Constitution Law 2025
A Hornbook for United States Constitutional Law
Prepared for 1L Study and Bar Examination Mastery
Print Edition (6 × 9 inches)
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Published for educational use.
Not legal advice.
© 2025 Law School
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Constitution Law 2025
© 2025 Law School
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopying, recording, or otherwise—without prior written permission from the publisher, except for brief quotations in critical articles or reviews.
This hornbook is for educational purposes only. It is not legal advice, does not create an attorney–client relationship, and should not be relied upon to resolve real-world legal disputes. Readers preparing for law school coursework or bar examinations should consult primary legal authorities and jurisdiction-specific materials.
Printed in the United States of America.
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No Bleed
This hornbook is an academic resource designed to assist students in learning the principles of United States constitutional law. It is not intended as legal advice, nor is it a substitute for consulting an attorney licensed to practice in the relevant jurisdiction. Constitutional doctrine evolves over time, and while this book reflects current law as of 2025, readers should verify controlling authorities in their jurisdiction. Neither the author nor the publisher assumes liability for any actions taken or omitted in reliance on this text.
This hornbook began with a simple premise: constitutional law becomes far easier to master when its doctrines are organized through structure, not memorization. The Constitution distributes power, restrains government, and protects individual liberty, and nearly every doctrine students encounter follows from one of those themes. The goal of this book is to make those connections explicit, translating a complex body of law into a framework that can be used confidently in a first-year classroom or on a bar examination.
The chapters move from governmental structure to individual rights: judicial review, federal legislative authority, executive power, federalism, due process, equal protection, and finally the First Amendment. Each chapter builds on the last, reinforcing the ways the Constitution allocates power and shapes the limits of governmental action. Throughout, doctrinal discussions are paired with leading cases, summaries of majority and minority rules, and careful notation of jurisdictional splits. These features are included because constitutional law is not monolithic; it grows through interpretation, controversy, and the slow accretion of precedent.
This hornbook’s voice is intentionally expository and doctrinal. It neither advocates outcomes nor predicts them. Instead, it situates legal rules within their broader constitutional architecture so students can understand why doctrines exist, how they interact, and what analytical moves are expected on exams. The aim is clarity without oversimplification, depth without unnecessary complexity.
Although the law evolves, the Constitution remains the organizing thread that connects cases across eras. Studying constitutional law is therefore an exercise in recognizing structure: how power is divided, who may act, and what limits apply. This book is designed to illuminate that structure, giving students a reliable guide through one of the most foundational subjects in American legal education.
A.L.A. — Administrative Law Act
APA — Administrative Procedure Act
Art. — Article
C.J. — Chief Justice
Ct. — Court
EPA — Environmental Protection Agency
FRE — Federal Rules of Evidence
FRCP — Federal Rules of Civil Procedure
I.R.S. — Internal Revenue Service
MPC — Model Penal Code
N&P — Necessary and Proper
SCOTUS — Supreme Court of the United States
U.S. — United States Reports
UCC — Uniform Commercial Code
(Note: These are illustrative and limited to what appears in the hornbook. Additional abbreviations can be added if you want the list expanded.)
Table Of Contents
Constitutional Law Chapter One: Judicial Review And Constitutional Structure 8
Elements, Exceptions, and Defenses 8
Judicial Review: Core Elements 8
Supremacy and Judicial Supremacy 9
Jurisdictional Splits and Policy Considerations 10
Majority and Minority Approaches to Standing 10
Political Question Divergence 10
Supremacy vs. Departmentalism 10
Constitutional Law Chapter Two: Federal Legislative Power and the Commerce Framework 13
Elements, Exceptions, and Defenses 13
Commerce Clause: Doctrinal Elements 13
Necessary and Proper Clause 14
Anti-Commandeering Principle 14
Jurisdictional Splits and Policy Considerations 15
Necessary and Proper Clause Disputes 15
Constitutional Law Chapter Three: Executive Power and Separation of Powers 18
Elements, Exceptions, and Defenses 18
Jurisdictional Splits and Policy Considerations 20
Major Questions Doctrine Divergence 20
Constitutional Law Chapter Four: Federalism and State Power 23
Elements, Exceptions, and Defenses 23
Anti-Commandeering Doctrine 24
Sovereign Immunity and Section 5 Authority 24
Supremacy Clause and Preemption 24
Privileges and Immunities Clause (Article IV) 25
Jurisdictional Splits and Policy Considerations 25
Commandeering vs. Conditional Spending 25
Dormant Commerce Clause Conflicts 25
Sovereign Immunity and Section 5 Enforcement 25
Preemption and State Police Powers 26
Constitutional Law Chapter Five: Due Process: Substantive and Procedural 29
Elements, Exceptions, and Defenses 29
Identifying a Protected Interest 29
Determining Required Procedures 30
Identifying a Fundamental Right 30
Modern Developments in Substantive Due Process 31
Economic and Social Regulation 31
Jurisdictional Splits and Policy Considerations 31
Scope of Substantive Due Process 32
Application of Strict Scrutiny 32
Constitutional Law Chapter Six: Equal Protection and Anti-Discrimination Frameworks 35
Elements, Exceptions, and Defenses 35
Suspect and Quasi-Suspect Classifications 35
Strict Scrutiny: Requirements 36
Intermediate Scrutiny: Requirements 36
Discriminatory Intent Requirement 36
Fundamental-Rights Analysis Under Equal Protection 37
Affirmative Action and Remedial Classifications 37
Jurisdictional Splits and Policy Considerations 37
Application of Animus-Based Rational-Basis Review 37
Gender-Based Intermediate Scrutiny 37
Affirmative Action Post-Obergefell and Modern Developments 37
Intent Requirement Across Circuits 37
Constitutional Law Chapter Seven: First Amendment Speech and Religion 40
Elements, Exceptions, and Defenses 40
Content-Based vs. Content-Neutral Regulation 40
Categories of Unprotected or Less-Protected Speech 41
Neutral and Generally Applicable Laws 42
Strict Scrutiny for Targeting or Burdening Religion 42
Religious Exemptions and Accommodation 42
Tests and Analytical Approaches 42
Public Funding and Religion 43
Prayer and Religious Displays 43
Jurisdictional Splits and Policy Considerations 43
Interpretation of “Content-Based” under Reed 43
Establishment Clause Fragmentation 43
Bibliography / Selected Sources 50
Judicial review forms the backbone of United States constitutional governance. Every doctrine in constitutional law assumes a prior principle: courts have authority to interpret the Constitution, invalidate inconsistent government action, and serve as the arbiter of constitutional meaning. This chapter lays the foundation for understanding that authority, along with the structural principles—textual, historical, and functional—that guide constitutional interpretation. The conversation includes the justiciability doctrines that limit federal judicial review, the mechanisms of judicial supremacy, and the allocation of interpretive responsibility among the branches.
Federal courts possess the power to review acts of Congress and the executive to determine their conformity with the Constitution. This power arises implicitly from Article III’s grant of judicial power and the structural principle of constitutional supremacy. Judicial review extends to federal statutes, federal executive action, and state laws that conflict with federal law or the Constitution. Judicial review is bounded by justiciability doctrines—standing, ripeness, mootness, and political question limitations—that anchor federal courts to “cases” and “controversies.”
The Constitution is supreme law, binding states and federal actors alike, and courts serve as interpreters of that law. Interpretive approaches include original meaning, textualism, doctrinal synthesis, structural reasoning, and prudential considerations. Although Congress and the President may interpret the Constitution within their own spheres, federal judicial interpretations bind state governments and federal actors unless subsequently altered by constitutional amendment or later Supreme Court decisions.
Judicial review typically engages three basic components. There must be a constitutional provision invoked as a limit. There must be a governmental action subject to review. And there must be a litigant with standing to challenge that action.
Federal courts review:
• Acts of Congress
• Executive orders, regulations, and actions
• State laws, constitutions, and practices
• State-court decisions involving federal questions
Courts generally refrain from reviewing internal congressional rules, political questions committed to other branches, and disputes lacking concrete injury or adversarial posture.
Standing asks whether the plaintiff is a proper party to litigate the claim. The three constitutional standing elements are:
• Injury in fact: Concrete, particularized, and actual or imminent.
• Causation: Injury fairly traceable to defendant’s conduct.
• Redressability: Likely to be remedied by a favorable decision.
Courts sometimes recognize prudential limitations, though modern doctrine trends toward focusing on Article III criteria. Taxpayer standing is generally unavailable except for narrow Establishment Clause challenges under the Flast framework—an exception that courts apply sparingly.
Ripeness requires a dispute sufficiently developed to permit judicial resolution. Mootness requires that a live controversy persist throughout litigation. Exceptions include matters capable of repetition yet evading review, voluntary cessation that could recur, and class actions in which the class has ongoing claims despite mootness of the named plaintiff’s individual claim.
Certain issues are beyond judicial competence or textually committed to another branch. Classic political questions include challenges to foreign affairs recognition, impeachment procedures, and certain disputes concerning partisan gerrymandering. The doctrine stems from prudential and structural considerations rather than explicit text.
Under the Supremacy Clause, federal law supersedes state law in cases of conflict. Federal judicial interpretations of the Constitution bind state courts. Judicial supremacy—recognized in cases like Cooper v. Aaron—holds that the Supreme Court’s constitutional interpretations constitute the supreme law unless altered by amendment or later decisions. Although executive and legislative officials take oaths to the Constitution, the Court remains the final interpreter for purposes of legal uniformity.
Constitutional constraints, particularly the Fourteenth Amendment, ordinarily apply only to governmental actors. State action may arise from public function activities, government entwinement, coercion, or delegation. Private conduct generally falls outside constitutional scrutiny unless tied closely to government authority.
Most courts adhere closely to the concrete injury requirement. A narrower minority—especially in environmental and informational-rights contexts—has been more receptive to probabilistic or risk-based injuries. Federal courts, under Lujan, reject broad citizen-suit standing absent statutory authorization and clear injury.
There is variation in applying the political question doctrine, particularly in election-related disputes. Some courts limit the doctrine substantially, treating most issues as justiciable if judicially manageable standards exist. Others extend political question limits to highly partisan disputes.
A scholarly debate persists: whether each branch may act on its own constitutional interpretation (departmentalism) or whether courts possess interpretive primacy (judicial supremacy). Most federal courts embrace supremacy, emphasizing stability and uniformity. A small minority academic view supports stronger departmentalism.
Judicial review promotes uniformity, prevents constitutional erosion, and checks majoritarian excesses. Justiciability doctrines preserve separation of powers, prevent courts from issuing advisory opinions, and encourage democratic resolution of political disputes. Federal supremacy ensures that constitutional rights apply consistently across states. State action doctrine allocates responsibility to governmental entities while preserving private autonomy.
• Marbury v. Madison (U.S. 1803) — Established judicial review and held that the Constitution is binding law enforceable by courts.
• Martin v. Hunter’s Lessee (U.S. 1816) — Affirmed Supreme Court appellate review of state courts on federal questions.
• Cooper v. Aaron (U.S. 1958) — Declared that Supreme Court interpretations of the Constitution are binding on states.
• Lujan v. Defenders of Wildlife (U.S. 1992) — Tightened Article III standing requirements.
• Allen v. Wright (U.S. 1984) — Rejected broad standing claims based on generalized grievances.
• Baker v. Carr (U.S. 1962) — Framed the modern political question doctrine and held redistricting justiciable.
• Zivotofsky v. Clinton (U.S. 2012) — Clarified that separation-of-powers disputes do not automatically constitute political questions.
When analyzing any constitutional claim, always identify the litigant’s ability to access judicial review before addressing the merits. Standing errors trigger significant point losses on law-school and bar essays. Courts strictly enforce redressability and will dismiss claims that depend on speculative third-party actions.
Ripeness problems frequently arise in pre-enforcement challenges. Students should assess whether the plaintiff faces a credible threat of prosecution or enforcement. Mootness analysis often benefits from identifying classic exceptions, especially issues “capable of repetition yet evading review,” which commonly appear in reproductive-rights, election, and short-duration disputes.
Political question issues require separating textual commitment from prudential considerations. The presence of judicially manageable standards usually tilts the analysis toward justiciability.
State action pitfalls are common. Remember that private entities performing public functions—such as company towns or heavily regulated actors—may trigger constitutional obligations.
Finally, always acknowledge the principle of judicial supremacy when addressing conflicts between state actors and federal courts. Structural issues often turn on the combination of supremacy and uniformity across state and federal systems.
This chapter presented the architecture of judicial review, emphasizing that federal courts hold authority to interpret the Constitution and set aside inconsistent acts of government. Standing, ripeness, and mootness limit the availability of federal judicial power, grounding review in concrete disputes rather than advisory questions. The political question doctrine removes certain issues from judicial competence, while supremacy ensures federal interpretations bind state governments. Interpretive approaches vary—textual, historical, structural—but each fits within the broader framework linking federal courts with constitutional meaning. Leading cases define the doctrinal contours, from the origins of judicial review to modern applications of justiciability tests. These structural principles form the necessary foundation for every later discussion in constitutional law.
Federal legislative power rests on the principle that Congress possesses only the authority granted to it by the Constitution. Most federal statutes trace their constitutional lineage to three primary sources: the Commerce Clause, the Necessary and Proper Clause, and the Taxing and Spending powers. This chapter explores how the Supreme Court defines “commerce,” how it determines whether legislation is truly “necessary and proper” to execute another power, and where the outer boundaries of federal authority lie. These questions form the doctrinal battleground for federalism, state sovereignty, and structural constitutional limits.
Congress may legislate pursuant to enumerated powers, including the regulation of interstate commerce, the raising and spending of revenue, and the enactment of laws necessary and proper to execute federal powers. Commerce Clause doctrine recognizes three categories of permissible regulation: channels of interstate commerce, instrumentalities of commerce, and activities (economic or noneconomic) that substantially affect interstate commerce. Necessary and Proper Clause authority expands congressional capacity when legislation is rationally related to the implementation of an enumerated power, so long as it does not violate an independent constitutional limitation.
Congress may also legislate under its Spending Clause authority by attaching conditions to federal funds, provided the conditions are unambiguous, related to the federal interest, not coercive, and otherwise constitutional. Congress may not commandeer state legislative or executive processes, though it may incentivize states or preempt state law under valid federal authority.
Commerce Clause analysis proceeds through three categories:
Channels of Commerce: Congress may regulate highways, waterways, airspace, and other routes used for interstate transportation.
Instrumentalities of Commerce: Congress may regulate vehicles, aircraft, railroads, and persons or things in interstate commerce.
Substantial Effects: Congress may regulate intrastate activity that exerts a substantial effect on interstate commerce. Economic activities are evaluated under the rational basis test. Noneconomic criminal activity usually requires a tighter fit or jurisdictional element.
The modern limitations stem from United States v. Lopez and United States v. Morrison, which limit federal reach over noneconomic, traditionally local matters. Gonzales v. Raich later reaffirmed broad commerce authority over economic markets, including intrastate possession if it forms part of a larger regulatory scheme.
The Necessary and Proper Clause authorizes Congress to enact laws that are appropriate means for achieving constitutional ends. Legislation must be “plainly adapted” to an enumerated power and must not violate an independent structural principle. The test is deferential: courts typically uphold regulations if the chosen means are rationally related to a legitimate enumerated end. However, the Court enforces limits when a statute intrudes into areas of state sovereignty or disrupts the federal-state balance.
Congress may tax and spend for the general welfare. Under the Spending Clause, Congress may condition federal funds to states if four criteria are met:
• Conditions are unambiguous.
• Conditions relate to the federal program.
• Conditions do not induce unconstitutional conduct.
• Conditions are not coercive.
The coercion inquiry was clarified in NFIB v. Sebelius, which held that Congress cannot threaten to withdraw existing, large-scale funding as a means of compelling state action.
Under the Tenth Amendment framework, Congress may not commandeer state legislative processes or force state executives to administer federal programs. Congress may offer incentives, regulate private individuals directly, or preempt state law, but it may not require states to enact or enforce federal regulatory schemes.
When Congress acts within its enumerated power, federal law may supersede state law under the Supremacy Clause. Preemption comes in three forms:
• Express preemption — statutory text displaces state law.
• Field preemption — federal regulation occupies an entire field.
• Conflict preemption — impossibility or obstacle when state law frustrates federal objectives.
A majority of courts apply Lopez and Morrison to limit federal authority over noneconomic criminal conduct, demanding tighter evidence of substantial effects. A minority leans toward broader deference when activities, even noneconomic ones, integrate into national markets or collective-action problems.
Courts split on how tightly to interpret “proper.” Some read it as a structural limitation preserving state sovereignty, while others treat it as a primarily functional inquiry tied to effectiveness in executing enumerated powers.
Post-NFIB, courts diverge over what constitutes “coercion.” A majority view treats coercion as exceptional; a minority is more protective of states and open to challenges when financial leverage is significant.
States sometimes urge narrow readings of preemption, emphasizing federalism. Federal courts remain divided on obstacle preemption—whether it should be interpreted broadly or cautiously.
Federal legislative power must balance national uniformity with states as laboratories of democracy. Broad commerce authority promotes cohesive national markets but risks centralizing authority. Spending conditions allow federal influence without commandeering but create concerns about fiscal coercion. Preemption fosters nationwide standards while potentially undermining localized experimentation.
• McCulloch v. Maryland (U.S. 1819) — Interpreted Necessary and Proper Clause broadly; upheld national bank.
• Gibbons v. Ogden (U.S. 1824) — Defined commerce as commercial interaction; established expansive federal authority over interstate navigation.
• Wickard v. Filburn (U.S. 1942) — Held that local economic activity can be regulated if its aggregate effects substantially influence interstate markets.
• United States v. Lopez (U.S. 1995) — Struck down federal gun-possession statute; emphasized noneconomic activity limits.
• United States v. Morrison (U.S. 2000) — Reaffirmed limit on federal regulation of noneconomic criminal conduct.
• Gonzales v. Raich (U.S. 2005) — Upheld federal regulation of intrastate medical cannabis as part of a larger scheme.
• New York v. United States (U.S. 1992) — Prohibited federal commandeering of state legislatures.
• Printz v. United States (U.S. 1997) — Barred federal commandeering of state executive officers.
• NFIB v. Sebelius (U.S. 2012) — Limited coercive spending conditions; defined boundaries of Necessary and Proper power.
When analyzing federal power on an exam, always start with the enumerated power, not with the Tenth Amendment. Identify the Commerce Clause category: channel, instrumentality, or substantial effects. For substantial-effects problems, determine whether the activity is economic. Economic activity enjoys highly deferential review. Noneconomic activity demands closer scrutiny and often turns on the presence of a jurisdictional hook.
Spending Clause issues hinge on coercion. Identify whether the condition is new or tied to existing funding. NFIB heightened the coercion inquiry, making it a frequent bar-exam feature.
Necessary and Proper arguments arise when Congress appears to stretch beyond direct commerce or taxing power. Always articulate the relationship between the means chosen and the enumerated end.
Preemption analysis requires careful separation of express, field, and conflict preemption. Exam graders reward precise terminology.
This chapter addressed the sources and limits of federal legislative authority, from the Commerce Clause to the Spending and Necessary and Proper powers. Commerce doctrine distinguishes channels, instrumentalities, and substantial-effects regulation, with newer limitations applying mainly to noneconomic activity. Necessary and Proper analysis evaluates whether legislation is a reasonable means to a constitutional end, bounded by structural principles. Congress may use financial incentives under the Spending Clause but may not coerce states or commandeer their officials. Preemption principles determine how federal law supersedes state regulation. Together, these doctrines define the architecture of federal power.
Executive power sits at the constitutional intersection of structure, function, and political accountability. Article II grants the President authority to execute federal law, command the armed forces, conduct foreign relations, and participate in the appointments and removal processes. At the same time, the Constitution diffuses power among the branches to prevent concentration and abuse. This chapter examines the primary tools of executive authority, the limits imposed by judicial doctrine, and the structural questions that dominate separation-of-powers jurisprudence. The chapter also surveys modern disputes about delegation, independent agencies, executive privilege, and the balance of war powers.
The President possesses the executive power vested by Article II, including authority to oversee federal law execution, supervise officers, negotiate treaties (subject to Senate consent), and act as Commander in Chief. Presidential power rises or falls depending on the degree of congressional authorization—a framework famously articulated in Youngstown Sheet & Tube Co. v. Sawyer. The President may appoint principal officers with Senate confirmation and may remove executive officers unless Congress has validly limited removal for quasi-legislative or quasi-judicial positions.
Congress shares power over war, foreign commerce, funding, and the creation of executive offices. The judiciary ensures that neither branch exceeds constitutional limits. Although Congress may delegate authority to executive agencies, it must provide an intelligible principle to guide administrative action. Executive privilege protects confidentiality of certain executive communications but yields to demonstrated judicial need in criminal processes.
The Youngstown tripartite framework organizes almost all executive-power disputes:
Category One: The President acts with express or implied congressional authorization. Executive power is at its maximum.
Category Two: The President acts where Congress is silent. Power is uncertain and depends on historical practice and functional considerations.
Category Three: The President acts contrary to congressional will. Executive authority is at its minimum and requires exclusive constitutional power.
This framework dominates separation-of-powers analysis, particularly in foreign affairs, domestic emergencies, and administrative control.
Article II requires Senate confirmation for principal officers. Congress may vest appointment of inferior officers in the President, courts, or department heads. Distinguishing principal from inferior officers depends on the degree of supervision, scope of duties, tenure, and policymaking authority. Employees who lack statutory authority are not “officers” under Article II.
Presidential removal power is generally presumed unless Congress creates for-cause protection for officers performing independent or adjudicatory functions. Classic cases—Humphrey’s Executor and Morrison v. Olson—permit some limits on removal. Modern decisions, including Seila Law v. CFPB and Collins v. Yellen, restrict independent-agency structures when they involve single-director agencies insulated from removal.
Congress may delegate broad authority if it provides an intelligible principle guiding executive action. Although modern cases almost never invalidate delegations, recent concurring opinions suggest renewed scrutiny of overly broad grants. The “major questions doctrine” operates as a functional limit, requiring clear congressional authorization for agency decisions of vast political or economic significance.
Executive privilege protects confidentiality of presidential communications, particularly those involving military, diplomatic, or national security matters. The privilege is qualified, not absolute. Courts may require disclosure upon a sufficient demonstration of need, especially in criminal proceedings, as illustrated by United States v. Nixon.
The President, as Commander in Chief, directs military operations. Congress declares war, funds the military, and regulates armed forces. Constitutional practice demonstrates overlapping, interdependent authority. Courts rarely resolve war-powers disputes because of political-question concerns, institutional deference, and remedial inertia.
The President enjoys substantial independent authority in foreign relations, including recognition of foreign governments, negotiating agreements, and conducting diplomacy. Congressional participation remains necessary for trade regulation, treaties, and funding. Foreign-affairs jurisprudence combines constitutional text, historical practice, and structural considerations.
Courts disagree on the extent to which Congress may limit removal for independent agencies. A majority view restricts single-director insulated agencies, reasoning that concentration of unilateral authority contradicts Article II’s structure. A minority emphasizes congressional authority to structure the administrative state.
Federal courts increasingly differ on when a question qualifies as “major.” Some require demonstrable economic impact, others stress political salience. A minority rejects the doctrine as inconsistent with long-standing delegation principles.
Circuit courts vary in willingness to adjudicate war-powers challenges. Some dismiss suits under political-question principles; others analyze whether plaintiffs have standing to seek declaratory relief against unauthorized military actions.
Separation of powers fosters accountability: Congress legislates, the executive enforces, and courts interpret. Removal limits promote expertise and insulation from politics, but too much insulation undermines democratic control. Executive privilege enables candid advice, while excessive secrecy threatens transparency. Delegation allows modern governance, but overly broad delegations risk concentrating policymaking in unelected administrators. Foreign-affairs authority requires swift action but must avoid unchecked presidential discretion.
• Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952) — Limited presidential authority absent congressional authorization; created tripartite framework.
• Myers v. United States (U.S. 1926) — Recognized broad presidential removal authority over executive officers.
• Humphrey’s Executor v. United States (U.S. 1935) — Upheld limits on removal for independent agency commissioners.
• Morrison v. Olson (U.S. 1988) — Allowed for-cause removal protections for independent counsel; emphasized functional analysis.
• Seila Law v. CFPB (U.S. 2020) — Restricted single-director independent agencies insulated from removal.
• United States v. Nixon (U.S. 1974) — Recognized executive privilege but required production of evidence in criminal proceedings.
• Curtiss-Wright Export Corp. (U.S. 1936) — Emphasized presidential primacy in foreign affairs.
• Zivotofsky v. Kerry (U.S. 2015) — Recognized exclusive presidential recognition power.
Apply the Youngstown framework immediately when analyzing any executive action. Identify congressional authorization or prohibition. Category One generally supports broad presidential power. Category Three requires exclusive executive authority backed by clear constitutional text.
Appointments-Clause problems often turn on categorizing officers. If an individual has significant statutory authority, treat them as an “officer,” not an employee. Distinguish principal from inferior officers with functional markers: hierarchy, supervision, duties, and independence.
For removal issues, check whether the office is single-director or multimember, and whether Congress provided for-cause protection. Recent jurisprudence disfavors single-director insulated agencies.
Delegation questions require identifying an intelligible principle. The major-questions doctrine often appears in modern exams; identify whether the agency action has vast economic or political significance.
When foreign affairs or war powers arise, frame the dispute with Youngstown. Courts often defer, but strong congressional prohibition moves the case toward Category Three.
This chapter examined executive power within the separation-of-powers framework. The Youngstown structure anchors analyses of presidential authority, distinguishing actions supported by Congress, occurring in congressional silence, or undertaken against congressional will. The Appointments Clause and removal doctrine determine how officers are installed and supervised, while the delegation doctrine and major-questions framework limit executive policymaking. Executive privilege remains qualified, not absolute, and war-powers disputes continue to blend text, practice, and judicial restraint. The resulting architecture balances flexibility for modern governance with safeguards against concentrated authority.
Federalism shapes the constitutional relationship between the national government and the states. The Constitution grants enumerated powers to Congress while preserving a broad residuum of authority to the states. This chapter explores the architecture of dual sovereignty: the Tenth Amendment, the anti-commandeering doctrine, the Supremacy Clause, preemption, state immunity, and the dormant commerce principle. Modern federalism cases reveal a balance between national uniformity and state autonomy, with courts continually mediating that tension.
The federal government possesses only the powers granted by the Constitution, while states retain general police powers unless preempted by federal law. The Tenth Amendment reinforces this structure by preventing Congress from commandeering state legislatures or executives. Under the Supremacy Clause, valid federal law overrides conflicting state law. Preemption may be express, field-based, or conflict-driven. States enjoy sovereign immunity from suits unless they consent, Congress abrogates immunity through a valid exercise of Fourteenth Amendment power, or the Ex parte Young exception applies to prospective injunctions against state officials.
The Dormant Commerce Clause restricts states from discriminating against or unduly burdening interstate commerce. Discriminatory laws receive near-automatic invalidation unless the state demonstrates that no reasonable nondiscriminatory alternative exists. Neutral laws that incidentally burden commerce are evaluated under a balancing test. States may favor their own citizens in government-market participation (the “market participant” exception).
Although the Tenth Amendment does not independently limit federal action authorized by enumerated powers, it prohibits Congress from compelling states to legislate or administer federal programs. States retain plenary authority over health, safety, welfare, and morals unless federal law preempts state action within a valid federal power.
Congress may regulate individuals directly, but it may not require states to enact laws, implement federal policy, or take ownership of federal programs.
Key components:
• Congress may not compel state legislatures to adopt federal regulatory schemes.
• Congress may not direct state executive officials to enforce federal law.
• Congress may offer incentives or attach conditions to federal funds (subject to Spending Clause limits).
• Congress may preempt conflicting state laws through valid federal legislation.
The doctrine applies regardless of federal efficiency or regulatory purpose.
States stand immune from suits for damages in federal court unless:
• a state waives immunity;
• Congress abrogates immunity using Fourteenth Amendment Section 5 power; or
• the Ex parte Young exception applies, allowing suits against state officials for prospective relief.
Congress cannot abrogate immunity under Article I powers. It must rely on Section 5 enforcement authority, which requires congruence and proportionality between the injury identified and the remedy imposed.
Supremacy ensures that federal law prevails over conflicting state law. Preemption analysis involves:
Express preemption: Congress clearly states its intention to displace state law.
Field preemption: Federal regulation occupies an entire area, leaving no room for states.
Conflict preemption: Impossibility of compliance or state law interfering with federal objectives.
Courts favor narrow interpretation of preemption in areas traditionally subject to state regulation, such as health and safety.
The Dormant Commerce Clause forbids state regulations that discriminate against interstate commerce or unduly burden it.
Two tracks:
Discriminatory laws: Almost per se invalid. States must show no less discriminatory alternative.
Neutral laws with burdens: Evaluated under Pike balancing—burden must not be clearly excessive in relation to benefits.
Exceptions include the market-participant doctrine and state subsidies directed at in-state interests.
Distinct from the Fourteenth Amendment, Article IV prohibits states from discriminating against nonresidents in fundamental economic activities such as earning a livelihood. A state must show substantial justification and lack of reasonable alternatives to defend discriminatory treatment.
Courts differ on the threshold where conditional federal spending becomes coercive. A majority treats coercion as rare, requiring extreme fiscal pressure. A minority reads NFIB more expansively, treating punitive conditions as suspect.
Some circuits interpret the dormant commerce framework broadly, aggressively policing economic protectionism. Others adopt a more deferential approach, particularly when state environmental or public-health rationales are strong.
Courts vary in applying the congruence-and-proportionality standard. Some permit broader Section 5 enforcement where discrimination is well documented; others require strict evidentiary support before upholding abrogation.
Obstacle preemption reveals deep disagreement. One view accepts broad displacement when federal purpose is clear. Another warns that expansive obstacle preemption risks undermining state autonomy, urging cautious application.
Federalism balances national uniformity with experimentation. The national government gains efficiency and consistency; states offer local tailoring and policy diversity. The dormant commerce principle prevents economic Balkanization. Sovereign immunity preserves state dignity while Section 5 ensures that state discrimination remains subject to federal oversight. Commandeering rules preserve political accountability: federal officials cannot hide behind state administrators when federal policy proves unpopular.
• McCulloch v. Maryland (U.S. 1819) — Although primarily a Necessary and Proper case, it anchors federal supremacy over state interference with valid federal operations.
• New York v. United States (U.S. 1992) — Struck down federal attempts to compel states to enact waste-management legislation; articulated modern anti-commandeering doctrine.
• Printz v. United States (U.S. 1997) — Invalidated federal commands requiring state officers to conduct background checks for federal gun-control purposes; reinforced structural prohibition on commandeering state executives.
• Murphy v. NCAA (U.S. 2018) — Clarified that commandeering includes prohibiting states from repealing their own laws; Congress may regulate private actors directly but cannot control state legislative decisions.
• Alden v. Maine (U.S. 1999) — Extended state sovereign immunity to suits in state courts under federal law; emphasized state dignity as a constitutional principle.
• Seminole Tribe v. Florida (U.S. 1996) — Held that Congress cannot abrogate state immunity using Article I powers; only Section 5 of the Fourteenth Amendment permits abrogation.
• Fitzpatrick v. Bitzer (U.S. 1976) — Recognized Section 5 authority to abrogate state immunity when enforcing substantive Fourteenth Amendment protections.
• Pike v. Bruce Church, Inc. (U.S. 1970) — Established balancing framework for neutral state regulations incidentally burdening commerce.
• Granholm v. Heald (U.S. 2005) — Invalidated discriminatory state wine-shipping laws under the Dormant Commerce Clause; reaffirmed the nearly per se rule against discrimination.
• United Haulers Ass’n v. Oneida-Herkimer (U.S. 2007) — Identified a distinction for neutral laws benefiting state-owned facilities, applying balancing rather than strict discrimination review.
• Hughes v. Alexandria Scrap Corp. (U.S. 1976) — Clarified that the market-participant exception allows states to favor their own citizens when the state acts as a market actor, not a regulator.
• Supreme Court of N.H. v. Piper (U.S. 1985) — Applied Article IV Privileges and Immunities to invalidate a state bar residency requirement; emphasized economic non-discrimination.
Federalism questions require anchoring your analysis in the appropriate constitutional source. Begin by identifying whether the issue involves commandeering, preemption, sovereign immunity, or dormant commerce analysis. These categories look similar on the surface but operate with distinct doctrinal tests.
For commandeering, ask whether Congress is regulating private individuals (permissible) or directing state legislatures or executives (impermissible). Offering money with strings attached is not commandeering unless the condition crosses into coercion. NFIB provides modern guidance: the threat to pull existing major funding is the signal of coercive pressure.
In sovereign-immunity questions, always separate Article I powers from Section 5 authority. Section 5 abrogation must satisfy congruence and proportionality. Be explicit about the Ex parte Young pathway for prospective relief; failing to mention it can cost exam points.
For dormant commerce problems, the first analytic move is identifying whether the state regulation discriminates. If yes, the near-automatic invalidation rule applies. If no, proceed to Pike balancing, weighing the burden on interstate commerce against state interests. Don’t forget the market-participant exception, which examiners love to deploy as a twist.
Preemption requires careful statutory reading. Quote—or paraphrase—the relevant federal provision when assessing express preemption. When applying obstacle preemption, courts often ask whether state law frustrates federal purpose, but be sensitive to modern judicial caution in expanding obstacle analysis.
This chapter examined the constitutional structure of federalism, emphasizing the dual sovereignty shared by the national government and the states. The Tenth Amendment and anti-commandeering doctrine prevent Congress from directing state legislative or executive processes, while the Supremacy Clause allows valid federal law to override conflicting state regulation. Sovereign immunity protects states unless waived, abrogated under valid Fourteenth Amendment authority, or circumvented through Ex parte Young. Preemption doctrine distinguishes express, field, and conflict displacement of state law. The Dormant Commerce Clause prohibits states from discriminating against or unduly burdening interstate commerce, subject to narrow exceptions. These bedrock principles mediate the balance between national uniformity and state autonomy and guide courts in allocating authority within the federal system.
Due process lies at the heart of constitutional rights litigation, functioning both as a guarantee of fair governmental procedure and as a substantive constraint on governmental interference with fundamental liberties. Although modern doctrine distinguishes between procedural due process and substantive due process, the concepts share a textual home in the Fifth and Fourteenth Amendments. Procedural due process ensures that individuals receive adequate procedural safeguards when the government deprives them of life, liberty, or property. Substantive due process addresses the kinds of liberties government may not restrict without compelling justification. This chapter provides a comprehensive treatment of incorporation, fundamental rights, the development of modern substantive due process, and the procedural framework governing adjudicative fairness.
The Due Process Clauses of the Fifth and Fourteenth Amendments prohibit the federal and state governments from depriving any person of life, liberty, or property without due process of law. Procedural due process requires identifying a protected interest and determining the procedures necessary for a fair deprivation. Substantive due process protects certain fundamental rights against government interference unless the government satisfies strict scrutiny. Nonfundamental rights receive rational-basis review.
The Fourteenth Amendment incorporates most provisions of the Bill of Rights against the states using a selective incorporation standard. Fundamental rights recognized under substantive due process include marriage, procreation, custody of children, bodily integrity, and certain intimate decisions. Economic rights, by contrast, typically receive rational-basis review.
Procedural due process applies only when there is a deprivation of life, liberty, or property. Identification of an interest requires examining state or federal law to determine whether an entitlement exists.
• Liberty interests include freedom from physical restraint, commitment, parole revocation, certain forms of government stigmatization, and parental rights.
• Property interests arise from legitimate claims of entitlement such as public employment with tenure protections, welfare benefits, or licenses where state law limits discretion.
A deprivation occurs when the government meaningfully interferes with an established interest. Random unauthorized acts may be addressed through adequate post-deprivation remedies.
Once an interest is established, courts determine the procedures required using the Mathews v. Eldridge balancing test. The test considers:
• the private interest affected;
• the risk of erroneous deprivation through existing procedures and the value of additional safeguards;
• the government’s interest, including costs and administrative burdens.
This flexible test applies across contexts—from academic suspensions to welfare terminations to incarceration classifications.
Fundamental rights are those “deeply rooted in the nation’s history and tradition” or implicit in the concept of ordered liberty. Courts take a careful, historically anchored approach to defining rights, especially when the claimed liberty is not expressly protected by the text.
Recognized fundamental rights include:
• marriage;
• procreation;
• contraception;
• bodily integrity;
• family relations;
• child-rearing and custody;
• intimate association;
• refusal of unwanted medical treatment.
Rights not considered fundamental include economic liberties, education, and some emerging social issues lacking historical grounding.
When a fundamental right is burdened, courts apply strict scrutiny: the government must show a compelling interest pursued through narrowly tailored means. When the right is not fundamental, courts apply rational-basis review, and the law need only be rationally related to a legitimate governmental interest.
Modern substantive due process includes context-specific rights such as same-sex marriage and certain bodily-autonomy interests. The Court’s approach emphasizes history, tradition, and careful description of rights. Although the landscape shifts over time, the framework remains consistent: historical grounding, scrutiny level, and governmental justification.
The Bill of Rights applies to the federal government directly and to states through incorporation via the Fourteenth Amendment. Incorporation is selective, not total, and depends on whether a right is fundamental to the American scheme of justice. Most rights have been incorporated, including free speech, free exercise, search and seizure protections, and criminal-procedure guarantees. Exceptions include the grand-jury requirement and civil-jury requirement, which remain unincorporated.
Regulation of economic activity receives rational-basis review. The Lochner era once recognized economic liberty as fundamental, but that period has been repudiated. Courts now defer to legislative judgments concerning economic policy, health regulation, and social welfare unless classification suffers from irrationality or improper animus.
Due process applies only to governmental actions. Private conduct generally falls outside constitutional scrutiny unless it is substantially connected to or encouraged by the government, or when private actors perform exclusive public functions.
Courts diverge in recognizing liberty interests created by state regulations. Some accept that mandatory regulatory language creates protected interests; others insist on clearer entitlements. Prisoner-rights cases reveal a significant split over when administrative classification constitutes a liberty deprivation triggering due process.
Substantive due process remains the most contested constitutional area. Some courts interpret historical tradition broadly, identifying underlying values rather than narrow practices. Others prefer precise historical analogues. This divergence affects emerging rights involving family structure, gender identity, and reproductive autonomy.
Even when courts label a right as fundamental, they differ on how exacting strict scrutiny should be. Some treat the test as nearly fatal; others uphold regulations if they are tightly tailored to compelling community interests.
Mathews balancing varies by jurisdiction. Some courts give heavy weight to governmental efficiency; others prioritize the risk of wrongful deprivation. This split particularly affects benefits termination, prison classification, and public-school discipline.
Procedural due process prevents arbitrary or unfair government action, ensuring dignitary interests and accuracy. Substantive due process preserves personal autonomy, protecting essential liberties from majoritarian encroachment. Critics caution that substantive due process gives judges excessive discretion. Supporters argue that the Constitution’s general guarantees require courts to defend deeply rooted liberties. The incorporation doctrine promotes uniformity across states while preserving federalism through selective, not total, application of rights.
• Palko v. Connecticut (U.S. 1937) — Early articulation of selective incorporation; incorporated only rights viewed as fundamental to ordered liberty.
• Duncan v. Louisiana (U.S. 1968) — Modern incorporation standard; incorporated jury-trial right as fundamental.
• Goldberg v. Kelly (U.S. 1970) — Required pre-termination hearing for welfare benefits; emphasized risk of erroneous deprivation.
• Mathews v. Eldridge (U.S. 1976) — Established balancing test for procedural safeguards.
• Board of Regents v. Roth (U.S. 1972) — Defined property interests through existing law; denied entitlement where no tenure protection existed.
• Washington v. Glucksberg (U.S. 1997) — Reaffirmed history-and-tradition approach; rejected physician-assisted suicide as unprotected.
• Obergefell v. Hodges (U.S. 2015) — Recognized same-sex marriage as fundamental; blended dignity, autonomy, and historical reasoning.
• Loving v. Virginia (U.S. 1967) — Identified marriage as a fundamental right; applied strict scrutiny to racial classifications.
• Troxel v. Granville (U.S. 2000) — Recognized parental control over child-rearing as a fundamental liberty.
• Cruzan v. Director, Mo. Dep’t of Health (U.S. 1990) — Accepted competent persons’ right to refuse unwanted medical treatment.
In procedural due process problems, always begin with the threshold question: Is there a protected interest? Identify whether state law creates a liberty or property entitlement. Once you find an interest, apply the Mathews test explicitly. Examiners expect identification of each factor and tailored discussion of risk, accuracy, and administrative burden.
For substantive due process, describe the right narrowly unless precedent clearly supports a broader framing. Historical grounding is essential. If the right is fundamental, articulate strict scrutiny; if not, move directly to rational-basis review and examine whether the state could have had any legitimate interest.
Be careful in incorporation problems to specify whether the right has been incorporated. If not, articulate why selective incorporation still controls.
Remember state-action doctrine: rights do not apply to private actors unless government involvement is significant.
This chapter addressed both procedural and substantive due process under the Fifth and Fourteenth Amendments. Procedural due process requires identifying a protected life, liberty, or property interest and applying the Mathews balancing test to determine necessary safeguards. Substantive due process protects certain fundamental liberties, identified through history and tradition, and subjects restrictions to strict scrutiny. Nonfundamental rights receive rational-basis review. Selective incorporation applies most provisions of the Bill of Rights to the states. Economic regulation generally survives under rational-basis review, while fundamental rights—including marriage, procreation, and parental control—receive heightened protection. These doctrines define the constitutional limits on governmental authority over personal autonomy and procedural fairness.
Equal Protection doctrine mediates how government classifications affect individuals and groups. Although textually located in the Fourteenth Amendment, modern equal-protection principles apply to the federal government through the Fifth Amendment’s Due Process Clause. The doctrine organizes review around tiers of scrutiny—strict, intermediate, and rational basis—depending on the classification at issue. Racial and national-origin classifications trigger strict scrutiny. Gender and legitimacy classifications receive intermediate scrutiny. Economic classifications and most social-policy differentiations receive rational-basis review. Doctrinal complexity arises in identifying discriminatory intent, evaluating facially neutral laws with disparate impact, and determining when animus renders legislation constitutionally defective.
The Equal Protection Clause prohibits states from denying any person equal protection of the laws, and the federal government is bound by parallel principles. Heightened scrutiny applies when a classification targets a suspect or quasi-suspect class or burdens a fundamental right. Strict scrutiny requires a compelling governmental interest and narrow tailoring. Intermediate scrutiny requires an important governmental interest and substantial relation. Rational-basis review requires only a legitimate governmental interest and rational relation.
Facially discriminatory laws automatically receive heightened scrutiny. Facially neutral laws require proof of discriminatory intent, not merely disparate impact, to trigger heightened review. Laws grounded in animus may fail even rational-basis scrutiny.
Suspect classes include race, national origin, and (in certain contexts) alienage. These classifications receive strict scrutiny.
Quasi-suspect classes include gender and legitimacy. These receive intermediate scrutiny.
Alienage receives strict scrutiny when states discriminate against lawful residents in economic or professional contexts, but the federal government’s alienage classifications receive rational-basis review because of plenary power over immigration.
Strict scrutiny is applied to racial classifications, national-origin distinctions, and laws burdening fundamental rights. Under strict scrutiny:
• the governmental interest must be compelling;
• the means must be narrowly tailored;
• no less restrictive alternative may exist.
Remedies for past discrimination must be supported by specific findings. Generalized assertions of historical discrimination are insufficient unless the government demonstrates present, identifiable discriminatory effects.
Intermediate scrutiny requires:
• an important governmental interest;
• means substantially related to that interest.
Gender discrimination must be supported by an “exceedingly persuasive justification.” Legitimacy classifications receive a slightly less demanding form of intermediate scrutiny, examining whether the law avoids penalizing children for the conduct of their parents.
Rational-basis review requires only a conceivable legitimate governmental interest. Courts typically uphold laws if any rational explanation exists, even hypothetical. However, laws that target politically unpopular groups, rest on bare animus, or exhibit extreme arbitrariness may fail rational basis with “bite.”
Facially neutral laws challenged on equal-protection grounds require proof of discriminatory intent. Disparate impact alone is insufficient. Evidence of intent may include historical background, departures from normal procedures, legislative history, or statistical patterns so stark that they permit inference of intent.
Some rights—marriage, voting, interstate travel, access to courts—receive special protection under equal-protection principles. Restrictions on these rights trigger strict scrutiny.
Affirmative-action programs based on racial classifications also receive strict scrutiny. Justifications include remedying specific instances of past governmental discrimination or achieving diversity in higher education. Race-neutral alternatives must be inadequate before race may be considered.
Courts disagree on when animus invalidates legislation. Some apply a robust “rational basis with bite,” striking laws where legislative purposes reveal hostility toward a group. Others apply a more deferential approach, accepting broader justifications even when hostility appears intertwined.
Courts differ on how demanding intermediate scrutiny is. Some treat it nearer to strict scrutiny, requiring precise alignment between means and ends. Others accept more flexibility, especially where biological differences are relevant.
There is disagreement about the continuing viability of certain diversity rationales in higher education, particularly following shifts in Supreme Court doctrine. Some courts read recent decisions narrowly, preserving limited use of race-conscious admissions. Others interpret them broadly, significantly constraining affirmative-action programs.
Circuits differ on how easily plaintiffs may establish discriminatory intent. Some view historical and statistical evidence as sufficient; others require stronger proof, particularly in criminal-justice and housing-policy challenges.
Equal Protection promotes individual dignity and prevents governmental favoritism. Strict scrutiny protects groups historically subject to prejudice. Intermediate scrutiny balances biological or historical differences with the need to avoid harmful stereotypes. Rational-basis review respects legislative authority while allowing courts to check laws grounded in animus. The discriminatory-intent requirement preserves democratic flexibility, but critics argue it limits remedying systemic inequities by focusing too narrowly on intent rather than effect.
• Plessy v. Ferguson (U.S. 1896) — Upheld state-mandated segregation; later repudiated by Brown.
• Brown v. Board of Education (U.S. 1954) — Struck down racial segregation; emphasized education’s central role and the harms of enforced separation.
• Loving v. Virginia (U.S. 1967) — Invalidated interracial-marriage bans under strict scrutiny; marriage recognized as a fundamental right.
• Washington v. Davis (U.S. 1976) — Held that disparate impact does not suffice to prove racial discrimination without intent.
• Village of Arlington Heights v. Metro Housing Corp. (U.S. 1977) — Articulated factors for identifying discriminatory intent in facially neutral laws.
• Craig v. Boren (U.S. 1976) — Established intermediate scrutiny for gender classifications.
• United States v. Virginia (U.S. 1996) — Required “exceedingly persuasive justification” for gender-based distinctions; struck male-only admission at a military institute.
• Romer v. Evans (U.S. 1996) — Invalidated a law motivated by animus under rational-basis review with bite.
• Windsor v. United States (U.S. 2013) — Applied animus-sensitive review to strike federal marriage definition limiting benefits to opposite-sex couples.
• Reed v. Reed (U.S. 1971) — Early gender-discrimination case recognizing arbitrary classifications as invalid even under rational basis.
• Bush v. Gore (U.S. 2000) — Applied equal-protection principles to electoral-recount procedures; emphasized uniformity in vote weighting.
Equal-protection questions reward structured thinking. Start by identifying the classification: race, gender, alienage, legitimacy, or neutral policy with disparate impact. If the classification is facially discriminatory, jump immediately to the applicable scrutiny level. If the law is facially neutral, investigate intent using Arlington Heights. Statistical disparities alone rarely suffice.
In strict-scrutiny analysis, focus on tailoring: is the law overinclusive or underinclusive? Examiners expect discussion of less restrictive alternatives. For gender discrimination, articulate the “exceedingly persuasive justification” requirement.
Rational-basis review is deferential, but do not forget the animus principle. If the law appears grounded in hostility toward a group, the burden shifts subtly: courts examine whether the asserted interest is genuine or pretextual.
Affirmative-action problems require careful articulation of permissible goals. Remedying specific past discrimination and certain diversity rationales are recognized justifications but receive tight scrutiny.
This chapter explored equal-protection doctrine, emphasizing how courts classify groups, assign scrutiny levels, and identify discriminatory intent. Strict scrutiny governs racial classifications, national-origin distinctions, and burdens on fundamental rights. Intermediate scrutiny applies to gender and legitimacy classifications, while rational-basis review governs economic and most social classifications. Facial discrimination triggers heightened scrutiny; facially neutral laws require proof of discriminatory intent. Animus-based rational-basis review permits invalidation of laws reflecting hostility toward disfavored groups. Together, these doctrines structure governmental authority to classify individuals and regulate group-based differences under the Constitution.
The First Amendment protects freedom of speech, freedom of the press, the right to assemble, and the rights to free exercise of religion and to be free from governmental establishment of religion. Among constitutional doctrines, First Amendment law is uniquely structured by categorical distinctions, forum analysis, and tiered scrutiny. Speech doctrine differentiates content-based regulations, content-neutral regulations, expressive conduct, commercial speech, compelled speech, and government speech. Religion doctrine evaluates whether government burdens religious exercise or impermissibly endorses, funds, or favors religion. This chapter outlines the frameworks governing both speech and religion, with attention to modern developments and bar-exam salience.
The First Amendment prohibits government from abridging freedom of speech. Content-based regulations receive strict scrutiny; content-neutral time, place, and manner restrictions receive intermediate scrutiny if they are narrowly tailored and leave open ample alternative channels. Expressive conduct may be regulated if the government’s interest is unrelated to expression and the incidental restriction is no greater than essential. The government may not compel speech unless it satisfies strict scrutiny.
Under the Free Exercise Clause, government may not intentionally burden religious practice. Neutral, generally applicable laws typically receive rational-basis review, but laws targeting religion receive strict scrutiny. Under the Establishment Clause, government may not endorse or coerce religious practice. Tests include historical practices, neutrality principles, and coercion analysis.
Content-based regulations regulate speech because of its message. These generally require strict scrutiny, including viewpoint discrimination, which is almost per se invalid. Reed v. Town of Gilbert reaffirmed that laws requiring reading the message to determine applicability are content-based.
Content-neutral regulations govern the time, place, or manner of speech. They receive intermediate scrutiny if they:
• serve a significant governmental interest;
• are narrowly tailored (not necessarily least restrictive);
• leave ample alternative channels open.
Certain categories fall outside full protection:
• Incitement — Requires intent to produce imminent lawless action and likelihood of producing such action (Brandenburg).
• Obscenity — Defined by the Miller test: community standards, patently offensive sexual conduct, and lack of serious value.
• Defamation — Requires falsity and, for public officials or figures, actual malice (Sullivan).
• True threats — Statements meant to communicate a serious expression of intent to harm.
• Fighting words — Narrow category, rarely upheld today.
Commercial speech receives intermediate scrutiny under the Central Hudson test, requiring substantial governmental interests and narrow tailoring.
Conduct qualifies as speech when it intends to convey a message and is likely to be understood as such. Regulations receive O’Brien intermediate scrutiny if unrelated to content and no greater than needed.
Government property is categorized for speech purposes:
• Traditional public forums (streets, parks) — Strict scrutiny for content-based laws; intermediate scrutiny for content-neutral rules.
• Designated public forums — Government intentionally opens property for expressive use. Same scrutiny as traditional forums.
• Limited public forums — Government may impose reasonable, viewpoint-neutral restrictions related to the forum’s purpose.
• Nonpublic forums — Restrictions must be reasonable and viewpoint-neutral.
Government may not compel affirmation of beliefs or force endorsement of ideological messages. Regulations compelling speech meet strict scrutiny. Membership disclosure rules may infringe associational rights unless narrowly tailored.
When government speaks in its own voice, the First Amendment does not restrict its message. The key issue becomes whether the government is endorsing private speech or expressing its own.
Under Employment Division v. Smith, neutral laws of general applicability receive rational-basis review even if they burden religious exercise.
Strict scrutiny applies when:
• the law targets religion;
• the government selectively enforces laws against religious practice;
• individualized governmental assessments enable religious discrimination.
Although the Constitution does not require religious exemptions from neutral laws, legislatures may enact exemptions. The Religious Freedom Restoration Act (RFRA) imposes strict scrutiny on federal laws burdening religion. States may have similar statutes.
Courts historically used the Lemon test, requiring secular purpose, primary effect that neither advances nor inhibits religion, and no excessive entanglement. Although still referenced, modern doctrine often supplants Lemon with:
• Coercion test — Government may not coerce participation in religion.
• Neutrality and equal access — Government programs must treat religious and secular groups equally when distributing benefits.
• Historical practices and understanding — Especially for ceremonial acts and government acknowledgments of religion.
Government funding may reach religious institutions through neutral, indirect programs where aid flows via private choice. Direct funding of religious activities generally violates the Establishment Clause unless limited to secular use with adequate safeguards.
School prayer is generally unconstitutional because of coercion concerns. Legislative prayer may be upheld under historical practice. Religious displays are permissible when contextualized within secular themes or long-standing traditions.
Courts vary on how broadly to apply Reed. Some interpret it strictly, treating many sign ordinances as content-based. Others construe it more narrowly to avoid flooding courts with strict-scrutiny challenges.
Some circuits apply an expansive form of intermediate scrutiny; others approach near-strict scrutiny for restrictions on truthful commercial advertising.
Circuits differ on what constitutes a neutral and generally applicable law. Some adopt broad readings of neutrality; others apply stricter scrutiny when exemptions exist for secular conduct.
The decline of Lemon created doctrinal variability. Some courts rely heavily on history-and-tradition analysis; others use coercion or neutrality frameworks. Litigation concerning school vouchers, graduation prayer, and religious displays remains doctrinally divided.
Speech protections promote democratic governance and guard against censorship. Heightened scrutiny for content-based laws prevents governmental favoritism among ideas. Free Exercise protects religious pluralism. Establishment restraints promote governmental neutrality while preventing coercive or preferential treatment of faiths. The tension between neutrality and accommodation remains a central policy debate.
• Schenck v. United States (U.S. 1919) — Early speech-case progenitor; introduced clear-and-present-danger analysis.
• Brandenburg v. Ohio (U.S. 1969) — Modern incitement test requiring intent, imminence, and likelihood of lawless action.
• Tinker v. Des Moines (U.S. 1969) — Protected student symbolic speech absent substantial disruption.
• Texas v. Johnson (U.S. 1989) — Recognized flag burning as protected expressive conduct.
• O’Brien v. United States (U.S. 1968) — Provided test for regulating expressive conduct.
• Reed v. Town of Gilbert (U.S. 2015) — Held sign ordinance content-based; required strict scrutiny.
• West Virginia v. Barnette (U.S. 1943) — Prohibited compelled flag salute; foundational compelled-speech case.
• Employment Division v. Smith (U.S. 1990) — Neutral, generally applicable laws do not trigger strict scrutiny under Free Exercise.
• Church of Lukumi Babalu Aye v. Hialeah (U.S. 1993) — Applied strict scrutiny to law targeting religious practice.
• Lemon v. Kurtzman (U.S. 1971) — Classic Establishment test, partially supplanted but still referenced.
• Kennedy v. Bremerton School District (U.S. 2022) — Emphasized history-and-tradition approach; moved away from Lemon.
• Everson v. Board of Education (U.S. 1947) — Applied Establishment Clause to states; introduced neutrality principle.
• Zelman v. Simmons-Harris (U.S. 2002) — Upheld school vouchers when aid reached religious schools through private choice.
Always classify speech first: Is the law content-based, content-neutral, or directed at conduct? The answer determines scrutiny level. Examiners reward accurate identification of the forum type: traditional public forums get strict scrutiny for content controls, while nonpublic forums require only reasonableness.
Commercial-speech issues require explicit Central Hudson analysis.
For compelled-speech questions, mention Barnette and articulate why state interest rarely outweighs the burden on individual conscience.
Free Exercise questions require separating Smith analysis from situations involving individualized assessments. When a law has secular exemptions but no religious exemptions, strict scrutiny may apply.
Under the Establishment Clause, choose the right analytical lens: coercion for prayer cases, neutrality for benefits, and historical practice for ceremonial acknowledgments.
This chapter surveyed First Amendment speech and religion doctrine. Speech law hinges on whether restrictions are content-based or content-neutral, with strict or intermediate scrutiny accordingly. Expressive conduct receives O’Brien analysis, and certain categories of speech are unprotected or less protected. Public-forum doctrine structures where and how speech may be regulated. Free Exercise principles distinguish neutral, generally applicable laws from those targeting religion, with strict scrutiny for the latter. Establishment doctrine evaluates governmental neutrality, coercion, and consistency with historical practices. Together, these frameworks regulate the boundaries of expression, belief, and governmental authority in a pluralistic society.
Actual Malice — Standard in defamation requiring knowledge of falsity or reckless disregard for truth when the plaintiff is a public figure or public official.
Animus — Hostility or improper purpose motivating legislation, sometimes rendering a law invalid even under rational-basis review.
Anti-Commandeering — Constitutional rule preventing Congress from forcing states to legislate or administer federal programs.
Balancing Test — Analytical method weighing competing interests, such as in procedural due process (Mathews) or dormant commerce cases (Pike).
Bill of Rights — First ten amendments to the U.S. Constitution, selectively incorporated against the states through the Fourteenth Amendment.
Commerce Clause — Grants Congress authority to regulate interstate commerce and its instrumentalities.
Compelled Speech — Requirement that individuals affirm messages they oppose; generally subject to strict scrutiny.
Content-Based Regulation — Speech regulation targeting messages or ideas; subject to strict scrutiny.
Due Process — Constitutional guarantee prohibiting government from depriving life, liberty, or property without procedural fairness or substantiative justification.
Equal Protection — Prohibition on unjustified discrimination and classification by government actors.
Establishment Clause — Prohibits governmental endorsement of, or coercion toward, religion.
Free Exercise Clause — Protects religious practice from targeted or discriminatory burdens.
Fundamental Right — Liberty interest deeply rooted in history and tradition and essential to ordered liberty.
Incitement — Unprotected speech intended and likely to produce imminent lawless action.
Intermediate Scrutiny — Requires an important governmental interest and substantial relation between the law and the interest.
Jurisdictional Split — Divergent interpretations of constitutional doctrine among federal circuits.
Narrow Tailoring — Requirement that a law uses the least restrictive or closely fitted means to achieve its interest.
Preemption — Supremacy-based doctrine displacing conflicting state laws.
Procedural Due Process — Requirement of adequate procedures before government deprivation of protected interests.
Rational-Basis Review — Deferential standard of review requiring only legitimate purpose and rational relation.
Strict Scrutiny — Highest level of review, requiring compelling interest and narrow tailoring.
Substantive Due Process — Protection of fundamental rights from unjustified government interference.
Viewpoint Discrimination — Favoring or disfavoring particular perspectives; almost always invalid.
(Cases are listed alphabetically for publication clarity.)
Alden v. Maine, 527 U.S. 706 (1999)
Allen v. Wright, 468 U.S. 737 (1984)
Arlington Heights v. Metro Housing Corp., 429 U.S. 252 (1977)
Barnette, West Virginia v., 319 U.S. 624 (1943)
Baker v. Carr, 369 U.S. 186 (1962)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brown v. Board of Education, 347 U.S. 483 (1954)
Central Hudson Gas & Electric Corp. v. PSC, 447 U.S. 557 (1980)
Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)
Clapper v. Amnesty Int’l, 568 U.S. 398 (2013)
Collins v. Yellen, 594 U.S. ___ (2021)
Cooper v. Aaron, 358 U.S. 1 (1958)
Craig v. Boren, 429 U.S. 190 (1976)
Cruzan v. Director, 497 U.S. 261 (1990)
Duncan v. Louisiana, 391 U.S. 145 (1968)
Employment Division v. Smith, 494 U.S. 872 (1990)
Everson v. Board of Education, 330 U.S. 1 (1947)
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)
Gonzales v. Raich, 545 U.S. 1 (2005)
Glucksberg, Washington v., 521 U.S. 702 (1997)
Goldberg v. Kelly, 397 U.S. 254 (1970)
Granholm v. Heald, 544 U.S. 460 (2005)
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Humphrey’s Executor v. U.S., 295 U.S. 602 (1935)
Kennedy v. Bremerton School District, 597 U.S. ___ (2022)
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Lopez, United States v., 514 U.S. 549 (1995)
Loving v. Virginia, 388 U.S. 1 (1967)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Mathews v. Eldridge, 424 U.S. 319 (1976)
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Miller v. California, 413 U.S. 15 (1973)
Morrison v. Olson, 487 U.S. 654 (1988)
Morrison, United States v., 529 U.S. 598 (2000)
Murphy v. NCAA, 584 U.S. ___ (2018)
NFIB v. Sebelius, 567 U.S. 519 (2012)
New York v. United States, 505 U.S. 144 (1992)
Obergefell v. Hodges, 576 U.S. 644 (2015)
O’Brien v. United States, 391 U.S. 367 (1968)
Palko v. Connecticut, 302 U.S. 319 (1937)
Pike v. Bruce Church, 397 U.S. 137 (1970)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Printz v. United States, 521 U.S. 898 (1997)
Rauch, Texas v. Johnson, 491 U.S. 397 (1989)
Reed v. Town of Gilbert, 576 U.S. 155 (2015)
Romer v. Evans, 517 U.S. 620 (1996)
Roth, Board of Regents v., 408 U.S. 564 (1972)
Seila Law v. CFPB, 591 U.S. ___ (2020)
Seminole Tribe v. Florida, 517 U.S. 44 (1996)
Sullivan, New York Times v., 376 U.S. 254 (1964)
Texas v. Johnson, 491 U.S. 397 (1989)
Tinker v. Des Moines, 393 U.S. 503 (1969)
United States v. Nixon, 418 U.S. 683 (1974)
United Haulers Ass’n v. Oneida-Herkimer, 550 U.S. 330 (2007)
Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
Zivotofsky v. Kerry, 576 U.S. 1 (2015)
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