Constitutional Law: Structure, Rights, and Standards of Review
Two halves of the course
Constitutional Law questions split cleanly into structure (federalism, separation of powers, commerce, taxing and spending, state regulation of interstate commerce) and individual rights (due process, equal protection, speech, religion, and incorporation). Identify which half you are in before you start writing.
Structure
The Commerce Clause reaches channels, instrumentalities, and activities with a substantial effect on interstate commerce, including intrastate activity that is part of a broader regulatory scheme. The Dormant Commerce Clause bars state laws that discriminate against or unduly burden interstate commerce, subject to market-participant and traditional-government-function exceptions. Taxing and spending power permits conditions on federal funds if they are related to the federal interest, unambiguous, and not coercive.
Rights and tiers
Equal protection and due process questions turn on the tier: strict scrutiny for suspect classifications and fundamental rights (compelling interest, narrow tailoring); intermediate for sex and illegitimacy (important interest, substantial relation); rational basis for everything else (legitimate interest, rational relation). Speech analysis asks first whether the regulation is content-based (strict) or content-neutral (intermediate time, place, and manner). Prior restraints carry a heavy presumption of invalidity.
Worked example
A city bans all signs over eight feet on residential lawns to reduce clutter. That is content-neutral, so ask whether it is narrowly tailored to a significant government interest and leaves open alternative channels. A blanket ban with no exceptions likely fails the tailoring prong.
Traps
- Do not skip the threshold question of state action in rights questions.
- The Establishment Clause tests are fact-specific; identify the test before applying it.
- Procedural due process requires notice and an opportunity to be heard before deprivation, not after, absent exigency.