Juris Doctor (JD) 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 Juris Doctor (JD), not a summary of it.

1. 1

   Judicial Power and Federal Authority

   4 topics

   • Judicial Review and Justiciability
     • Marbury v. Madison and the power of judicial review
     • Standing: injury, causation, redressability
     • Ripeness, mootness, and the political question doctrine
   • Congressional Powers
     • The Commerce Clause (Lopez, Morrison, Raich)
     • Taxing and spending powers
     • Necessary and Proper Clause
   • Federalism and State Power
     • The Supremacy Clause and preemption
     • The dormant Commerce Clause
     • Tenth Amendment and anti-commandeering
   • Separation of Powers
     • Executive power and Youngstown framework
     • Appointment, removal, and the administrative state
     • Legislative veto and nondelegation
2. 2

   Due Process and Equal Protection

   4 topics

   • Procedural Due Process
     • Protected life, liberty, and property interests
     • The Mathews v. Eldridge balancing test
   • Substantive Due Process
     • Economic substantive due process and the Lochner era
     • Fundamental rights: privacy, marriage, family
     • Incorporation of the Bill of Rights
   • Equal Protection
     • Rational basis review
     • Intermediate scrutiny and gender classifications
     • Strict scrutiny, suspect classifications, and affirmative action
   • State Action Doctrine
     • Public function and entanglement theories
     • Limits on Congressional enforcement power
3. 3

   First Amendment Freedoms

   4 topics

   • Freedom of Speech: Content Regulation
     • Content-based versus content-neutral distinctions
     • Unprotected categories: incitement, true threats, obscenity
     • Fighting words and defamation standards
   • Speech in Special Contexts
     • Public forum doctrine and time, place, manner
     • Commercial speech (Central Hudson)
     • Government speech and compelled speech
   • Freedom of Religion
     • The Establishment Clause and its tests
     • Free Exercise Clause (Smith and its limits)
     • Religious accommodations and exemptions
   • Freedom of Association and Assembly
     • Expressive and intimate association
     • Compelled disclosure and membership

Constitutional Law flashcards for Juris Doctor (JD)

24 of 52 cards from the Constitutional Law deck — real questions with worked answers.

1. What three requirements established Marbury v. Madison (1803), and what power did it establish?

   Marbury v. Madison established judicial review—the power of federal courts to declare acts of Congress (and the executive) unconstitutional. It held the Supreme Court could not issue the writ because the statute (Judiciary Act of 1789) expanding its original jurisdiction was unconstitutional; courts must say what the law is.

2. What are the constitutional (Article III) requirements for standing?

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

3. When does a litigant have third-party (jus tertii) standing?

   When the litigant has suffered its own injury AND (1) there is a close relationship between the litigant and the third party, or (2) the third party faces some obstacle to asserting its own rights (e.g., doctors asserting patients' rights, sellers asserting buyers' rights).

4. What is the difference between the ripeness and mootness doctrines?

   Ripeness bars review of claims brought too early (before harm has occurred), focusing on the hardship of withholding review and fitness of the issue. Mootness bars claims brought too late (the controversy has ended); a live controversy must exist at all stages of litigation.

5. What are the recognized exceptions to the mootness doctrine?

   (1) Wrongs capable of repetition yet evading review (e.g., Roe v. Wade pregnancy); (2) Voluntary cessation by the defendant that could resume; (3) Class actions where the named representative's claim becomes moot but other class members' claims persist.

6. What is the political question doctrine and what are its key indicators?

   It bars courts from deciding issues constitutionally committed to another branch or lacking judicially manageable standards. Baker v. Carr factors include: textual commitment to a coordinate branch, lack of manageable standards, and need for nonjudicial policy determination. Examples: foreign affairs, impeachment procedures, and the Republican Form of Government (Guarantee Clause) Clause.

7. Under what circumstances may the Supreme Court NOT review a state court judgment (adequate and independent state grounds)?

   The Supreme Court will not review a state court decision if it rests on an adequate (fully dispositive) and independent (not based on federal law) state-law ground, because any ruling on the federal issue would be an advisory opinion.

8. What constitutional provision bars federal courts from issuing advisory opinions, and what two features make an opinion advisory?

   Article III's 'case or controversy' requirement. An opinion is advisory if (1) there are no adverse parties with a genuine stake, or (2) there is no actual likelihood that the court's decision will have a binding effect.

9. What is the source and scope of Congress's power to tax and spend?

   The General Welfare Clause (Art. I, §8) lets Congress tax and spend for the general welfare. This power exists only for taxing and spending; there is no general federal police power. Spending may be used to induce state action via conditions (a form of regulation through funding).

10. What is the modern test for whether an activity falls within Congress's Commerce Clause power?

    Congress may regulate: (1) the channels of interstate commerce; (2) the instrumentalities of, and persons/things in, interstate commerce; and (3) activities that have a substantial effect on interstate commerce. For intrastate economic activity, courts aggregate effects; for non-economic activity, aggregation is generally not allowed (Lopez, Morrison).

11. What limit on the Commerce Clause did NFIB v. Sebelius (2012) recognize?

    The Commerce Clause permits regulation of existing commercial activity but does NOT authorize Congress to compel individuals to enter commerce (i.e., to engage in commerce). The individual mandate could not be sustained under the Commerce Clause but was upheld as a tax.

12. What is the Necessary and Proper Clause and can it stand alone as a power?

    It (Art. I, §8) lets Congress make all laws necessary and proper to carry out its enumerated powers (McCulloch v. Maryland: 'let the end be legitimate... all means appropriate and plainly adapted' are valid). It is not an independent power—it must be tied to another enumerated power.

13. What power does Section 5 of the Fourteenth Amendment grant Congress, and what limit applies?

    Section 5 lets Congress enforce the 14th Amendment by appropriate legislation. Under City of Boerne v. Flores, the law must show 'congruence and proportionality' between the injury (a constitutional violation as defined by courts) and the remedy. Congress may remedy/deter violations but cannot create new substantive rights.

14. What is the anti-commandeering doctrine?

    Under the 10th Amendment, Congress cannot compel states to enact or enforce a federal regulatory program, nor commandeer state legislatures or executive officials to administer federal law (New York v. United States; Printz v. United States; Murphy v. NCAA). It may, however, regulate states through generally applicable laws and use conditional spending.

15. What is the Dormant Commerce Clause and what is the test for discriminatory vs. non-discriminatory state laws?

    The Dormant Commerce Clause bars states from unduly burdening interstate commerce even absent federal action. If a state law discriminates against out-of-staters, it is virtually per se invalid unless it is necessary to achieve an important non-economic government interest with no reasonable alternatives. If it is non-discriminatory but burdens commerce, it is valid unless the burden clearly exceeds the local benefits (Pike balancing).

16. What is the 'market participant' exception to the Dormant Commerce Clause?

    When a state acts as a buyer or seller in the market (rather than as a regulator), it may favor its own citizens without violating the Dormant Commerce Clause (e.g., a state-owned cement plant preferring in-state buyers).

17. What does the Privileges and Immunities Clause of Article IV protect, and who may invoke it?

    It bars states from discriminating against out-of-state citizens regarding fundamental rights or important economic activities (e.g., earning a livelihood) absent substantial justification and no less restrictive means. Only individual U.S. citizens (not corporations or aliens) may invoke it.

18. Under the Supremacy Clause, what are the types of federal preemption?

    (1) Express preemption—statute states intent to preempt; (2) Implied field preemption—federal regulation is so pervasive it occupies the field; (3) Implied conflict preemption—compliance with both is impossible, or state law obstacles the achievement of federal objectives.

19. What is the difference between separation of powers and checks and balances?

    Separation of powers divides government into three distinct branches (legislative, executive, judicial), each with its own functions. Checks and balances are the mechanisms by which each branch limits the others (e.g., veto, override, judicial review, impeachment, advice and consent).

20. What did Youngstown Sheet & Tube v. Sawyer establish about presidential power, including Justice Jackson's framework?

    The President's steel-seizure during the Korean War was unconstitutional. Justice Jackson's concurrence created a three-tier framework: (1) power is greatest when acting with Congress's authorization; (2) a 'zone of twilight' when Congress is silent; (3) power is at its lowest ebb when acting against Congress's expressed or implied will.

21. What is the difference between executive privilege and executive immunity?

    Executive privilege protects the confidentiality of presidential communications, but it yields to a demonstrated need in a criminal trial (U.S. v. Nixon). Executive immunity gives the President absolute immunity from civil liability for official acts (Nixon v. Fitzgerald) but no immunity for unofficial conduct (Clinton v. Jones).

22. What is an unconstitutional legislative veto, and what is the bicameralism and presentment requirement?

    INS v. Chadha held that any congressional action altering legal rights/duties outside the legislature must pass both houses (bicameralism) and be presented to the President for signature or veto (presentment). A one-house 'legislative veto' of executive action is unconstitutional.

23. What is the difference between principal and inferior officers under the Appointments Clause?

    Principal officers must be appointed by the President with Senate advice and consent. Inferior officers may be appointed by the President alone, courts of law, or heads of departments if Congress so vests. Inferior officers are supervised/removable by higher executive officers and have limited duties (Morrison v. Olson).

24. What is the constitutional rule on removal of executive officers?

    The President may remove purely executive officers at will. Congress may impose 'for cause' limits on removal of officials who exercise quasi-legislative/quasi-judicial functions (multimember independent agencies), but it cannot give itself removal power except by impeachment. Seila Law: single-director agency heads must be removable at will.

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