Full Outline Structure
A hierarchical breakdown of every topic your Constitutional Law outline should cover.
1
Judicial Review & Justiciability
Judicial Review
- Marbury v. Madison — Supreme Court authority to review constitutionality of federal statutes
- Martin v. Hunter's Lessee — appellate jurisdiction over state court decisions on federal questions
- Cooper v. Aaron — Supreme Court as ultimate interpreter of the Constitution
- Political question doctrine — Baker v. Carr six-factor test
Standing
- Injury in fact — concrete, particularized, actual or imminent (Lujan v. Defenders of Wildlife)
- Causation — injury fairly traceable to defendant's conduct
- Redressability — favorable decision likely to remedy the injury
- Third-party standing — close relationship + hindrance to third party's own suit
- Taxpayer standing — limited to Establishment Clause challenges (Flast v. Cohen)
Ripeness & Mootness
- Ripeness — hardship of withholding review vs. fitness for judicial decision
- Mootness — live controversy must exist at all stages of litigation
- Exceptions to mootness — capable of repetition yet evading review, voluntary cessation, class action certification
2
Federal Legislative Power
Commerce Clause
- Three categories — channels of commerce, instrumentalities, activities with substantial effect (Lopez)
- Aggregation principle — Wickard v. Filburn, Gonzales v. Raich
- Limits — cannot compel commerce (NFIB v. Sebelius individual mandate holding)
- Rational basis review for Commerce Clause legislation
Spending Power
- Conditions must be unambiguous, related to federal interest, not coercive (South Dakota v. Dole)
- Coercion vs. inducement — NFIB v. Sebelius Medicaid expansion as gun to the head
- General welfare — Congress has broad discretion in defining
Taxing Power
- Tax vs. penalty distinction — NFIB v. Sebelius functional test
- Direct taxes must be apportioned; 16th Amendment exception for income taxes
- Export Clause — no tax on exports from any state
Section 5 of the Fourteenth Amendment
- Congruence and proportionality test (City of Boerne v. Flores)
- Congress can enforce but not expand substantive 14th Amendment rights
- Successful exercises — Voting Rights Act provisions; unsuccessful — RFRA applied to states
3
Federalism & Preemption
Preemption
- Express preemption — statutory text explicitly displaces state law
- Field preemption — federal scheme so pervasive it occupies the field
- Conflict preemption — impossibility (cannot comply with both) or obstacle (frustrates federal purpose)
- Presumption against preemption in areas of traditional state regulation
Anti-Commandeering & Intergovernmental Immunity
- Congress cannot compel states to enact legislation (New York v. United States)
- Congress cannot commandeer state executive officials (Printz v. United States)
- Congress cannot coerce states to maintain federal programs (Murphy v. NCAA)
- Dormant Commerce Clause — no discriminatory or unduly burdensome state regulation of interstate commerce
- Pike balancing test — burden on commerce vs. local benefit
4
Separation of Powers
Executive Power
- Youngstown framework — Jackson's three zones (with, twilight, against Congress)
- Commander-in-chief powers and war powers
- Executive orders and executive privilege (United States v. Nixon)
- Removal power — Congress cannot limit removal of principal officers without cause protection
Non-Delegation & Administrative State
- Intelligible principle requirement for delegation to agencies
- Major questions doctrine — agencies need clear congressional authorization for issues of vast economic/political significance (West Virginia v. EPA)
- Legislative veto is unconstitutional (INS v. Chadha)
- Appointments Clause — principal vs. inferior officers
Presidential Immunity & Impeachment
- Absolute immunity for official acts within outer perimeter of duties (Nixon v. Fitzgerald)
- No immunity for unofficial acts (Clinton v. Jones)
- Impeachment — high crimes and misdemeanors, House impeaches, Senate convicts by two-thirds
5
Due Process
Procedural Due Process
- Protected interests — liberty and property (entitlements from independent sources)
- Mathews v. Eldridge balancing — private interest, risk of error, government interest
- Notice and opportunity to be heard at a meaningful time and manner
- Goldberg v. Kelly — pre-termination hearing for welfare benefits
Substantive Due Process — Fundamental Rights
- Strict scrutiny — narrowly tailored to compelling government interest
- Fundamental rights — marriage (Obergefell), contraception (Griswold), parental rights (Troxel), bodily autonomy
- Glucksberg test — deeply rooted in history and tradition, implicit in concept of ordered liberty
- Dobbs v. Jackson — abortion not a fundamental right; returned to states
Substantive Due Process — Rational Basis
- Rationally related to a legitimate government interest
- Highly deferential — any conceivable legitimate purpose
- Economic regulations almost always upheld (Williamson v. Lee Optical)
6
Equal Protection
Levels of Scrutiny
- Strict scrutiny — race, national origin, alienage (suspect classes); narrowly tailored to compelling interest
- Intermediate scrutiny — sex, legitimacy (quasi-suspect); substantially related to important interest
- Rational basis — age, disability, wealth, sexual orientation; rationally related to legitimate interest
- Rational basis with bite — Romer v. Evans, Cleburne (animus-based classifications fail)
Race Discrimination
- Facially neutral laws require discriminatory purpose and effect (Washington v. Davis, Village of Arlington Heights)
- Affirmative action — strict scrutiny; SFFA v. Harvard eliminated race-conscious admissions
- Thirteenth Amendment — Congress can address badges and incidents of slavery
Sex Discrimination
- Intermediate scrutiny — exceedingly persuasive justification (United States v. Virginia / VMI)
- Cannot rely on overbroad generalizations about sex (Craig v. Boren)
- Pregnancy discrimination analyzed under rational basis unless sex-based classification
7
First Amendment
Free Speech — Content-Based vs. Content-Neutral
- Content-based restrictions — strict scrutiny (Reed v. Town of Gilbert)
- Content-neutral restrictions — intermediate scrutiny, O'Brien test for symbolic speech
- Public forum doctrine — traditional, designated, nonpublic forums with different standards
- Prior restraints — heavy presumption against constitutionality (Near v. Minnesota)
Unprotected & Low-Value Speech
- Incitement — Brandenburg v. Ohio (imminent lawless action, likely to produce it)
- True threats — Counterman v. Colorado (recklessness standard)
- Obscenity — Miller three-part test (prurient interest, patently offensive, lacks serious value)
- Fighting words — Chaplinsky (direct personal insults likely to provoke immediate violence)
- Commercial speech — Central Hudson intermediate test
Religion Clauses
- Establishment Clause — historical practices and understandings test (Kennedy v. Bremerton, replacing Lemon)
- Free Exercise — Employment Division v. Smith (neutral, generally applicable laws); strict scrutiny for targeted burdens
- Fulton v. Philadelphia — discretionary exemption systems trigger strict scrutiny
- No exclusion of religious entities from generally available public benefits (Trinity Lutheran, Espinoza, Carson)
State Action Doctrine
- Constitution applies only to government actors, not private parties
- Public function exception — exclusive traditional government functions
- Entanglement exception — significant government involvement or encouragement
- Shelley v. Kraemer — judicial enforcement of private discrimination as state action
Outlining Tips for Constitutional Law
Organize by clause/power rather than chronologically — your exam will test you on specific constitutional provisions, not historical timelines
For each doctrine, include the test/framework AND the leading case — Con Law professors expect you to cite cases by name
Create a separate tiers-of-scrutiny chart that you can reference quickly during exams — this is the most frequently tested framework
Track recent Supreme Court developments — Con Law is a living subject and professors love testing new decisions
Map the relationship between Due Process and Equal Protection — they overlap significantly and exams often require both analyses
Include a section on state action as a threshold question — many exam hypotheticals turn on whether constitutional protections apply at all
Recommended Length
50-70 pages
A thorough Constitutional Law outline typically runs 50-70 pages and covers all 7 major sections with key rules, leading cases, and professor-specific notes. Start with this template and expand each section with your class notes, case briefs, and hypotheticals from lecture.