Study guide
Constitutional Law is one of seven subjects tested on the Multistate Bar Examination, with 25 of the 175 scored questions drawn from this area. Under the NCBE's official subject matter outline, about half of these questions come from individual rights, and the other half are split among judicial review, separation of powers, and federalism. Every rule below is federal constitutional law unless a question tells you a state constitution is at issue.
Justiciability: The Gate Before the Merits
Before a federal court reaches the merits of a constitutional claim, the case must satisfy Article III's case-or-controversy requirement. Federal courts do not issue advisory opinions on hypothetical disputes. Four doctrines police this gate. Standing requires the plaintiff to show an injury in fact that is concrete, actual or imminent, and not merely speculative; causation linking the injury to the defendant's conduct; and redressability, meaning a favorable court decision would likely fix the harm. A generalized grievance shared by all taxpayers or all citizens ordinarily does not confer standing. Ripeness bars claims filed too early, before the harm has actually occurred or become imminent. Mootness bars claims filed too late, after the controversy has already been resolved, though exceptions exist for harms capable of repetition yet evading review and for voluntary cessation by the defendant. The political question doctrine keeps courts out of disputes the Constitution commits to another branch, such as the procedures a state legislature uses to ratify a constitutional amendment. Example: Dana sues to challenge a city ordinance she fears might someday be enforced against her business, but the city has never enforced it against anyone. A court would likely dismiss for lack of ripeness because the injury is speculative. On the MBE, watch for answer choices that sound sympathetic but fail one of these four threshold requirements; the correct answer often turns on justiciability rather than the underlying constitutional right.
Federal Power and the Separation of Powers
Congress's enumerated powers are read broadly. The commerce power lets Congress regulate the channels of interstate commerce, the instrumentalities of and persons or things in interstate commerce, and activities that substantially affect interstate commerce, including purely intrastate economic activity when aggregated with similar activity nationwide. The taxing and spending powers let Congress tax for the general welfare and attach conditions to federal funds, so long as conditions are stated clearly, relate to a federal interest, and are not so coercive that they become compulsion rather than persuasion. Congress may also enforce the Reconstruction Amendments, but its Section 5 power to enforce the Fourteenth Amendment is remedial, not a license to redefine constitutional rights themselves. The president holds independent authority as chief executive and commander in chief but cannot make law unilaterally; the classic framework asks whether the president acts with express or implied congressional authorization (strongest claim to legality), in the absence of a congressional position (a zone of twilight), or against congressional will (weakest claim). The nondelegation doctrine permits Congress to delegate rulemaking authority to agencies as long as it supplies an intelligible principle. The president needs Senate confirmation to appoint principal officers but can typically remove executive officials without cause, subject to narrow, historically rooted exceptions for certain multimember independent agencies. Example: Congress conditions five percent of a state's federal highway funds on raising the drinking age, as upheld in South Dakota v. Dole; this is a valid, non-coercive spending condition because the amount at stake is a small percentage of the state's budget.
Federalism Limits on State and Federal Power
Federalism doctrine polices the boundary between national and state authority in both directions. The Tenth Amendment bars the federal government from commandeering state legislatures or state executive officials to administer a federal regulatory program; Congress can regulate individuals directly and can offer states a genuine choice to participate in a federal-state program, but it cannot conscript states as such. The Eleventh Amendment bars private suits against a state in federal court for money damages, absent a valid abrogation by Congress under Section 5 or the state's own waiver of immunity; it does not bar suits against individual state officers for prospective injunctive relief. On the other side, the dormant commerce clause restricts states from discriminating against or unduly burdening interstate commerce even without a conflicting federal statute. A state law that discriminates against out-of-state commerce on its face or in effect is nearly always struck down unless it serves a legitimate local purpose that cannot be achieved through nondiscriminatory means, though the market participant exception lets a state favor itself when it acts as a buyer or seller rather than a regulator. The supremacy clause makes valid federal law supreme over conflicting state law, and preemption can be express, or implied through field preemption (comprehensive federal regulatory scheme) or conflict preemption (compliance with both is impossible, or the state law is an obstacle to federal purposes). Example: A state bans importing out-of-state solid waste into local landfills; this facially discriminates against interstate commerce and is unconstitutional absent a strong nondiscriminatory justification.
Due Process and Equal Protection
Both due process and equal protection claims begin by identifying the government action, the right or classification at stake, and the applicable level of scrutiny. Procedural due process asks what process is due before the government deprives a person of life, liberty, or property; courts balance the private interest, the risk of erroneous deprivation and value of additional safeguards, and the government's interest, including administrative burden. Substantive due process asks whether the government can infringe a right at all. Fundamental rights, such as the right to marry, to procreate, to direct the upbringing of one's children, to use contraception, and to interstate travel, trigger strict scrutiny, requiring the law be narrowly tailored to a compelling government interest. Other liberty and property interests receive only rational basis review, upheld if rationally related to a legitimate government interest. Equal protection analysis mirrors this structure but starts with a classification. Race, national origin, and alienage (with narrow exceptions) are suspect classifications triggering strict scrutiny. Gender and legitimacy are quasi-suspect, triggering intermediate scrutiny, requiring an exceedingly persuasive justification substantially related to an important government interest. All other classifications, including age, wealth, and most economic regulation, get rational basis review. Example: A city ordinance requires a permit before demolishing historic buildings, applying evenly to all owners; because no fundamental right or suspect class is implicated, a court applies rational basis review and will uphold the ordinance if any conceivable legitimate purpose supports it.
First Amendment Freedoms
Speech doctrine first asks whether the expression is protected at all. Categories of unprotected or less-protected speech include incitement to imminent lawless action, true threats, fighting words, obscenity, and defamation, though even these have constitutional limits. Content-based restrictions on protected speech, meaning laws that regulate speech because of its message, trigger strict scrutiny. Content-neutral restrictions, such as reasonable time, place, and manner regulations in a public forum, need only be narrowly tailored to serve a significant government interest and leave open ample alternative channels; the regulation need not be the least restrictive means. Commercial speech that is not misleading and concerns lawful activity receives intermediate scrutiny under a four-part test balancing the government's interest against the restriction's fit. Government restrictions on its own employees' or students' speech allow more regulation than restrictions on the public at large. Prior restraints on speech, such as injunctions or licensing schemes that require pre-approval, bear a heavy presumption against constitutionality. Laws must also avoid vagueness (failing to give fair notice of what is prohibited) and overbreadth (sweeping in substantial protected speech along with unprotected speech). The Religion Clauses cut in two directions: the Free Exercise Clause forbids laws that target religious practice for special burdens, though a neutral, generally applicable law that only incidentally burdens religion is usually upheld under rational basis; the Establishment Clause forbids government actions that endorse or coerce religious participation, historically assessed by considering purpose, effect, and historical practices and understandings. Example: A city bans all lawn signs citywide to reduce visual clutter, applying regardless of message; this content-neutral rule is evaluated under intermediate scrutiny, not strict scrutiny, because it does not target particular viewpoints or subjects.
Key terms
- Standing
- — The requirement that a plaintiff show injury in fact, causation, and redressability before a federal court will hear the case.
- Ripeness
- — A justiciability doctrine barring claims brought before the harm has occurred or become sufficiently imminent.
- Mootness
- — A justiciability doctrine barring claims where the live controversy has already been resolved, subject to limited exceptions.
- Dormant commerce clause
- — The implied limit on state laws that discriminate against or unduly burden interstate commerce, even without a conflicting federal statute.
- Anti-commandeering doctrine
- — The Tenth Amendment principle that the federal government cannot compel state legislatures or executives to administer a federal program.
- Preemption
- — The supremacy clause doctrine under which valid federal law displaces conflicting state law, whether express, field, or conflict preemption.
- Strict scrutiny
- — The most demanding standard of review, requiring a law be narrowly tailored to a compelling government interest; applies to fundamental rights and suspect classifications.
- Intermediate scrutiny
- — A standard requiring an important government interest and a substantial relationship to the means chosen; applies to gender classifications and commercial speech.
- Rational basis review
- — The most deferential standard, upholding a law if rationally related to any legitimate government interest.
- Content-based restriction
- — A speech regulation that targets expression because of its subject matter or viewpoint, triggering strict scrutiny.
- Prior restraint
- — A government restriction that prevents speech before it occurs, such as a licensing requirement or injunction, presumptively unconstitutional.
- State action doctrine
- — The principle that most constitutional protections restrain only government conduct, not purely private conduct.
Exam tips
- Work through justiciability before touching the merits; an answer choice can be correct on the constitutional law but wrong because the case is not ripe, is moot, or the plaintiff lacks standing.
- When a question involves a state regulating interstate commerce with no conflicting federal statute, think dormant commerce clause, not the affirmative commerce power.
- Identify whether the challenged rule is content-based or content-neutral before picking a scrutiny level for a free speech question; this single distinction resolves many close calls.
- For equal protection, first find the classification, then match it to its scrutiny tier; test writers build distractors that apply the wrong tier to a correctly identified classification.
- Remember that most individual-rights guarantees apply only to state action; private discrimination alone, without significant government involvement, is not a constitutional violation.