Constitutional Law: From Marbury to Modern Doctrine (2026)
A comprehensive masterclass on power, interpretation, and judicial doctrine for the modern law student.
1. The "Con Law" Mindset
"Constitutional Law isn't about memorizing rules; it's about mapping the exercise of power and the boundaries of interpretation."
Unlike Torts or Contracts, Con Law doesn't always have a "black letter" answer. It is a dialogue between the past and the present. You must learn to argue not just what the law is, but how the Constitution breathes as a living document.
2. The Framework of Analysis (The Map)
Separation of Powers
Horizontal Power: The friction between the Executive, Legislative, and Judicial branches. Focus on Art. I, II, and III.
Federalism
Vertical Power: The 10th Amendment vs. The Supremacy Clause. When does federal law "preempt" state law?
Individual Rights
The 14th Amendment: The "bridge" that incorporates the Bill of Rights to apply against the States.
3. The "Holy Grail" Table: Levels of Scrutiny
Exam Favorite| Level of Scrutiny | Government Must Prove | Plaintiff Must Prove | Key Buzzwords |
|---|---|---|---|
| Rational Basis | Law is rationally related to a legitimate government interest. | Law is arbitrary or irrational (Burden on Plaintiff). | #Rationallyrelated#Legitimate#Conceivablebasis |
| Intermediate Scrutiny | Law is substantially related to an important government interest. | Government must show an 'exceedingly persuasive justification' (Gender/Illegitimacy). | #Substantiallyrelated#Important#Exceedinglypersuasive |
| Strict Scrutiny | Law is narrowly tailored to achieve a compelling government interest using the least restrictive means. | Presumptively unconstitutional (Burden on Government). | #Narrowlytailored#Compelling#Leastrestrictivemeans |
"Doctrine at a Glance" Cards
Quick reference cards for the most tested doctrines. Screenshot these for your outlines.
Law must have a secular purpose, neither advance nor inhibit religion, and avoid excessive government entanglement.
Plaintiff must show Injury-in-fact, Causation, and Redressability to bring a case in federal court.
States cannot pass laws that unduly burden or discriminate against interstate commerce.
Law must be narrowly tailored to achieve a compelling government interest using the least restrictive means.
4. Landmark Case Library (The "Big 5")
Marbury v. Madison (1803)
Established the principle of Judicial Review—the Supreme Court has the final authority to say what the law is.
McCulloch v. Maryland (1819)
Expanded federal power via the Necessary and Proper Clause; established that federal law is supreme over state law.
Gibbons v. Ogden (1824)
Defined 'Commerce' broadly to include navigation, establishing federal dominance in regulating interstate commercial activity.
Wickard v. Filburn (1942)
The 'Aggregation' doctrine: even local, non-commercial activity can be regulated if it has a substantial effect on interstate commerce in the aggregate.
Brown v. Board of Ed. (1954)
Held that 'separate but equal' facilities are inherently unequal, overturning Plessy and ending de jure segregation.
5. The "Commerce Clause" Flowchart
The Lopez Test: Logical Steps
Channels of Interstate Commerce
Does it regulate highways, waterways, or air traffic? (e.g., Heart of Atlanta Motel)
Instrumentalities of Interstate Commerce
Does it regulate people or things moving in commerce? (e.g., Shreveport Rate cases)
Substantial Effect on Interstate Commerce
If economic, aggregate the effect (Wickard). If non-economic, it's a high bar (Lopez, Morrison).
6. Exam Strategy: How to Attack a Con Law Essay
Identify the Actor
Is it a Federal actor or a State actor? If State, check for preemption (Federalism). If Federal, check for a specific enumerated power.
Find the Power Source
Does the actor have the Authority? (Article I, II, or III for Federal; 10th Amendment/Police Power for States).
Check for the Limitation
Even if power exists, does it violate Individual Rights? (Due Process, Equal Protection, 1st Amendment).
7. Study Resources
Con Law is notoriously dense. To survive, you need the right tools:
Chemerinsky's Constitutional Law: Principles and Policies
The "Bible" of Con Law. Use it to understand the narrative of the Court's history.
LawZee Issue Spotters
Practice applying the Scrutiny tests with our interactive scenarios below.
Check Your Knowledge: Issue Spotter
"Congress passes the 'Sustainable Headwear Act,' which bans the sale, manufacture, or transportation of purple hats in the United States, citing a study that the dye used in purple fabric is a 'significant contributor' to interstate landfill congestion. A local hat shop owner in Ohio sues. Is the law a valid exercise of federal power?"
