This guide focuses on library and internet resources for researching or studying Constitutional Law for the NextGen bar exam.
You will find suggested secondary sources, print or online study aids, and other subject-specific materials. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Topics in this outline will be tested using tasks from the Foundational Skills outline. Questions may test topics from more than one subject area.
Examinees may expect that some questions will be presented with legal resources. When legal resources are provided within the test, the examinee will be expected to demonstrate their ability to efficiently analyze and apply the legal resources to answer the question or questions.
Within this outline, there are two types of topics:
Topics with a star symbol *
Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol
Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
If a particular topic’s scope is described in this outline, that does not indicate greater importance or testing frequency of the topic.
I. Federal judicial power
A. Justiciability requirements: case or controversy and standing*
This topic includes the elements of standing, the broad prohibitions on citizen and taxpayer standing, and aspects of the “case or controversy” requirement related to claims brought against the government to enforce statutes.
B. Other justiciability doctrines: ripeness, mootness, and advisory opinions*
C. The Eleventh Amendment and state sovereign immunity
This topic includes distinctions between suits against states and suits against local governments, litigation between state and federal governments, claims against government officials, suits for damages and for injunctive relief, state law claims and federal law claims, consent to be sued, and congressional power to abrogate state immunity.
D. Judicial authority to interpret the Constitution and laws
II. Legislative powers
A. Congress’s commerce, taxing, and spending powers*
This topic includes the requirement of a “substantial effect” on interstate commerce, regulation of economic and noneconomic activity, and regulation through spending (conditional grants).
B. Congress’s power to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments
III. Executive powers
A. The president’s power as commander in chief
B. The president’s power to appoint and remove officials
This topic includes the president’s appointment and removal power regarding executive branch officials and Congress’s authority to limit the president’s appointment and removal powers.
C. The powers of federal administrative agencies
This topic includes the roles of administrative agencies as executive enforcers of laws and regulations, as “legislators” with rule-making authority, and as “judges” conducting hearings and issuing decisions.
IV. The relation of nation and states in a federal system
A. Intergovernmental immunities
1. Prohibition on state taxation of federal entities
2. Prohibition on federal commandeering of state legislation and enforcement
B. Federalism-based limits on state authority
1. Supremacy clause and preemption *
This topic includes the presumption against federal preemption and the distinction between express and implied preemption.
2. Dormant commerce clause, including congressional authorization of otherwise invalid state action, and the market participant doctrine.
V. Individual rights
A. State action requirement and the exception for exclusive government functions
B. Substantive due process
1. The right to privacy
This topic includes the right to reject unwanted medical care, the right to educate one’s children, the right to live with whomever one chooses, the right to marriage, the right to contraception, and standards of review.
2. The right to vote
This topic includes voting restrictions (e.g., residency requirements, property ownership, poll taxes, regulations related to party primaries), dilution of the right to vote (the one-person, one-vote principle), racial gerrymandering, and standards of review.
3. The right to travel, including standards of review
4. The right to bear arms, including standards of review
C. Procedural due process, including the constitutional right to process in administrative hearings
This topic includes entitlement to due process, the requirements of notice and the right to be heard, waiver of procedural due process rights, and access to courts (e.g., for indigent plaintiffs). This topic also includes welfare and disability benefits, creditors’ remedies, and civil forfeiture.
D. Equal protection
1. Classifications subject to strict scrutiny*
This topic includes suspect classifications (i.e., race, ethnicity, national origin, and alienage) and classifications affecting fundamental rights.
2. Classifications subject to intermediate scrutiny*
This topic includes quasi-suspect classifications (i.e., gender and nonmarital children).
3. Classifications subject to rational basis review*
This topic includes classifications that are neither suspect nor quasi-suspect, as well as the deference given to the legislature.
E. Takings
This topic includes the meaning of “taking” and “just compensation,” the “public use” limitation, and the distinction between regulatory taking and regulation that is not a taking.
F. Ex post facto laws
This topic includes the two ex post facto clauses (Article I, §§ 9–10) and due process requirements.
G. First Amendment freedoms: the religion clauses
1. The establishment clause *
This topic includes the applicability of this doctrine to the states, religious displays on public property, government discrimination among religions, financial benefits to religious entities (e.g., aid to colleges, hospitals, K-12 schools), tax exemptions, curriculum controls, accommodations for religious students, and religious activities in public schools and at school activities off school property.
2. The free-exercise clause *
This topic includes the applicability of this doctrine to the states, the meaning of “religious belief,” the right not to work on the Sabbath, exemptions from antidiscrimination and other laws, and punishment of religious conduct because it is religious.
H. First Amendment freedoms: the free-speech clause
1. Content-based regulation of protected expression*
This topic includes regulation of expression based on its content and the applicable standards of review.
2. Content-neutral regulation of protected expression and forum designations*
This topic includes regulation of expression that is not based on its content and the applicable standards of review. This topic also includes time, place, and manner restrictions, as well as distinctions among public forums, limited public forums, and nonpublic forums.
3. Regulation of expressive conduct*
This topic includes regulation of conduct that is tantamount to speech, including the use of symbols as expression.
4. Regulation of unprotected expression *
This topic includes regulation of “fighting words,” obscenity, incitement of illegal activity, and defamatory speech.
5. Regulation of commercial speech *
This topic includes regulation of commercial signs and commercial advertising.
6. Regulation of, or impositions upon, public school students and public employees, licenses, or benefits based upon exercise of expressive or associational rights
This topic includes distinctions between speech by government employees pursuant to their official duties and speech by such employees not pursuant to their official duties; government employees’ participation in political campaigns; and issuance of permits.
7. Prior restraint, vagueness, and overbreadth
This topic includes facial invalidity, as-applied invalidity, procedural safeguards, the amount of discretion given to officials, and the sufficiency of the government interest.
I. Freedom of the press
This topic includes the publication of truthful information, press access to court proceedings (including pretrial proceedings, the need to protect children, and protective orders for discovery materials), and press access to prisons to interview prisoners.
J. Freedom of association
This topic includes aspects of freedom of association related to the electoral process (e.g., ballot regulation, party regulation, limits on contributions, limits on expenditures), bar membership, and laws prohibiting or punishing membership in associations