substantially affects interstate commerce, aggregating across actors for economic activity (Wickard/Raich). It may not aggregate purely non-economic conduct (Lopez/Morrison) and may not compel individuals to enter commerce (NFIB).

  Taxing & Spending — coercion limit. Conditional grants must be unambiguous, related to the federal interest, and not unduly coercive. Threatening to withdraw existing funds so large as to leave no real choice is unconstitutional coercion (NFIB Medicaid holding).

  §5 Fourteenth Amendment — congruence & proportionality. Congress may enforce, but not expand or redefine, Fourteenth Amendment rights; remedial legislation must be congruent and proportional to documented violations (Boerne). §5 power reaches the states and abrogates Eleventh Amendment immunity; the Commerce power does not.

  Executive power — Youngstown tiers. Power is greatest when acting with Congress's authorization, uncertain in the "zone of twilight" of congressional silence, and weakest when acting against Congress's expressed will. Mnemonic: Maximum / Twilight / Lowest ebb. No line-item veto; impoundment limited.

  Appointments, removal & delegation. Principal officers require presidential nomination + Senate confirmation; inferior officers may be vested in President, courts, or department heads. Congress cannot reserve removal of executive officers to itself. Non-delegation upheld if an "intelligible principle" guides the agency.

  Immunities & privileges of office. Speech-or-Debate Clause shields legislators for legislative acts. The President has absolute immunity from civil damages for official acts and a qualified executive privilege over communications (yielding to a demonstrated criminal-trial need, U.S. v. Nixon).

  Preemption presumptions. Courts presume against preemption in fields of traditional state police power; preemption requires clear congressional intent. Conflict preemption arises where compliance with both is impossible or state law obstructs federal objectives.

  State-action doctrine — pinning down "entanglement." Private conduct becomes state action through the public-function test (exclusively/traditionally governmental, e.g., running elections/company town) or significant state involvement (encouragement, joint participation, symbiosis). Mere licensing, funding, or regulation is usually insufficient.

  Procedural due process — what triggers it. A protected "property" interest requires a legitimate claim of entitlement (statute/contract/rules), not a mere expectation; "liberty" includes reputation-plus and physical restraint. The deprivation must be intentional or reckless, not merely negligent (Daniels).

  Fundamental rights under SDP — the abortion shift. Post-Dobbs, abortion is no longer a fundamental right and is reviewed under rational basis. Recognized fundamental rights include marriage, contraception, procreation, family living arrangements, parental child-rearing, interstate travel, and refusal of medical treatment.

  Equal protection — affirmative action. All racial classifications, even benign, get strict scrutiny. Race-conscious university admissions are now unconstitutional (SFFA v. Harvard); diversity is not a compelling interest justifying racial preferences. Remedying the state's own proven past discrimination remains a recognized compelling interest.

  Takings — the per-se categories. A permanent physical occupation, however small, is a taking (Loretto). A regulation denying all economically viable use is a taking unless background nuisance principles already barred the use (Lucas). Temporary and conditional-permit exactions also implicate the clause.

  Free speech — government speech & the unconstitutional-conditions doctrine. Government speech is not subject to free-speech scrutiny and may be viewpoint-based. Government may not condition a benefit on surrendering a constitutional right where the condition reaches beyond the funded program itself.

  Free speech — public-employee & school speech. Public employees: speech on matters of public concern made as a citizen gets Pickering balancing; speech pursuant to official duties is unprotected (Garcetti). Student speech may be restricted if it materially disrupts school (Tinker).

  Establishment & Free Exercise — the modern frame. Establishment claims now turn on historical practice and tradition rather than Lemon (Kennedy v. Bremerton). States may not exclude religious individuals/institutions from generally available public benefits solely because they are religious (Trinity Lutheran/Carson).

  ★ ONE-LINE ATTACK ORDER

  Justiciability (standing/ripeness/mootness/political question) → state action → power source (commerce/spending/§5; executive) → federalism limits (10th, dormant Commerce Clause, preemption, P&I) → individual rights (pick the scrutiny: DP, EP, takings, 1st Amendment speech/religion).