Constitutional Law - Structure and Rights
Constitutional Law tests structure and rights: judicial review, federalism, commerce, due process, equal protection, and First Amendment. The exam often asks you to name the standard of review before applying it.
Federal power and limits
- Congress may regulate interstate commerce, including channels, instrumentalities, and activities substantially affecting commerce.
- State regulation that discriminates against interstate commerce is virtually per se invalid; nondiscriminatory regulation is valid if it does not unduly burden commerce.
- Due process requires fair notice and a meaningful hearing; equal protection requires rational basis, intermediate scrutiny, or strict scrutiny.
Individual rights
- Content-based speech regulation gets strict scrutiny; content-neutral time, place, and manner rules get intermediate scrutiny.
- Commercial speech gets intermediate scrutiny and must directly advance a substantial interest.
- State action is required for constitutional claims; private conduct generally is not covered. Standing requires injury, causation, and redressability.
Worked example
A state bans direct shipments from out-of-state wineries while allowing in-state wineries to ship. The law facially discriminates against interstate commerce. The Twenty-First Amendment does not immunize the discrimination; the state must show a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. The ban is invalid.
Traps
Do not apply strict scrutiny to all speech; commercial speech and content-neutral regulations have lower standards. Do not forget standing, ripeness, and mootness. Do not treat the Fourteenth Amendment as applying directly to private actors.