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NC Bar: Constitutional Law on the NC Bar

NC Bar · Work through your exam, one topic at a time.

All guide sections

Constitutional Law on the NC Bar

Constitutional Law questions are mostly MBE-style: a statute or official action, a challenger, and a question about justiciability, the tier of scrutiny, or the limits of federal power. Essays occasionally pair due process or equal protection with a North Carolina statute or local ordinance.

Judicial power and justiciability

  • Standing: injury in fact (concrete, particularized, actual or imminent), causation, and redressability. Taxpayer standing is generally barred except for Establishment Clause spending challenges.
  • Ripeness, mootness (with the capable-of-repetition exception), political question, and the bar on advisory opinions.
  • State action: the Fourteenth Amendment reaches only state action; the Thirteenth has no such requirement. Public-function and entanglement theories.

Rights and federalism

  • Procedural due process balances private interest, risk of error, and government interest; substantive due process applies strict scrutiny to fundamental rights and rational basis to economic regulation.
  • Equal protection tiers: strict (race, national origin, fundamental rights, some alienage), intermediate (sex, illegitimacy), rational basis (the rest).
  • First Amendment: content-based regulation gets strict scrutiny; content-neutral time, place, and manner rules get intermediate review. Prior restraints are disfavored.
  • Commerce power: channels, instrumentalities, persons or things in interstate commerce, and activities substantially affecting commerce, with Lopez and Morrison limiting noneconomic intrastate activity.

Worked example

A North Carolina statute bars out-of-state contractors from bidding on state projects. An out-of-state firm has standing: economic injury, causation, and redressability. The statute discriminates against interstate commerce on its face, so under the dormant Commerce Clause the state must show a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. Protecting in-state business is not legitimate; the statute fails.

Traps

Applying strict scrutiny to routine economic regulation; forgetting that the Eleventh Amendment bars damages suits against states but not prospective relief against state officers (Ex parte Young); treating a content-neutral permit scheme as a prior restraint violation without checking procedural safeguards.