Constitutional Law—Highly Tested MBE Topics, Charts, and a Checklist!

Individual Rights

1. Due Process Clause

The focus is on the right that is being burdened.

Procedural due process

• The government may not intentionally deprive someone of life, liberty, or property without notice and an opportunity to be heard. The requirements of the notice depend on what is being taken way.

Substantive due process

• Be able to differentiate between Due Process Clause issues and Equal Protection Clause issues. Where a law limits everyone’s ability to engage in an activity, it is a Due Process Clause Where a law treats a person or class of personsdifferently from others, it is an Equal Protection Clause issue.

• Strict scrutiny for fundamental rights:
  • The burden is on the government to show the law is necessary to a compelling interest.
  • Privacy rights (mnemonic = MOPPS—marriage, obscenity in the home, parental and family rights, procreation and contraception, and sexual relations), right to vote, interstate travel, First Amendment rights, the right to refused medical treatment
  • The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest.
  • Examples: right to education, welfare benefits, all economic regulations

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  2. Equal Protection

  For equal protection purposes, the focus is on the class that is being discriminated against.

  • Strictscrutiny
    • The burden is on the government to show the law is necessary to a compelling interest.
    • Examples: (mnemonic = FAR) fundamental rights when class is involved, alienage [term used by the examiners] if the state is discriminating (unless the political function doctrine applies, in which case the standard is rational basis), and race .
    • The burden is on the government to show the regulation is substantially related to an important governmental interest.
    • Examples: (mnemonic = GI) gender , illegitimacy
    • The burden is on the plaintiff to show the law is not rationally related to a legitimate government interest. [term used by the examiners]
    • Examples: age, education, everything else

    Equal Protection Clause Chart

    

    3. First Amendment

    For a free speech violation to occur, there has to be a government regulation of private speech. Private actors cannot violate another’s First Amendment free speech rights. Restrictions on speech are generally classified as content-based, viewpoint-based, or content-neutral. The level of scrutiny a restriction on speech faces depends, in part, on which of these three categories it is in.

    • Content-based: Prohibiting the class of content that can be heard. Strict scrutiny unless it is symbolic speech, unprotected speech (true threats, etc.) or less protected speech (including commercial speech and sexual speech)
      • Examples when strict scrutiny is not needed:
        • Symbolic speech: A law which regulates conduct and places an incidental burden on speech is allowable if the regulation is narrowly tailoredto an important governmental interestand it is unrelated to the suppression of the speech.

        

        • Unprotected speech: regulations regarding unprotected speech only need to pass the rational basis

        

        • Commercial Speech: False or misleading speech is not protected. The law must meet the Central Hudson test which states:
          1. the speech must be lawful and not misleading,
          2. the statute must serve a substantial governmental interest,
          3. the statute must directly advance that interest, and
          4. the statute must be narrowly tailored (not more excessive than it needs to be).

        

        • • Sexual or indecent speech The regulation must:
            1. serve a substantial governmental interest, and
            2. leave open reasonable alternative channels of communication.
          • Time-place-or-manner restrictions:
            • Public forum:
              • Examples: streets, sidewalks, parks, designated public forums

              

              • • • • Standard: content-neutral, alternative channels of communication, narrowly tailored

                    

                    • • • Private forum: (rational basis)
                          • Examples: military bases, airports

                          

                          

                          • • • • Standard: Rational basis: viewpoint-neutral and reasonably related to a legitimate government interest.

                                Free Speech Chart

                                

                                Freedom of religion

                                • EstablishmentClause: The laws must be neutral. Laws that favor one religion over another = strict scrutiny. Where the government legislation or program is neutral on its face, the Establishment Clause must be interpreted by “reference to historical practices and understandings.”

                                

                                • Free Exercise Clause: Beliefs are absolutely protected. However, conduct is not. The government may pass neutral laws of general applicability so long as their goal is not to burden or interfere with religion.

                                

                                Go to the next topic, Contracts—Highly Tested MBE Topics, Charts, and a Checklist!

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