NextGen Bar Exam Constitutional Law Flashcards

24 sample cards from the Constitutional Law deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is the state action requirement, and why does it matter?

   Most constitutional rights (especially under the Fourteenth Amendment) restrain only governmental action, not private conduct. A plaintiff must show the challenged conduct is fairly attributable to the government before constitutional protections apply.

2. What are the two main exceptions under which private conduct counts as state action?

   (1) The public function exception — a private party performs a task traditionally and exclusively reserved to the state (e.g., running elections, a company town); and (2) the entanglement/joint participation exception — the state is significantly involved in, encourages, or facilitates the private conduct.

3. What process is "due" under procedural due process, and what is the balancing test?

   Deprivation of life, liberty, or property requires fair process — typically notice and an opportunity to be heard. The amount of process is determined by the Mathews v. Eldridge balancing of (1) the private interest affected, (2) the risk of erroneous deprivation and value of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens.

4. What triggers procedural due process protection — what counts as a protected "property" or "liberty" interest?

   A property interest requires a legitimate claim of entitlement (created by an independent source like statute or contract), not a mere expectation. A liberty interest includes freedom from bodily restraint and fundamental rights, plus entitlements such as some government benefits and certain reputational-plus interests.

5. What is substantive due process, and what two tiers of review apply?

   Substantive due process protects fundamental rights from government interference regardless of process. Laws burdening fundamental rights (e.g., privacy, marriage, travel, voting) get strict scrutiny — narrowly tailored to a compelling interest. Laws affecting non-fundamental interests get rational basis — rationally related to a legitimate interest.

6. List several rights recognized as "fundamental" under substantive due process.

   Marriage; procreation; contraception; family relations and child-rearing; private consensual sexual intimacy; same-sex marriage (Obergefell); interstate travel; voting; and the right to refuse unwanted medical treatment. Note: there is no fundamental right to assisted suicide (Glucksberg).

7. State the three tiers of Equal Protection scrutiny and their triggers.

   (1) Strict scrutiny — suspect classifications (race, national origin, alienage) and fundamental rights: must be narrowly tailored to a compelling interest. (2) Intermediate scrutiny — quasi-suspect classes (gender, illegitimacy): substantially related to an important interest. (3) Rational basis — all others (age, wealth, disability): rationally related to a legitimate interest.

8. What must a plaintiff show to trigger heightened Equal Protection scrutiny for a facially neutral law?

   The plaintiff must prove both discriminatory intent/purpose and discriminatory effect; a disparate impact alone is insufficient to trigger strict or intermediate scrutiny (Washington v. Davis).

9. How does Equal Protection treat gender classifications, and which party bears the burden?

   Gender classifications receive intermediate scrutiny and must be substantially related to an important government interest, with an "exceedingly persuasive justification" (VMI). The government bears the burden, and the justification cannot rely on overbroad gender stereotypes.

10. What are the two categories of governmental action under the Takings Clause, and the remedy?

    (1) Possessory/physical takings — government occupation or permanent physical invasion (per se taking). (2) Regulatory takings — regulation that goes too far. A regulation denying all economically beneficial use is a per se taking (Lukas); otherwise courts apply the Penn Central factors (economic impact, interference with investment-backed expectations, character of the action). The remedy for a taking is just compensation (fair market value).

11. What is the "public use" requirement of the Takings Clause after Kelo?

    Public use is broadly construed to mean a public purpose; government may take private property and transfer it to another private party if the taking is rationally related to a conceivable public benefit, such as economic development (Kelo v. City of New London).

12. What is the test for content-based versus content-neutral speech regulations?

    Content-based regulations (targeting subject matter or viewpoint) are presumptively invalid and get strict scrutiny — necessary to serve a compelling interest. Content-neutral regulations get intermediate scrutiny under the time, place, and manner test.

13. State the time, place, and manner test for speech in a public forum.

    In a traditional or designated public forum, content-neutral restrictions are valid if they (1) are narrowly tailored to serve a significant government interest and (2) leave open ample alternative channels of communication. Content-based restrictions get strict scrutiny.

14. List the categories of unprotected or less-protected speech.

    Incitement to imminent lawless action (Brandenburg); fighting words; true threats; obscenity (Miller test); defamation; child pornography; and speech integral to criminal conduct. Commercial speech receives intermediate protection under the Central Hudson test.

15. State the Brandenburg test for incitement.

    Speech advocating illegal action may be punished only if it is (1) directed to inciting or producing imminent lawless action and (2) likely to incite or produce such action.

16. State the Miller test for obscenity.

    Material is obscene if (1) the average person, applying contemporary community standards, would find it appeals to the prurient interest; (2) it depicts sexual conduct in a patently offensive way as defined by applicable law; and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value (the last judged by a national reasonable-person standard).

17. What is the test for restrictions on commercial speech (Central Hudson)?

    For speech that is lawful and not misleading, the regulation must (1) serve a substantial government interest, (2) directly advance that interest, and (3) be no more extensive than necessary (a narrow-tailoring / reasonable-fit requirement). Misleading or unlawful commercial speech is unprotected.

18. What freedom of association protection applies to compelled disclosure or forced membership?

    Freedom of association protects the right to associate for expressive purposes; laws that infringe it (e.g., compelled disclosure of membership or forced inclusion of unwanted members that impairs the group's message) are subject to strict scrutiny — narrowly tailored to a compelling interest (NAACP v. Alabama; Boy Scouts v. Dale).

19. What is the current test for laws challenged under the Free Exercise Clause?

    A neutral law of general applicability that incidentally burdens religion needs only a rational basis (Employment Division v. Smith). But laws that are not neutral or not generally applicable — targeting religious conduct — get strict scrutiny (Church of Lukumi Babalu Aye).

20. How are Establishment Clause challenges analyzed after Kennedy v. Bremerton?

    The Supreme Court abandoned the Lemon test and now interprets the Establishment Clause by reference to historical practices and understandings (the history-and-tradition test), asking whether the government practice accords with this nation's historical tradition regarding religion.

21. What is the rule on prior restraints and the press?

    Prior restraints (court orders or systems barring speech before publication) bear a heavy presumption of unconstitutionality. The government must meet an extraordinarily high burden; even claims of national security rarely justify them (Near v. Minnesota; New York Times Co. v. United States — the Pentagon Papers case).

22. What defamation standard applies to public officials and public figures versus private figures?

    Public officials and public figures must prove "actual malice" — that the defendant published with knowledge of falsity or reckless disregard for the truth (New York Times v. Sullivan). Private figures on matters of public concern need only prove negligence to recover actual damages (Gertz v. Robert Welch).

23. Distinguish the Article IV Privileges and Immunities Clause from the Fourteenth Amendment Privileges or Immunities Clause.

    The Article IV (Comity) Clause bars a state from discriminating against out-of-state citizens regarding fundamental rights or essential economic activities (e.g., the right to earn a living), unless the state shows a substantial justification and no less restrictive means; it protects only individual citizens, not corporations or aliens. The Fourteenth Amendment Clause protects only the narrow rights of national citizenship (e.g., the right to interstate travel) and is rarely invoked.

24. Who can invoke the Article IV Privileges and Immunities Clause, and what kind of discrimination triggers it?

    Only individual U.S. citizens of other states may invoke it (not corporations or aliens). It is triggered when a state intentionally discriminates against nonresidents regarding fundamental rights — chiefly the pursuit of a livelihood or essential commercial activities — and the state must justify the discrimination with a substantial reason closely related to nonresidents.

What this deck covers

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