Constitutional Law
Government Action, Rights, and Standards
Begin every constitutional question by identifying government action and the right affected. Standing requires injury in fact, causation, and redressability; taxpayer standing is generally unavailable, while organizations may sue for members. Ripeness and mootness are justiciability limits, though capable-of-repetition and voluntary-cessation doctrines may preserve a case. The political-question doctrine bars claims committed to other branches.
Substantive due process protects fundamental rights such as privacy, marriage, and procreation; infringements receive strict scrutiny. Economic and social legislation receives rational-basis review. Equal protection uses suspect classifications (race, national origin) under strict scrutiny, sex and illegitimacy under intermediate scrutiny, and most other classifications under rational basis. Procedural due process asks what process is due before deprivation of life, liberty, or property.
The First Amendment distinguishes content-based restrictions (strict scrutiny) from content-neutral time, place, and manner rules (intermediate scrutiny). Public forums, limited forums, and nonpublic forums receive different treatment. Commercial speech receives intermediate scrutiny; obscenity, incitement, and true threats are unprotected. Federalism questions often turn on the Commerce Clause, preemption, the Dormant Commerce Clause, and the Tenth Amendment.
Traps and Rule of Thumb
Traps include ignoring the state-action requirement, treating all speech as equally protected, and confusing due process with equal protection. Rule of thumb: classify the actor, the right, and the scrutiny level before analyzing. For example, a law banning signs but allowing flags is content-based and presumptively invalid.