Law School Mini-Outline:

Constitutional Law
 CONSTITUTIONAL LAW

JUDICIAL REVIEW
For a federal court to review a case, there must be a case or controversy and subject-matter jurisdiction. See
Law School Mini-Outline - Civil Procedure.

Case or Controversy: exists if (1) the plaintiff has standing, (2) the claim is ripe when the lawsuit is filed,
(3) the claim is not mooted, and (4) the lawsuit does not seek an advisory opinion.

(1) Standing: has three requirements:

(1) An injury in fact (i.e., must be concrete and not hypothetical);
(2) Causation (i.e., must be fairly traceable to the conduct of the defendant); and
(3) Redressability (i.e., the injury is likely to be rectified by a favorable court decision).

• Citizenship Standing: individuals cannot challenge conduct merely because they are citizens.

• Taxpayer Standing: taxpayers have no standing to challenge how their tax contributions are
used. But there are two exceptions: (1) challenging the collection of a specific tax assessment
or (2) challenging congressional spending on the grounds that it violates the First Amendment’s
prohibition on the establishment of religion.

• Third-Party Standing: a third party cannot bring an action on behalf of another unless there is (1) a
hindrance to the injured party bringing the action herself and (2) a close relationship between parties
such that the third party will adequately advocate for the injured party.

• Organizational Standing: an organization may bring a federal cause of action on behalf of its
members if it can show (1) one or more of its members would have standing to bring the case, (2) the
claims are related to the organization’s purpose, and (3) the litigation of the case will not involve the
participation of those members who have been injured.

• Class-Action Standing: the class representative must have standing to bring the case as an initial
matter. But if a class member’s injury is redressed during the pendency of the case, that will not
destroy standing for the remaining class members.

(2) Ripeness: a case is not ripe when the harm has not yet occurred and is not imminent.
Two factors used to determine ripeness are (1) the fitness of the issues for current
adjudication and (2) the hardship to the parties if the claim is not heard.

(3) Mootness: a case is moot if a court ruling would no longer remedy the problem or make
the plaintiff whole.

• Exceptions: a claim is not moot if:

(1) The defendant voluntarily ceases the challenged event/action and it is likely to recur; or

(2) The action is (a) so short in duration that it will be moot before the resolution of the case, and
(b) there is a reasonable probability the same plaintiff will suffer the same injury in the future.

Advisory Opinions: do not adjudicate a legal dispute but merely give advice to another branch of
(4) 
government on the constitutionality of a law or action. Federal courts do not give advisory opinions,
although some state courts are authorized by their state constitutions to do so.

Political Questions: (this topic is rarely tested) courts may not decide political questions; a matter qualifies
as a political question if:
(1) There is a textual, constitutional commitment of the issue to another branch of government;
(2) There is a lack of judicially discoverable and manageable standards for resolving the question;

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(3) The matter requires making a policy determination;

(4) It is impossible to decide the matter without disrespecting a coordinate political department;

(5) There is an unusual need for unquestioning adherence to a previously decided political issue; or

(6) There is potential embarrassment from inconsistent decisions.

Abstention: a federal court may decline to hear a case over which it has jurisdiction when there
is a potential for conflict with state courts over interpretations of state law and policy (i.e., unsettled issues of
state law, ongoing state criminal prosecutions, and state court civil enforcement proceedings).

Relationship Between Federal and State Courts: state court decisions are final on matters of state
law but not on questions of federal law, including constitutional law. With certain exceptions, the U.S.
Supreme Court may review the decisions of states’ highest courts on matters of federal law to ensure (1)
uniform application of federal constitutional law throughout the country and (2) the finality of litigated federal
law issues.

• Limits on the U.S. Supreme Court’s Jurisdiction: there are two limits on the Supreme Court’s
ability to review state court decisions:

(1) Highest State Court: the appeal must be from a final judgment by the highest state court. A decision
of an intermediate state court might be reviewed by the Supreme Court if either there was no right of
appeal to the state’s highest court or where the state’s highest court declined to exercise its power to
review the decision. In either case, there would be a final judgment that could be subject to Supreme
Court review.

(2) No Adequate and Independent State Law Ground: the decision cannot rest on an adequate and
independent state law ground. If there is an adequate and independent state law ground, then
the Supreme Court’s ruling on a federal law or constitutional issue would not have any practical
effect on the outcome of the case or controversy.

Congressional Power to Define and Limit the Federal Courts: the Constitution vests in Congress
the powers to create inferior courts and to make exceptions to the appellate jurisdiction of federal courts; this
congressional power is plenary (i.e., no internal limits), but it cannot violate another part of the Constitution.

LEGISLATIVE POWERS
Necessary and Proper Clause: Congress has the power to make laws that are (1) necessary
(i.e., convenient or useful) and (2) proper to executing its other powers (i.e., legitimately related to another
existing power).

Taxing Power: Congress can enact taxing measures that (1) raise revenue for the general welfare and (2)
are not a penalty (i.e., unduly coercive or enacted to discourage certain private behavior).

Spending Power: Congress can spend federal money for the general welfare, but it can only impose
conditions on federal grants to states if the condition is:
(1) Clear and unambiguous (i.e., states understand the consequences of accepting/not accepting);
(2) Related to a legitimate federal interest;
(3) Not unduly coercive (i.e., does not threaten to cut off other funding if the state does not adopt the
policy changes); and
(4) Constitutional (i.e., does not violate any other part of the Constitution).

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Commerce Clause: Congress can regulate commerce with foreign nations, among several states, and with
the Indian tribes. The commerce power cannot be used to compel participation in commercial activity. There
are three interstate commerce activities that can be regulated:

(1) Channels: areas in which interstate commerce moves (e.g., air, road, cyberspace, waters).

Instrumentalities and Persons/Things: items and ways in which items are carried across state
(2) 
lines (e.g., computers, cars, railroads, ships, airplanes).

Activities Having a Substantial Effect on Interstate Commerce: private activities can be

(3) 
regulated if the cumulative impact of the individuals and entities engaging in the activities has a
substantial effect on interstate commerce. Economic activities are more likely to have a substantial
effect than noneconomic activities.

Dormant Commerce Clause: states cannot:

(1) Discriminate against interstate commerce unless the state has a compelling interest for enacting the law
and there is no less restrictive way of achieving that interest (i.e., strict scrutiny); or

(2) Place an undue burden on interstate commerce. Courts use the undue burden test, a balancing test that
weighs the burdens of a state law against its local benefits. However, in the absence of a showing of
discrimination, the judiciary will only rarely engage in a cost-benefit analysis to determine whether a
law places an undue burden on interstate commerce.

• Discriminatory: a law is discriminatory on its face if it (1) treats out-of-staters different from in-staters
or (2) clearly gives economic protection to in-state residents.

• Neutral: if a law is neutral (i.e., the disproportionate impact is purely accidental and only affects
some out-of-state businesses), then the undue burden test above is used.

• Exceptions: there are three exceptions:

(1) Market Participant Exception: a state may discriminate against out-of-state interests if the state is
acting as a participant (i.e., a buyer or seller) rather than a regulator.

(2) Publicly Owned Enterprise: even where the state is acting as a regulator, it may discriminate
against out-of-state interests in favor of a publicly owned enterprise if the regulation is an exercise
of a traditional government function.

(3) Express Congressional Authorization: Congress may enact a statute that expressly authorizes states
to discriminate against nonresidents regarding interstate commerce. Congress may also expressly
authorize compacts or agreements between states; they essentially function as contracts between
states. Congress’s consent transforms interstate compacts into federal law.

• State Taxation: a state tax on a business will generally be upheld if:

(1) The activity being taxed has a substantial nexus with the taxing state;
(2) The tax is fairly apportioned so that it applies only to the in-state business activity;
(3) The tax does not discriminate against interstate commerce; and
(4) The tax is fairly related to the services the state provides.

War and Foreign Powers: Congress can (1) declare war, (2) fund and maintain the armed forces, (3)
confirm high-ranking executive branch officials by majority votes, (4) ratify treaties by a vote of at least two
thirds of its members, and (5) address post-war problems.

Nondelegation Doctrine: Congress cannot abdicate or transfer its essential legislative functions, but it can
make delegations to agencies if there is an intelligible principle on which to base the regulations.

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Power to Enforce Amendments: the 13th, 14th, and 15th Amendments empower Congress to enforce
their respective guarantees through appropriate legislation.

EXECUTIVE POWERS
Article II Powers: the president has the power to:
(1) Sign or veto legislative bills (i.e., presentment);
(2) Enforce laws (i.e., take care clause);
(3) Appoint and remove officers of the U.S. (i.e., officials having substantial policymaking
authority within the executive branch);
(4) Grant reprieves and pardons for offenses against the U.S., except in cases of impeachment; and
(5) Command the U.S. armed forces.

Treaty and Foreign Affairs Powers: the president has the power to:
(1) Recognize/not recognize foreign nations;
(2) Meet with foreign leaders;
(3) Withdraw from treaties without the advice or consent of Congress; and
(4) Make international agreements in areas such as trade or troop deployment.

Relationship to Congressional Powers: there are three categories of presidential powers:

Express/Implied: presidential authority is at its maximum if the president acts with express or
(1) 
implied congressional authorization.

(2) Zone of Twilight: presidential authority is less certain in the face of congressional inaction.

No Authorization: presidential authority is at its minimum if the president acts contrary to

(3) 
congressional authorization and only under the president’s own constitutional (e.g., Article II) powers.

Congressional Limits on the Executive: there are four congressional limits on the executive branch.

Creation and Funding: Congress establishes the cabinet and other offices in the executive branch that
(1) 
the president may fill, and it may abolish those offices as well. Congress funds these offices through its
appropriations power, but it may also defund them or limit their expenditures.

Lawmaking: once a law is made, the president and the executive branch must enforce it. The president
(2) 
also must spend the funds Congress allocates for a particular purpose or program.

Impeachment: the House of Representatives has the power to impeach an official if a majority of
(3) 
those present vote in favor of it. The Senate then has the sole power to hold a trial. A conviction requires
the votes of two thirds of the senators who are present. In the event the officer is convicted of one or
more charges, removal is automatic. An additional available impeachment sanction is disqualification
for life from holding any office of the United States.

• Treason: a person can be convicted of treason (“levying war” against the United States, “adhering
to their enemies, [or] giving them aid and comfort”) only upon the testimony of two witnesses to
the same overt act or upon the accused’s confession in open court. When a person charged with
treason is a high-ranking federal official, the official may be impeached, tried separately in court,
or both.

Restrictions on Removal: Congress may place restrictions or conditions on a president’s power to

(4) 
remove quasi-legislative and quasi-judicial officials. However, Congress may not restrict the president’s
removal of purely executive officers.

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• Inferior Officers: Congress created the civil service and enacted restrictions on how civil servants
may be discharged. Congress also has created positions (e.g., special counsel) and limited their
removal.

• Legislative Veto: is a provision in a federal statute that gives one or both houses of Congress the
authority to nullify, by means of a resolution, administrative action taken pursuant to the statute. The
Supreme Court has ruled that a legislative veto is generally invalid because (1) allowing a single
chamber to veto executive action violates the bicameral representation provided in Article I, and (2)
even when a legislative veto requires action by both chambers, it will likely violate the presentment
clause because it denies the president the opportunity to veto it.

INTERGOVERNMENTAL IMMUNITIES AND RELATIONS

Federal Immunity: states cannot regulate or tax the federal government or its instrumentalities.

State Immunity and the 10th Amendment: states have no immunity from federal regulation, but
the10th Amendment grants states local police power and state autonomy from federal overreaching. There
are two anti-commandeering principles: (1) legislative commandeering and (2) executive commandeering.

(1) Legislative Commandeering: the federal government cannot require states to enact any particular
legislation, but it can make conditional appropriations. See Spending Power.

(2) Executive Commandeering: the federal government cannot require states to perform executive
functions, but there is no commandeering when a law regulates state governments in a manner similar
to private entities who perform the same types of functions.

11th Amendment: bars states from being sued for damages in federal court unless:
(1) The state consents to being sued;
(2) C
 ongress has passed a law that clearly and unambiguously abrogates the states’ sovereign immunity;
or
(3) T he lawsuit is against a state official to enjoin the official from committing a violation of federal law or
suing the official for money damages (paid for personally, not from the state treasury).

Judicial Immunity: judges are absolutely immune from civil suits for damages when they are performing their
official judicial duties, but only have qualified immunity for other administrative functions, such as disciplining an
employee.

Legislator Immunity: congressional members performing their official duties are absolutely protected from
punitive or judicial sanctions (e.g., speech or debate clause).

Executive Immunity: presidents are immune from civil lawsuits based on their official conduct, but are not
immune from civil lawsuits based on pre-presidential conduct.

• Federal Prosecutors and Other Executive Branch Officials: have absolute or qualified
immunity, depending on their offices and functions. Federal prosecutors have absolute immunity from
criminal prosecution based on their official prosecutorial conduct or for actions within the scope of
their prosecutorial duties. It does not extend to investigatory functions, for which a prosecutor would
have qualified immunity (similar to law enforcement officers).

• Impeachment: the president, vice president, and all civil officers of the U.S. shall be removed from
office for treason, bribery, or other high crimes and misdemeanors.

• Prosecution: presidents can be prosecuted after being removed from or leaving office for official or
unofficial actions taken during the presidency, but it is unclear whether the president can be criminally
prosecuted while in office.

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Full Faith and Credit Clause: requires a state to respect the laws, public records, and judicial judgments
of every other state. See Law School Mini-Outline - Conflicts of Law.

PREEMPTION
Supremacy Clause: requires states to recognize the Constitution and federal laws as the supreme law of
the land and mandates that the federal government will prevail if there is any conflict between a valid federal
law or action and a state law or action.

There are two types of preemption:

(1) E
 xpress Preemption: occurs when a federal law explicitly declares it is preempting contrary or
conflicting state laws.

(2) Implied Preemption: arises when a state and federal law conflict and:
(1) It is impossible to comply with both laws at the same time;
(2) The state law interferes with or is an obstacle to the purposes of the federal law; or
(3) The state law seeks to regulate a field that is already fully regulated by the federal government
(i.e., field preemption).

• Stronger State Protections: federal law protections, in the form of either the Constitution or federal
statutes, provide the floor below which states may never go. However, states, in their own constitutions
or legislation, may go above that floor in granting certain guarantees or entitlements. Thus, where a
state offers more protections than the federal law, there is no preemption.

STATE ACTION
Incorporation Doctrine: nearly all the rights in the Bill of Rights are applicable to the states because they
have been incorporated by the 14th Amendment’s due process clause.

Reverse Incorporation: the 14th Amendment due process and equal protection protections apply to the
federal government through the due process clause of the Fifth Amendment.

State Action: constitutional rights claims under the Fifth Amendment (federal) or 14th Amendment (state)
can only be brought against a defendant who is a government actor. To determine if there was a state action
when a private entity is the actor, courts consider whether:
(1) The private entity performed a public function performed by and exclusively reserved by the state;
(2) The private entity acted with significant state involvement or entwinement (i.e., government action
appears to promote or endorse the activity or there is a symbiotic relationship between the government
and private actors); and
(3) The private action was judicially enforced (if yes, there is state action).

FOURTEENTH AMENDMENT
General Due Process:

• Vagueness: a law is void if (1) it does not give an average person fair notice of the conduct
proscribed, or (2) it is so lacking in standards that it is ripe for discriminatory enforcement.

• Access to Courts and Impartial Decisionmaker: legal proceedings must be available, fair,
unbiased, and impartial (e.g., there must be a mechanism by which an indigent person can have
fees waived).

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Substantive Due Process: if a law or government action impinges a fundamental right, it must pass strict
scrutiny. When no fundamental right is involved, the level of scrutiny is rational basis.

• Fundamental Rights: include rights that are (1) implicit in the scheme of our ordered liberty and (2)
deeply rooted in this nation’s history and tradition. The following rights are fundamental:
(1) Parental rights to care, custody, and control of children;
(2) Right to family life and household cohabitation (for biological relatives);
(3) Right to contraception;
(4) Right to marry;
(5) Right to procreate;
(6) Right to consensual, adult sexual intimacy;
(7) Right to vote;
(8) Right to interstate travel; and
(9) Right to access the courts.

• Strict Scrutiny: (1) the government interest must be compelling, and (2) the means chosen must be
narrowly tailored (i.e., necessary and least restrictive).

• Rational Basis: (1) the government interest must be legitimate, and (2) the means chosen must be
reasonably related. Rational basis review applies to economic, social, and educational interests.

o M
 edical Interests: there is no fundamental right to die with dignity or die by assisted suicide; rational
basis review applies. However, there is a constitutionally protected liberty interest to refuse medical
treatment, and a state may require that there be clear and convincing evidence that an individual
wished to have lifesaving medical treatment withdrawn before allowing it to be done.

• Abortion: in Dobbs v. Jackson Women’s Health Organization (2022), the Supreme Court overturned
Roe v. Wade (1973), which found a right to an abortion in certain circumstances. The Dobbs court
also expressly overturned Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which
upheld Roe but allowed the government to impose regulations in furtherance of a pregnant person’s
life or health if the regulations are not an undue burden on or place a substantial obstacle to the right
to an abortion. Although the Dobbs court stated that its ruling should not cast doubt on precedents not
concerning abortion, it also stressed that “history and tradition” are the guides in determining which
rights are encompassed by the term “liberty” in the due process clause. In overruling Roe, the Supreme
Court found that Roe ignored or misstated the history. Thus, it is possible that the Supreme Court could
come to a similar conclusion with regard to rights previously found to have sufficient historical roots as
to be considered fundamental.

Procedural Due Process: if the government deprives someone of a protected life, liberty, or property
interest, courts consider three factors to determine the process required:
(1) The individual’s interests in retaining his property or liberty and the injury threatened by the official
action;
(2) The risk of error through the procedures used and probable value, if any, of additional or substitute
procedural safeguards; and
(3) The government’s interest in efficient adjudication and the administrative burden and cost of the
additional process.

• Liberty Interests: include termination of parental rights, proof of paternity, and freedom from
confinement (including mental health confinement, enemy combatant imprisonment, and parole
revocation).

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• Property Interests: include entitlement to public benefits (welfare/disability), public employees

with a reasonable expectation in continuing employment, public education, property that is subject
to forfeiture, wages that are subject to garnishment, licenses, and fines or fees to the government that
are due to be refunded.

•  Process: the minimum process due is notice and an opportunity to be heard and the maximum
process is a full trial with an avenue for appeal.

Equal Protection Clause: applies when a governmental actor treats one person or group differently from
another person or group based on a classification. The level of scrutiny depends on the classification. To find a
suspect or quasi-suspect classification, there must a (1) disparate impact and (2) government intent.

• Strict Scrutiny: applies if the claim concerns a suspect class (i.e., race, ethnicity, national origin),
classifications involving fundamental rights, and state discrimination based on citizenship status
that is not related to a political function. This test requires that (1) the government interest must be
compelling, and (2) the means chosen must be narrowly tailored (i.e., necessary, neither overinclusive
nor underinclusive).

o E
 xamples of Compelling Interests: remedying past discrimination if it was intentional, a specific
actor, and not remote in time; enforcement of the Voting Rights Act; and national security during
wartime.

• Intermediate Scrutiny: applies if the claim concerns a quasi-suspect class (i.e., sex/
gender, illegitimacy), and access to education for undocumented children. This test requires that (1)
the government interest must be important, and (2) the means chosen must be substantially related
(i.e., the government’s justification must be exceedingly persuasive, genuine, not hypothesized or
invented post-hoc, and not rely on overbroad generalizations).

o E
 xamples of Important Interests: remedying past discrimination; laws and actions based on
physical differences and legal status differences.

• Rational Basis: applies to all other classifications (e.g., age, wealth, disability status, federal
discrimination based on citizenship status, sexual orientation, right to international travel, candidacy for
public office, speaking a different language). This test requires that (1) the government interest must be
legitimate, and (2) the means chosen must be reasonably related.

• Burden of Proof: the burden is on the government when strict or intermediate scrutiny applies. If
rational basis applies, the burden is on the challenger.

• Government Animus: if the government interest is based on animus (i.e., ill will based on prejudice
or spite), then the action is unconstitutional, no matter what the level of scrutiny.

PRIVILEGES AND IMMUNITIES

Article IV: protects the rights of state citizenship (e.g., right to travel between states) and is limited to
fundamental rights and important economic activities (e.g., right to earn a living).

• Substantial Justification Standard: states can enact laws that discriminate against citizens of
another state if (1) the nonresidents are the peculiar source of evil to be remedied, and (2) there are
no less restrictive means to solve the problem.

14th Amendment: protects rights of national citizenship (e.g., right to travel between states, access to
government, right to demand protection of the federal government on the high seas or abroad, right of assembly,
the privilege of habeas corpus, right to use U.S. navigable waters, and rights secured by treaty).

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FIRST AMENDMENT
Freedom of Religion: religion is not limited to a particular set of religious beliefs, such as belief in
a supreme being. Courts are not permitted to inquire into the truth or falsity of a religious belief.

• Establishment Clause: prohibits the government from “establishing” a religion. In Kennedy v.

Bremerton School District (2022), the Supreme Court abandoned the long-standing establishment
clause test from Lemon v. Kurtzman (1971) and its endorsement test offshoot. The court stated that
the establishment clause must be interpreted in accord with history and must faithfully reflect the
understanding of the Founding Fathers. Government coercion is a violation of the establishment clause.
The government may not coerce anyone to attend church or force citizens to engage in formal religious
exercise. But mere offense does not constitute coercion.

• Free Exercise Clause: protects religious beliefs and practices. If a law or government action
targets a religion or exhibits hostility to a religion, then the law or action is subject to strict scrutiny.
If the law is neutral, but has an effect on religious practice, then it is subject to rational basis review.

o Strict Scrutiny: (1) the government interest must be compelling, and (2) the means chosen must be
narrowly tailored.

o Rational Basis: (1) the government interest must be legitimate, and (2) the means chosen must be
reasonably/rationally related.

Freedom of Speech: protects spoken or written word, music, art, films, parades, symbolic speech (i.e., an
act committed with the intent to convey a particular message), and government-compelled speech.

• Content-Based Regulations: when the government regulates expression based on its content, the
government action is subject to strict scrutiny (i.e., it must further a compelling interest and the means
must be narrowly tailored to achieve that interest).

o Categories of Content-Based Regulations:

(1) Subject-matter regulations that restrict speech related to particular topics.

(2) Viewpoint regulations that restrict speech on a particular perspective on a topic.

o Examples of Content-Based Regulations: regulations related to signage, hate speech that does not
constitute fighting words or a true threat, and disparagement speech.

• Content-Neutral Regulations: are aimed at the time, place, or manner of the expression.
Time, place, and manner restrictions in a traditional public forum and its functional equivalents are
constitutional if they satisfy intermediate scrutiny:
(1) The government has a significant/substantial interest unrelated to the suppression of speech;
(2) The means chosen are narrowly tailored (but not necessarily the least restrictive means); and
(3) There are ample alternative channels of communication.

• Forum Doctrine: there are several types of forums, each with a different standard of review.

(1) 
Traditional Public Forums: include places that have traditionally been held for public use (e.g.,
sidewalks, public squares). Content restrictions applied to a traditional public forums will be subject
to strict scrutiny. Time, place, and manner restrictions are subject to intermediate scrutiny as described
previously. See Content-Neutral Regulations.

(2) 
Limited/Designated Public Forums: include places that the government can choose to open to
speech (e.g., public school classrooms, government-owned buildings open for speech). The level
of scrutiny that applies is the same as traditional public forums (intermediate scrutiny), except that
the government can close a designated public forum, and its restrictions are evaluated in light of
the government purpose in designating the forum.
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(3) 
Nonpublic/Closed Public Forums: include government-owned property that is not open for speech
(e.g., airports, polling places). If the regulation is not viewpoint neutral, then it will be subject to strict
scrutiny. If it is viewpoint neutral, then the regulation is valid if the regulation of speech is reasonable
in light of the purpose served by the forum.

(4) 
Non-Forums: include private property and other government-owned property that is not a public forum.
The forum analysis will not apply, and First Amendment claims will fail.

• Unprotected Speech: receives no First Amendment protection.

(1) Government Speech: includes when the government is speaking for itself.

(2) 
Obscenity: includes material that, taken as a whole, (1) appeals to the prurient interest, (2) is
patently offensive, and (3) lacks any serious literary, artistic, political, or scientific value, as
judged by a national standard.

(3) 
Child Pornography: includes a wide range of sexual depictions of children; does not include
adults who look like children or virtual images of children.

(4) 
Threats: include true threats that (1) are directed at a person or group of persons; (2) are not
satire, purely hypothetical, or political hyperbole; (3) involve imminence; and (4) are uttered by
the speaker in conscious disregard of a substantial risk that the statement would be viewed as
threatening in nature.

(5) 
Incitement to Illegal Activity: includes (1) offers or incitement to engage in illegal
action (2) that involve imminence and (3) are likely to incite or produce such action.

(6) 
Fighting Words: include words that by their very utterance inflict injury or tend to incite an
immediate breach of the peace.

• Commercial Speech: includes speech that proposes a commercial transaction (e.g., advertising) or
occurs in commercial contexts. If commercial speech is not false or misleading and does not pertain to
unlawful activity, regulations of that speech are subject to intermediate scrutiny:

(1) The government interest must be substantial;

(2) The restriction must directly advance the state interest; and

(3) If the state interest could be served by a more limited restriction, then excess restrictions cannot
survive.

• Special Capacity: the government’s actions are treated differently in some situations where it is
acting in a special capacity rather than as a sovereign.

o P
 ublic Schools: may infringe on the expression of students if the expression would materially and
substantially interfere with appropriate discipline in the operation of the school. But there is more
authority to regulate content that is sexually oriented, related to illegal drug use, or curricular speech
(e.g., connected to school-related activities). In those cases, the regulation must be reasonably
related to legitimate pedagogical objectives.

o P
 ublic Employees: expressing themselves as citizens on a matter of public concern receive First
Amendment protection. Courts balance the employee’s interest against the government’s.

o P
 olitical Expression: government employees do not have a First Amendment right to actively
campaign for political candidates.

o P
 ublic-Employee Unions: a public-employee union’s compelled subsidy is subject to exacting
scrutiny; there must be a compelling government interest that cannot be achieved through means
significantly less restrictive of associational freedoms.

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o Bar Associations: government attorneys can be compelled to pay dues to a required bar association,
but those dues can be used only to support regulation of the legal profession; the fees cannot be
used to support activities that are political or ideological in nature.

o Campaign Finance: regulations are valid if there is a sufficiently important interest and the
regulations are closely drawn (i.e., exacting scrutiny test).

o Corporate Expenditures: a limitation on independent corporate and organization expenditures (not

coordinated with a candidate), including speech expressly advocating for a particular candidate or
issue, is political speech that cannot be curtailed without a compelling government interest and narrowly
tailored means to achieve that interest (i.e., strict scrutiny).

o Judicial Elections: the government may restrict a judicial candidate’s speech only if the restriction
is narrowly tailored to serve a compelling interest.

• Expressive Conduct: regulations on expressive conduct that have an incidental burden on speech
are analyzed under an intermediate scrutiny test: (1) the government action must further an important/
substantial government interest that is unrelated to the suppression of speech, and (2) the regulation must
prohibit no more speech than is necessary to further that interest.

• Prior Restraints: include the prohibition on speech before it has occurred. These regulations are
subject to strict scrutiny. The regulation must serve a compelling governmental interest that is achieved
by narrowly tailored means.

• Vagueness: a law is void for vagueness if (1) it does not give an average person fair notice of
what conduct is being proscribed, or (2) it is so lacking in standards that it is ripe for discriminatory
enforcement.

• Overbreadth: a law is facially invalid as overbroad if it prohibits a substantial amount of protected

speech in comparison with the unprotected speech.

Freedom of the Press: the press and public are on the same First Amendment footing. The First Amendment
protections are the same. Several torts, such as defamation, intentional infliction of emotional distress, invasion
of privacy, and false-light publicity, are subject to the same First Amendment constraints, whether or not the
press is involved. See Law School Mini-Outline - Torts.

Freedom of Association: infringements on the right to associate are subject to strict scrutiny. The regulation
must serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms.

TAKINGS
Under the Fifth Amendment, (1) private property cannot be taken (2) by the government (3) for public use (4)
without just compensation.

Private Property: includes rights in real and personal property, including intangibles and economic use.

Government Taking: includes physical and regulatory takings.

(1) Physical Taking: involves the permanent physical occupation or damage of property, even a
small portion of it.

(2) Regulatory Taking: occurs when a government destroys someone’s property rights or denies
economically beneficial or productive use of property through regulation.

• Total Regulatory Taking: occurs if the regulation completely eliminates economic use, unless the
landowner’s expectation of use is unreasonable.

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 CONSTITUTIONAL LAW

• Partial Regulatory Taking: courts consider the following factors:

(1) The economic impact of a regulation on a property owner;
(2) The extent the regulation interferes with distinct investment-backed expectations; and
(3) The character of the government action.

• Land-Use Exaction: conditions placed on a building or construction permit is a taking if there is no

essential nexus between the condition and a legitimate state interest.

Public Use: the property is taken for public use if the action is reasonably related to a public or community
purpose.

Just Compensation: is the fair market value at the time of the taking, which means the highest amount the
owner would receive in a voluntary exchange.

OTHER AMENDMENTS AND PROTECTIONS

Second Amendment: guarantees the right to keep an ordinary firearm at home for self-defense.

13th Amendment: prohibits slavery in the United States, including private and government actions; it
abolishes involuntary servitude except when someone has been “duly convicted” of a crime. Congress’s power
to enforce the amendment through “appropriate legislation” enables it to enact legislation redressing the vestiges
of slavery.

Contracts Clause: is violated if:

(1) There is a preexisting contract;
(2) The state government enacted the challenged law/regulation;
(3) The law/regulation substantially impairs the contractual relationship (e.g., undermines the bargain,
interferes with a party’s reasonable expectations, prevents the party from safeguarding or reinstating
the party’s rights); and
(4) T he regulation does not serve a significant and legitimate public purpose, or if it serves such a purpose,
the means chosen are not reasonable.

Ex Post Facto Laws: are unconstitutional if:

(1) The government action is legislative or regulatory;
(2) The law/regulation is criminal in nature; and
(3) T he law/regulation retroactively imposes punishment (e.g., alters the definition of criminal conduct,
lowers the evidentiary standard, increases punishment for a crime, or deprives a person charged with
a crime of a legal defense available when the act was committed).

Bill of Attainder: a government action is unconstitutional if:

(1) The government action is legislative or regulatory;
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(2) The law/regulation singles out specific individuals for punishment; and
(3) The law/regulation inflicts punishment without a trial.

Unconstitutional Conditions: this principle vindicates constitutional rights by preventing the government
from conditioning receipt of a benefit on the abandonment of a constitutional right. To prevail on such a claim, an
individual must show that the government could not have mandated the individual to do what it tried to pressure
the individual to do through imposing the condition.

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