How To Write A Good Constitutional Law Essay
This is a sample of our (approximately) 12 page long Constitutional Law Bar Essay Checklist notes, which we sell as part of the Constitutional Law - Bar Exam Outlines collection, a Passed CA Bar Exam on first attempt package written at Thomas Jefferson School Of Law in 2011 that contains (approximately) 39 pages of notes across 4 different documents.
Constitutional Law Bar Essay Checklist Revision
The following is a plain text extract of the PDF sample above, taken from our Constitutional Law - Bar Exam Outlines. This text version has had its formatting removed so pay attention to its contents alone rather than its presentation. The version you download will have its original formatting intact and so will be much prettier to look at.
CON LAW ESSAY CHECKLIST I.
• Political Question
• 11th Amendment
• Separation of Powers
• State Interference w/Federal System
Dormant Commerce Clause
Privileges & Immunities
III. INDIVIDUAL RIGHTS
• State Action
Content Based Restrictions
Content Neutral Restrictions
• Taking (5th)
Fee Exercise Clause
• Retroactive Legislation
Impairment of Contract
Ex Post Facto
Bills of Attainder
• Equal Protection
Classification of Fundamental Right
• Procedural Due Process
Life, Liberty, Property Interest
What Process Is Due?
• Substantive Due Process
Marriage, Procreation, Privacy
Justiciability Doctrines/Preliminary Issues Executive Power Legislative Power/Federalism State Action Procedural Due Process Substantive Due Process Equal Protection Clause 1st Amendment Issues
J/P EP F SA PDP SDP EPC 1st
JUSTICIABLE CASE/CONTROVERSY (RAMPSE)
P not entitled to review before its enforcement unless threat of immediate harm
Fed. Ct. may not enjoin pending state court proceeding unless harassment or bad faith
Fed. Ct. will abstain from resolving a constitutional claim if there is an unsettled ? of state law
Real controversy must exist at all stages of review
• Capable of repetition evading review
• Voluntary cessation
• Class actions
• Political Question
Fed. Ct. will not determine political questions that have constitutionally committed to another branch or inherently capable of judicial resolution
• **Standing (Raise 1st)
P suffered: 1) concrete injury in fact, 2) caused by the D, 3) that is redressible by the court
• Special relationship between P & injured party, party cannot assert own rights
• Standing to challenge gov't expenditures under Establishment Clause
• Congress' spending power must be involved
• Members have standing to sue in their own right
• Interests related to organization's purpose
• Individual participation not required
• Eleventh/11th Amendment
Prevents Federal and State Cts. From hearing suits involving citizens suing their own state or another state government.
• P is Federal of State Gov't
• Against Local Gov't
• Against state official for personal money damages
GOVERNMENTAL POWER Separation of Powers
• Judicial (see above)
Foreign Affairs Powers
• Paramount power to represent U.S. in day to day foreign relations
• Agreements between U.S. & foreign country negotiated by President
• Power to enter into w/ 2/3 vote of Senate
• Prevails over conflicting state laws, conflict between treaty and fed law - last one adopted controls, Constitutional always supreme
• Agreements between U.S. and foreign country that is effective when signed by President and head of country
• Prevail over state laws, not over fed law or Constitution
Commander in Chief
• Broad powers to use American troops in foreign countries
• Appoints all ambassadors, public ministers, federal judges, official officers
• Any executive branch officer (unless limited by statute)
• Override (law still passes if 2/3 vote in each house), pocket (10 days), line item (unconstitutional)
• Power to pardon those accused or convicted of federal criminal crimes
• Executive privilege to keep certain communications secret (national security)
• Exception for criminal proceedings if need is demonstrated
• From civil suits for money damages involving actions that occurred while in office. None for actions that occurred prior to taking office.
• Treason, bribery, high crimes and misdemeanors
• Majority vote from House to impeach, 2/3 from Senate to convict and remove
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Related Constitutional Law Bar Exam Samples:
I. CBC v. Retirement World
1. State Action
The first question that has to be asked is whether Retirement World is a state actor at all. Only state government and its sub-entities are bound by the Fourteenth Amendment, not private parties. In determining whether an ostensibly private party is in fact acting in a way that requires adherence to constitutional requirements, the courts have found four categories of state action:
a) private parties performing public functions;
b) government entangled with private parties;
c) legislative approval of private action; and
d) judicial enforcement of private action
Here, the only possible category that fits is the first one. In Marsh v. Alabama (1946) the Court found a company-owned town to be a state actor, as it had all the features of a town. The facts here are quite similar to that in Marsh, except that the residents themselves own the town. Homeowners of course are not state actors, but when they act together to create the semblance of a town, there is much more reason to find state action. While shopping centers have been found not to be state actors (Hudgens v. NLRB (1976)), the facts here are much closer to Marsh. Thus, even though the public function prong of the state action doctrine is limited, this is probably one situation where it would apply.
Conclusion: Retirement World is probably a state actor.
2. Free Exercise Clause
The question is whether the first ordinance violates the Free Religious Exercise Clause of the First Amendment. Generally speaking, if a statute burdens religious conduct only incidentally, as part of a generally applicable rule of conduct, then the Free Exercise claim fails. (Employment Division v. Smith (1990)). In Smith, for example, a generally applicable rule that firing from a job for drug use disqualifies one for unemployment compensation was held valid, despite the fact that it burdened the religious exercise of the plaintiffs, who smoked a hallucinogenic drug as part of a Native American religious ritual. However, government action aimed at religious exercise in particular will be subject to strict scrutiny and probably struck down (Church of the Babalu Aye v. Hialeah (1993)).
Here, there is reason to suspect that the statute, even though facially neutral, was motivated by concerns over the CBC’s rituals. The impetus from the statute arose because of the discovery of the cult’s action, and its exceptions suggest that very little animal cutting will be banned except that done by the CBC. Note also that any legitimate interest the town might have had in protecting animals could have been taken care of by an animal theft and/or an animal cruelty statute that would not have been so closely targeted at the CBC’s actions.
Note finally that it doesn’t matter whether the ritual is central or peripheral to the religion’s dogma. The Supreme Court has been unwilling to inquire, in Free Exercise cases, into the centrality of a particular ritual.
Conclusion: The cutting ordinance is probably unconstitutional.
3. Free Speech/Time Place and Manner Regulation
The parade ordinance seems to be a targeted law masquerading as a neutral law, here, a time, place, and manner restriction on speech. The first requirement of such restrictions is that they be content-neutral. Here, the ordinance is facially neutral, but because it was enacted immediately after the CBC started requesting permits, and because its numerical cut-off is just under the number of people necessary for the ritual, there’s good reason to believe that it is content-based. Thus, as a content-based restriction on speech in a traditional public forum — a street — the ordinance would have to satisfy strict scrutiny.
It is unlikely that the statute could satisfy strict scrutiny. There is no compelling reason for the restriction, except residents’ dislike of the speech or their fear that it will lead to converts, neither of which is a legitimate, let alone a compelling, reason for restricting speech.
If for some reason a court held that the ordinance was in fact content-neutral, then the ordinance would have to be narrowly tailored and allow the speakers an alternative means of making their message heard (Ward v. Rock Against Racism (1989)). The narrow tailoring requirement here is not as strict as that similarly-worded requirement in equal protection (Ward). Even so, it might be asked whether the speakers did in fact have an alternative means of speaking, since the ordinance bans all marches of six or more people for six months, thereby making it impossible for the CBC to perform the ritual as it is required to be performed, i.e., with seven individuals. Moreover, the ban on use of props would also make the ritual harder to perform, and thus burden speech, probably unnecessarily (since any legitimate government interest, such as a concern for safety or litter, could be taken care of by less speech restrictive means). A total ban on marches for that long a period is a significant burden on speech, which might fail even the lenient time, place or manner test.
Under either analysis, then, the ordinance is probably unconstitutional.
Conclusion: The parade ordinance would probably be declared unconstitutional.