California Bar Examination Constitutional Law Syllabus

Constitutional Law syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Constitutional Law in California Bar Examination, not a summary of it.

1. 1

   Judicial Power and Federalism

   5 topics

   • Justiciability
     • Standing
     • Ripeness and mootness
     • Political question doctrine
   • Federal Judicial and Legislative Powers
     • Commerce Clause
     • Taxing and spending powers
     • Tenth Amendment and anti-commandeering
   • Separation of Powers
     • Executive power and appointments
     • Legislative veto and delegation
   • Supremacy and Preemption
   • Dormant Commerce Clause and Privileges and Immunities
2. 2

   State Action and Due Process

   5 topics

   • State Action Doctrine
   • Procedural Due Process
   • Substantive Due Process
     • Fundamental rights and levels of scrutiny
     • Privacy, marriage, and family rights
   • Takings Clause
   • Contracts Clause and Ex Post Facto
3. 3

   Equal Protection

   5 topics

   • Levels of Scrutiny Framework
   • Suspect Classifications
     • Race and national origin
     • Alienage
   • Quasi-Suspect Classifications (Gender and Legitimacy)
   • Rational Basis Classifications
   • Fundamental Rights and Equal Protection
4. 4

   First Amendment

   5 topics

   • Freedom of Speech
     • Content-based versus content-neutral regulation
     • Unprotected and low-value speech
     • Time, place, and manner and public forums
     • Prior restraints, vagueness, and overbreadth
   • Freedom of Association
   • Establishment Clause
   • Free Exercise Clause
   • Freedom of the Press

Constitutional Law flashcards for California Bar Examination

24 of 71 cards from the Constitutional Law deck — real questions with worked answers.

1. What are the four requirements for a federal court to hear a case under justiciability doctrine?

   (1) No advisory opinions (must be an actual case/controversy with adverse parties); (2) Standing; (3) Ripeness; (4) Not moot. Cases must also not present a political question.

2. What three elements must a plaintiff prove to establish standing in federal court?

   (1) Injury in fact (concrete and particularized, actual or imminent); (2) Causation (injury traceable to defendant's conduct); (3) Redressability (a favorable decision will likely remedy the injury).

3. When does a plaintiff have standing to assert the constitutional rights of third parties?

   When (1) the plaintiff suffers her own injury, AND (2) there is a close relationship with the third party OR the third party is unlikely to be able to assert his own rights (e.g., doctor for patients, seller for buyers).

4. When does an organization have standing to sue on behalf of its members?

   When (1) its members would have standing to sue individually; (2) the interests are germane to the organization's purpose; and (3) neither the claim nor relief requires participation of individual members.

5. What is the ripeness doctrine, and what factors determine ripeness?

   Ripeness bars review of premature claims before a real threat of harm. Courts weigh (1) the fitness of the issues for judicial decision (hardship of not deciding) and (2) the hardship to the parties of withholding review.

6. What is the mootness doctrine, and what are its key exceptions?

   A live controversy must exist at all stages. Exceptions: (1) capable of repetition yet evading review; (2) voluntary cessation by defendant (could resume); (3) class actions where the named plaintiff's claim is moot but other members' claims live.

7. What characteristics make an issue a nonjusticiable political question?

   A textually demonstrable constitutional commitment to another branch, or a lack of judicially manageable standards. Examples: republican form of government guarantee, impeachment procedures, foreign policy, partisan gerrymandering.

8. What are the requirements and effect of the Eleventh Amendment / sovereign immunity in federal court?

   It bars suits against a state in federal court by private parties for money damages. Exceptions: (1) state consent/waiver; (2) Congress acting under §5 of the 14th Amendment; (3) suits against state officers for injunctions or for damages from their own pockets (Ex parte Young).

9. What is the scope of the U.S. Supreme Court's appellate jurisdiction, and what is the final judgment rule?

   The Supreme Court reviews state court decisions by certiorari, but only if the judgment rests on adequate and independent state grounds will it decline review. Generally it hears only final judgments of the highest state court available.

10. What is the 'adequate and independent state grounds' doctrine?

    The Supreme Court will not review a state court judgment if it rests on a state law ground that is both adequate (fully resolves the matter) and independent (not based on federal law), because any opinion would be advisory.

11. What is the source and breadth of Congress's commerce power?

    The Commerce Clause lets Congress regulate (1) the channels of interstate commerce; (2) the instrumentalities, persons, and things in interstate commerce; and (3) activities that have a substantial economic effect on interstate commerce (aggregated for economic activity).

12. Can Congress regulate purely intrastate noneconomic activity under the Commerce Clause?

    Generally no. For noneconomic intrastate activity, Congress cannot rely on aggregation (Lopez, Morrison). It may regulate intrastate economic activity if, in the aggregate, it substantially affects interstate commerce (Wickard, Raich).

13. What is the scope of Congress's taxing and spending power, and the limits on conditional spending?

    Congress may tax and spend for the general welfare. Spending conditions must be (1) clearly stated; (2) related to the federal program's purpose; (3) not unduly coercive; and (4) not otherwise unconstitutional.

14. What does the Tenth Amendment / anti-commandeering doctrine prohibit?

    Congress may not compel states to enact or enforce a federal regulatory program, nor commandeer state legislatures or executive officials (Printz, NY v. United States, Murphy). It may, however, induce compliance through spending conditions or preemption.

15. What is the scope of Congress's power under Section 5 of the Fourteenth Amendment?

    Congress may enact laws to enforce 14th Amendment rights but may not create new rights or expand existing ones. Remedial legislation must show congruence and proportionality between the injury and the means (City of Boerne v. Flores).

16. What are the scope and limits of the President's power to issue executive orders and act domestically (Youngstown framework)?

    Justice Jackson's tripartite framework: (1) acting with Congress's authorization = maximum power; (2) acting in Congress's silence = twilight zone, depends on context; (3) acting against Congress's will = lowest ebb, power at its minimum.

17. Distinguish the President's pardon power, veto power, and appointment power.

    Pardon: federal crimes only, not impeachment or civil/state matters. Veto: may reject legislation (overridden by 2/3 of each house); no line-item veto. Appointment: appoints principal officers with Senate consent; Congress may vest appointment of inferior officers elsewhere.

18. What is executive privilege, and how strong is it?

    A qualified privilege protecting confidential presidential communications. It yields to a demonstrated, specific need for evidence in a criminal trial (United States v. Nixon). National security/military/diplomatic secrets get greater protection.

19. What is the difference between impeachment and removal, and who handles each?

    The House impeaches (brings charges) by majority vote for treason, bribery, or high crimes and misdemeanors. The Senate tries and removes by a 2/3 vote. Removal bars holding future office; criminal prosecution remains separate.

20. What is the nondelegation doctrine, and what limits Congress's delegation of legislative power?

    Congress may delegate rulemaking authority to agencies if it provides an 'intelligible principle' to guide the exercise of discretion. The doctrine is rarely used to strike delegations. The legislative veto (one-house override) is unconstitutional (Chadha).

21. What does the Supremacy Clause establish?

    The Constitution, federal laws, and treaties made under U.S. authority are the supreme law of the land; valid federal law preempts conflicting state law, and states cannot tax or regulate the federal government's activities.

22. Distinguish express, conflict, and field preemption.

    Express: federal statute explicitly states it preempts state law. Conflict: compliance with both is impossible, OR state law obstructs federal objectives. Field: federal regulation is so pervasive (or the field so dominantly federal) that intent to occupy the field is inferred.

23. What is the presumption regarding preemption in fields traditionally regulated by states?

    There is a presumption against preemption in areas of traditional state police power (e.g., health, safety, family law); courts require clear evidence of congressional intent to displace state law.

24. What is the Dormant Commerce Clause, and what is the general test for state laws affecting interstate commerce?

    Even without congressional action, states may not unduly burden interstate commerce. If a law discriminates against out-of-state commerce, it is nearly per se invalid; if nondiscriminatory, it is upheld unless the burden on commerce is clearly excessive relative to local benefits (Pike balancing).

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