Hey everyone, welcome back for another deep dive.
You know, law school exams in the bar exam can feel kind of
overwhelming at times, especially when you get to those
modern constitutional issues. Yeah, it's like the Constitution
was written in a completely different world, right?
Like no Internet, no smartphones, no social media.
Exactly. So how are we supposed to apply
these like centuries old principles to the world we live
in today? That's exactly what we're going
to be diving into today, folks. It's almost like a CHEAT SHEET
for navigating creating those constitutional landmines.
We'll break down the key concepts, the landmark cases,
and most importantly, how to apply all this to those tricky
hypothetical scenarios that professors and bar examiners
love to throw at you. OK, so let's kick things off
with something that's probably on everybody's mind technology
and privacy. The 4th Amendment says we have a
right to be free from unreasonable searches and
seizures, but what does that even mean in the digital age?
Like what happens when our entire lives are basically
online? It's a great question, and
courts are grappling with this constantly.
The starting point is Katz V United States, which gave us the
reasonable expectation of privacy tests, right?
But technology has moved so much faster than the law, so the
courts have been playing catch up, trying to apply these old
ideas to new situations. Think about United States V
Jones. That was a big one.
It dealt with GPS tracking without a warrant.
Oh yeah, I remember that one. And the court said, hey, this is
a problem. You can't just track people's
movements 24/7 without some kind of legal justification.
It's like Big Brother is watching us everywhere we go.
Exactly. And then you have Carpenter V
United States. This case was about cell site
location data. So like the records your phone
company keeps about where your phone has been, right?
And the court said, hold on, this data is really revealing.
It paints a detailed picture of someone's life and even if it's
in a company's hands, the government still needs a warrant
to get it. OK, so for all of you future
lawyers out there, the big takeaways this digital data
isn't just up for grabs. Right, the 4th Amendment is
still in play, but the analysis is getting more and more
complicated as technology keeps changing.
You have to think about whether the government's actions in
getting that data would be considered a search under the
Constitution. Did the person have a reasonable
expectation of privacy in that information?
Were there any exceptions to the warrant requirement, you know,
things like consent or maybe an emergency situation?
Got it. So the 4th amendment is still
relevant, but the rules of the game are changing.
They are definitely changing. What about data that's collected
by like, private companies? Does the 4th Amendment apply
there? I mean, we're constantly giving
data to companies just by using apps and browsing the web.
Right. And that's where things get a
little tricky because the 4th Amendment generally only applies
to government action, right? But there's this concept called
state action that can sometimes blur the lines.
Remind me about state action. It's basically the idea that
sometimes a private company can act so closely with the
government that they basically become an arm of the state.
So imagine a situation where the FBI asks Twitter to suspend an
account without a warrant because they think that account
is spreading misinformation. That's a situation where the 4th
Amendment might actually apply because you have a private
company acting on behalf of the government.
Interesting. So for exam purposes, we need to
look out for those situations where private companies might be
acting as agents of the government.
Exactly. And this is just scratching the
surface when it comes to technology and privacy.
Think about things like facial recognition technology, border
searches of devices, the Internet of Things.
Oh yeah, there are so many new challenges.
All of these are areas where the law is still developing, and you
can bet they'll be showing up on exams.
Yeah. For sure.
So buckle up, future lawyers, because the Constitution of the
digital age is going to keep us all on our toes.
OK, let's shift gears a bit and talk about another hot topic,
campaign finance. Always a good one.
Campaign finance is like this constant battle between money
and free speech, right? We want to protect political
speech, but we also don't want elections to just become these
auctions where the highest bidder always wins.
So where do we even begin to untangle this mess?
Well, the case that really set the foundation for all of this
is Buckley V Vallejo. OK Buckley V Vallejo.
I remember studying that one it. Gave us the framework for how
the court balances these competing interests of free
speech and fair elections. And the big take away from
Buckley is that there's a crucial distinction between
contribution limits how much money you can give directly to a
candidate, and expenditure limits how much money can be
spent overall. Why is that distinction so
important? It seems like both of those
things would influence an election.
The court applies different levels of scrutiny to each type
of limit. Contribution limits get easier
scrutiny because the court sees them as a way to prevent what's
called quid pro quo corruption quid.
It's like bribery, buying political favors, basically.
And that's a pretty serious concern.
So the government has more leeway to regulate
contributions. OK, that makes sense.
What about expenditure limits then?
Those face a much stricter level of scrutiny because they
directly limit how much political speech can happen and
the court is super protective of free speech, so any attempt to
limit it, even in the context of elections, is going to be looked
at very carefully. So the government can more
easily regulate how much money goes directly to a candidate,
but it's much harder to regulate the total amount spent on a
campaign. Exactly.
And of course, we can't talk about campaign finance without
mentioning the elephant in the room, Citizens United.
Yes, Citizens United VFEC. That case was a total game
changer. I remember that one too.
The court said corporations and unions have the same First
Amendment rights as individuals when it comes to making
independent expenditures on political communication.
Wow. So they can spend unlimited
amounts of money to support or oppose candidates, as long as
they aren't coordinating directly with the campaigns.
So basically, Citizens United opened the door for super pigs.
Right, those political committees that can raise and
spend insane amounts of money. And that raises all sorts of
questions about the influence of wealthy donors on our elections.
Absolutely, but from a purely legal perspective, the key take
away for exam purposes is this. If you see a situation where the
government is trying to limit political spending based on
what's being said, it's almost always going to be subject to
that highest level of strict scrutiny, and the government has
a really high bar to clear if they want to justify that kind
of restriction. OK.
So strict scrutiny for content based restrictions on spending.
What about things like disclosure requirements?
You know, making campaigns reveal who's funding those
political ads. That's another important piece
of the puzzle. Disclosure requirements
generally get a thumbs up from the courts.
Why? They promote transparency and
help voters make informed choices without directly
limiting speech itself. Makes sense.
So if you're prepping for the bar exam, campaign finance is an
area where you need to understand those different
levels of scrutiny, the insurance and outs of Buckley
and the impact of Citizens United.
Absolutely. And don't forget about how all
of these rules apply to the digital world.
Right, like online political ads and social media campaigns.
They're raising all sorts of new questions about how to regulate
money in politics. It's a constantly evolving area
of the law. OK, so we've got technology
changing the game for the 4th Amendment and for campaign
finance as well. It's like the Constitution is
always being put to the test in new and unexpected ways.
All right, let's move on to something a little less
politically charged. How about commercial speech?
All right, commercial speech, advertising, marketing, all the
stuff that fills our inboxes and social media feeds.
But believe it or not, the Constitution has something to
say about this too. So the First Amendment protects
free speech, but how does that apply to companies trying to
sell us stuff? Good question.
You're right that freedom of speech isn't just about
political opinions. It also covers speech that's
related to commerce. But commercial speech doesn't
get quite the same level of protection as political speech.
Why is that? Because the government also has
a legitimate interest in protecting consumers from false
or misleading advertising. So there's this balancing act
that has to. Happen right?
I can see that. And the big test we use to
figure out if a regulation of commercial speech is
constitutional comes from a case called Central Hudson Gas and
Electric Core V Public Service Commission.
Central Hudson. OK, I remember that name.
It's basically a four part test. It's like a check. 1st, the
speech has to be about something that's legal and it can't be
misleading. Second, the government has to
have a really good reason for regulating the speech, a
substantial interest. Third, the regulation actually
has to be effective in achieving that purpose.
OK. And finally, the regulation
can't be overkill. It has to be as narrow as
possible while still getting the job done.
So it's like a sliding scale. The more questionable the
advertising is, the more power the government has to regulate
it. That's a good way to think
about. It So let's say a company is
making false claims about a weight loss supplement that
could actually hurt people. Right.
In that case, the government would have a much easier time
justifying a regulation than if they were trying to restrict
advertising for a new brand of organic coffee socks that are
perfectly harmless. Right, that makes sense.
Yeah, But this whole commercial speech thing gets even more
complicated in the digital age, right?
We're not just talking about billboards and TV commercials
anymore. Exactly.
We're talking about targeted ads, influencers, algorithms
that seem to know us better than we know ourselves.
It's a whole new ball game. It really is.
So how do you even apply these old First Amendment principles
to this constantly evolving digital landscape?
That's the challenge the courts are facing right now.
Think about an influencer on social media making misleading
claims about a product. How do you regulate that?
Or what about those targeted ads that use our personal data in
ways that might be deceptive or even discriminatory?
These are all questions that are being debated right now.
It's. Like the Constitution is trying
to catch up with technology. It is, and it's what makes this
area of law so dynamic and interesting.
But for those of you studying for exams, it means you have to
be ready for anything. Yeah.
You really have to think on your feet.
OK, so we've talked about outright bans on certain types
of advertising. What are some other ways the
government can regulate commercial speech?
Good question. They can require businesses to
make certain disclosures, even if those businesses would rather
not. Like calorie counts on menus,
warning labels on cigarette. Packs exactly.
So they're not banning the product or service, but they're
forcing companies to give consumers more information.
Right. And the key case here is Zodr V
Office of Disciplinary Counsel. The court basically said that as
long as the government is requiring the disclosure of
factual, uncontroversial information, and the purpose is
to prevent consumers from being misled, then it's generally OK.
But if it starts to feel like the government is forcing
businesses to express a certain viewpoint, then that might cross
the line into First Amendment territory.
Got it. So there's a line between
providing useful information to consumers and turning businesses
into mouthpieces for the government, And that line can
get pretty blurry sometimes. Absolutely, especially with all
the complex products and services we have today.
All right. So for exam purposes, remember
as Otterer and think about how it might be applied to a
hypothetical scenario involving compelled disclosures.
Good advice. So to sum it up, commercial
speech gets some First Amendment protection, but not as much as
political speech. We've got the Central Hudson
test for regulations and Zotterer for compelled
disclosures, but both of these are being reinterpreted and
applied in new ways in the digital age.
Got it. All right, let's step into the
Oval Office for a bit now and talk about executive power.
This is where things can get really interesting because when
we talk about presidents pushing the boundaries of their power,
things can get pretty heated. Yeah, the Constitution laid out
a framework, but it seems like every president finds new and
creative ways to test those limits.
It's true. From executive orders to
administrative agencies to claims of national security,
there's this constant tug of war going on.
Absolutely. So how do we make sense of all
this? How do we know when a president
has gone too far? Well, whenever you have a
question about executive power, the case you need to have in
your back pocket is Youngstown sheet and tube Covey Sawyer.
Youngstown. Youngstown, OK, I think I
remember that one. This case gives us a framework
for analyzing presidential actions and figuring turning out
if they're actually within the scope of the president's
constitutional authority. So it's like a road map for
understanding executive power. Exactly.
Remember, President Truman tried to take over the steel mills
during the Korean War. Oh yeah, that's the steel
seizure case, right? Right.
And the Supreme Court said Nope, Not so fast, Mr. President.
They essentially laid out this map of presidential power,
dividing it into 3 zones. 3 zones.
OK, I'm listening. In the first zone, the president
is acting with the approval of Congress, either directly or
indirectly. That's where presidential power
is at its strongest. So if Congress is on board, the
president has a lot more leeway. Right.
What about the other zones? Yeah.
What about those? In the second zone, things get
murkier. Congress hasn't specifically
said yes to what the president is doing, but they haven't said
no either. This is where a lot of those
presidential power struggles play out.
And then you have the third zone where the president is acting
against what Congress wants. And here presidential power is
at its weakest, and the courts are much more likely to step in
and say, hold up, you can't do that.
So it all depends on where the president's actions fall on that
Youngstown map. Right.
And that framework is still being used today to analyze all
sorts of modern presidential actions.
So everything from immigration policy to environmental
regulations to national security decisions are being seen through
the lens of Youngstown. Exactly.
And think about all those news stories we see about executive
orders and arguments about executive privilege.
They're all examples of Youngstown in action.
Wow, so even though this case is from the 1950s, it's still super
relevant today. Absolutely.
The principles in Youngstown are really enduring and they're
still shaping the way we think about the balance of power
between the president and Congress.
OK. So we've got this Youngstown
framework for analyzing presidential power, but let's
zoom in on one specific aspect of executive power that's always
in the news Executive privilege. Yes, the idea that the president
can keep certain conversations confidential, right?
But how far does that privilege actually extend?
Can presidents just use it to avoid answering tough questions
or to cover up things they don't want people to know about?
That's the big question. The idea behind executive
privilege is that the president needs to be able to have frank
and confidential conversations with their advisors without
worrying that those conversations will become
public. It's seen as essential to how
the executive branch functions, but the courts have recognized
that it's not absolute. It has to be balanced against
other important interests, like the need for transparency and
accountability. So a president can't just claim
executive privilege whenever they want.
Right. And when those competing
interests have to be weighed, things can get really
complicated. Speaking of complicated, what
about the state secrets doctrine?
That's where the government can basically withhold information
in court if they say it would harm national security.
Rome. That's exactly right.
It's a powerful tool, sounds like it.
And it can be used in a lot of different cases, from terrorism
prosecutions to lawsuits that are challenging government
surveillance programs. But it's not a blank check for
secrecy. So the government can't just say
state secrets and avoid any kind of scrutiny.
Exactly. The courts have to carefully
balance the need for secrecy with the public's right to know
and the need for open and fair judicial proceedings.
It's like walking a tightrope. It is, and it often involves
really high stakes and some intense legal battles.
OK, so Executive privilege and the State Seekers Doctrine are
both powerful tools, but they both have limits.
And for anyone prepping for exams, it's really important to
understand those limits and how the courts deal with these kinds
of claims. I couldn't agree more.
All right, so how about we head over to what I'd like to call
the Wild West of emerging constitutional issues?
This is where things get really fascinating because we're
talking about how the Constitution is being applied to
these brand new challenges that the framers couldn't have even
imagined. I love it.
Let's go Buckle up, everybody, because we're about to enter
uncharted territory. OK, so we're in the Wild West
now where the Constitution is meeting the 21st century head
on. What are some of the hot button
issues we see in this uncharted territory?
Let's start with something that's constantly evolving
digital rights. We touched on privacy a bit
earlier, but this is about the bigger picture, free speech
online, the power of these huge social media companies and how
much the government can actually regulate all of this.
It's almost like trying to fit the Constitution, which was
written on parchment paper, you know, into a smartphone.
Right. And the key here is that social
media companies, despite their huge influence, are private
entities, right? So they're not directly bound by
the 1st Amendment in the same way that the government is.
So could they theoretically just censor whatever they want?
To a certain extent, yes. But the government can't just
step in and tell these platforms what they can and cannot allow.
It would run into some serious First Amendment problems.
This is tricky Gray area. It is.
So what are some of the arguments that are being made to
navigate this digital Wild West? Yeah.
What are some of the legal tools that are being used?
One approach is to look for those state action situations
that we talked about earlier. If the government is pressuring
social media companies to remove certain types of content, that
might trigger First Amendment scrutiny.
So it's like the government can't do indirectly what it
can't do directly. They can't just order a company
to censor someone on their behalf.
Exactly. There are also arguments that
these platforms are so important for public discourse, the modern
day public square, that they should be treated like public
forums, and that would mean they'd be subject to much
stricter First Amendment rules limiting their ability to
restrict speech. It's amazing how these old First
Amendment principles are being stretched and adapted to this
whole new world. So for exam purposes, we need to
be thinking about the public forum, doctrine, state action
and how they apply to online platforms.
Absolutely. And don't forget about the 14th
Amendment and the Doorman Commerce Clause, right?
Those can also come into play when you're dealing with things
like content moderation and data privacy.
OK, so digital rights are a hotbed of constitutional
activity. What's another area where we're
seeing the Constitution trying to deal with modern day
challenges? How about environmental
regulation? This is where things get really
heated between federal power and states rights, especially when
we talk about climate change. Yeah, I can see how that would
be a big one. Climate change is a global
issue, so the government wants to regulate it.
But where does it even get that power?
The main tool that the federal government uses for
Environmental Protection is the commerce.
Clause. The Commerce Clause.
The idea is that pollution crosses state lines, impacting
Interstate commerce, and that gives Congress the power to step
in. So it's not actually about the
environment itself, it's about how it affects commerce.
Right. But it's definitely not that
simple. There are limits to how far the
Commerce Clause can go, and the Supreme Court has been pretty
clear about that. Can you give me an example of
that push back? Think about Massachusetts V EPA.
Massachusetts V EPA. The court said that the EPA
could regulate greenhouse gases under the Clean Air Act because
they are pollutants. But then you have cases like
West Virginia VEPA. OK, West Virginia VEPA.
This one really shows the limits of federal power.
In that case, the court said the EPA overstepped its bounds when
it tried to regulate greenhouse gas emissions from power plants.
Interesting. The court said Congress hadn't
given the agency specific enough instructions to do that.
They called this the major questions doctrine.
For really big important issues, agencies need a clear mandate
from Congress. So it's a constant tug of war
over how much power the federal government actually has.
And the courts are kind of like the referees in all of this.
That's a good analogy. What other legal issues come up
in this area? Keep an eye out for things like
standing, standing. You know who has the right to
sue over environmental harm, right?
There are also procedural questions about what kind of
scientific evidence is needed to justify those regulations.
And of course, there's always that ongoing debate about the
role of cost benefit analysis. Right.
It sounds like this is where science and law and politics all
crash together. They do, and for exam purposes
you need to be prepared to analyze how those different
worlds intersect. Think about cases like West
Virginia VEPA and how that major questions doctrine is being
used. Also pay attention to those
different arguments about the Commerce Clause and the limits
of federal power. OK.
So we've got digital rights and we've got environmental
regulation. Yeah.
What about those fundamental rights that we always talk about
in constitutional law? Are those being challenged in
new ways as well? Absolutely.
Think about healthcare rights. Healthcare Rights.
This is where things get really personal and sometimes
controversial, especially when you bring in the Affordable Care
Act and those big debates about what role the government should
play in healthcare. Oh yeah, the ACA always a hot
topic. Yeah.
What are some of the constitutional issues that come
up in this area? Well, the ACA itself has been
challenged in court more times than you can count.
Wow. Remember NFIBV Sibelius?
NFIBV Sibelius. That was the case where the
Supreme Court upheld the individual mandate.
Oh yeah, the requirement that most people have health
insurance. Exactly.
It was a huge case. How did the court justify that
decision? Yeah.
How did they do that? It all came down to the question
of what power Congress was using.
The court said that Congress couldn't force people to buy
health insurance under the Commerce Clause, but they could
use their taxing power to essentially penalize people for
not having insurance. So it wasn't about whether
Congress could regulate it, it was about how they were trying
to do. It exactly.
And beyond the ACA itself, there are a ton of constitutional
questions about the government's power to regulate healthcare,
everything from reproductive rights to end of life care.
And this is where the 14th Amendment and the idea of
substantive due process come in. Right.
It's the idea that there are certain fundamental rights, even
if they aren't explicitly listed in the Constitution, that the
government can't infringe on. Substantive due process is a
powerful idea, but it's also really controversial.
And the case that really shook things up here is Dobbs V
Jackson Women's Health Organization.
Yeah. Dobbs was a game changer.
It overturned Roe V Wade and really sent shockwaves through
the legal world. Yeah, but it wasn't just about
abortion, right? Absolutely.
The Court's reasoning in Dobbs, particularly that focus on
whether a right is deeply rooted in this nation's history and
tradition, could have a huge impact on other rights that are
based on substantive due process, like the right to
contraception or same sex marriage.
So it's like the court is raising the bar for what counts
as a fundamental right. That's one way to look at it,
and it's definitely something law students need to be paying
attention to. It could have a ripple effect on
lots of areas of constitutional law.
What are some other examples of how healthcare rights are
playing out in the courts today? Well, there are ongoing battles
over the scope of the Religious Freedom Restoration Act, RFRA,
and how it applies to healthcare.
We've seen cases where businesses have said they have a
religious objection to providing contraceptive coverage to their
employees. Right.
So it's a conflict between religious freedom and the right
to access healthcare. How do the courts handle those
situations? It's a really delicate balancing
act. There are strong arguments on
both sides. The courts have to weigh the
sincerity of the religious belief against the harm that
might be caused by denying someone healthcare.
It's a really complex area of the law.
Sounds like it. So yeah, healthcare rights are
going to be a major battleground for constitutional law in the
years to come. We're seeing clashes over
federal power, the meaning of fundamental rights and religious
freedom. It's a lot to keep up with.
It is, but understanding those key cases, the constitutional
principles, and the different arguments that are being made
will definitely help you analyze those healthcare rights
scenarios that you'll see on exams.
For sure. OK, So we've covered a lot of
ground today. We've explored digital rights,
navigated environmental regulation and jumped into those
really heated debates about health care rights.
It's clear that the Constitution is always being tested in light
of all these new challenges. It is.
It's amazing to see how this document, written centuries ago
is still relevant and can be applied to all these cutting
edge issues. It truly is a living document,
always evolving. It is.
And one of the biggest things shaping constitutional law right
now is definitely technology. We talked about privacy and
digital rights, but it goes even deeper than that.
Technology is changing how we communicate, how we get
information, and even how we think about our rights as
citizens. It's like technology is making
us rethink what the Constitution even means.
Exactly. Think about the 1st amendment
and free speech. It was written when people
mainly communicated through pamphlets and town hall
meetings, but now we have social media with billions of users,
algorithms controlling what we see, and the potential for
misinformation to spread incredibly fast.
It's a whole different ball game.
And it seems like the courts are having a hard time keeping up.
They are. They're trying to apply these
old rules to these brand new situations and it's not easy.
So many answered questions. Right, like how do you balance
free speech with preventing harmful content online?
What role should the government have in regulating social media?
These are questions that are going to be debated for years to
come. So anyone studying for exams,
this is where you really have to think critically and use your
imagination. Don't just memorize the old
rules, think about how they might apply in these new
situations. Absolutely.
And technology isn't the only force reshaping constitutional
law. We've also got the rise of the
administrative state. We talked about this a bit
earlier with executive power, but let's dive a little deeper.
Administrative agencies have become so powerful, haven't
they? They have.
They're making rules and regulations that affect pretty
much every aspect of our lives. And the courts are having to
figure out how to make sure those agencies stay within their
limits, right? We talked about the Youngstown
framework and those different zones of presidential power, but
a lot of the action is actually happening within those agencies
themselves where they're interpreting laws and putting
those policies into practice. And that raises some big
questions about who's really accountable and the balance of
power in our government. Exactly who gets to decide what
a law actually means? How much deference should courts
give to those agencies interpretations?
These are some of the biggest questions in constitutional law
right now. Take a whole new layer of
complexity on top of our government.
It is, and it's something law students really need to
understand. The traditional ideas about
separation of powers are still important, but they're being
applied in these new ways to deal with the challenges of this
modern administrative state. So we have technology and this
huge administrative state. What else should we be watching
out for? We definitely can't ignore the
trend toward originalism and that emphasis on history and
tradition and how we interpret the Constitution.
Like we saw in Dobbs where the court said there was no right to
abortion because it wasn't rooted in history.
Exactly this approach to interpreting the Constitution is
gaining ground among judges and legal scholars.
So history is back in style. It is, and it's something every
law student needs to know about. These debates about interpreting
the Constitution have been going on forever, and the role of
history and tradition is a key part of that.
OK. So we've got technology, the
administrative state, and this focus on history.
It's a lot. Any advice for those of us who
are feeling a little overwhelmed by all of this?
First of all, don't panic. Constitutional law is complex,
but it's also super fascinating. The best way to approach it is
to break it down into smaller pieces.
Focus on understanding those key concepts, the big cases and the
different arguments that are being made.
And don't forget to practice applying all of that to real
world problems. That's the best way to get ready
for exams and for your career as a lawyer.
Absolutely. Constitutional law is not just
some theory, it has real consequences that impact
people's lives. It's easy to get lost in all the
legal stuff, but at the end of the day we're dealing with
things that really affect people and communities.
Right. And as future lawyers, you have
a responsibility to use your knowledge of constitutional law
to fight for justice and fairness.
Whether you're working in government, in a law firm or at
a nonprofit, you can make a difference by protecting
people's rights and making sure the Constitution is being
followed. That's an inspiring way to think
about it. It is So constitutional law is a
dynamic and challenging field that's always changing.
To succeed, you need to be adaptable, think critically, and
be aware of what's shaping the law.
And don't forget to stay curious.
Constitutional law is full of surprises, and the more you
learn, the more interesting it gets.
Absolutely. Well, everyone, we've reached
the end of our deep dive into modern constitutional issues.
I hope you learned something new today and you feel a little more
ready to tackle those exam questions.
And remember, this is just the start of your journey into
constitutional law. There's always more to discover.
That's right. So keep studying, keep asking
questions, and keep fighting to make a difference.
The future of constitutional law is in your hands.
And on that note, we'll sign off for now.
Until next time, keep diving deep, yeah?