Constitutional Law. Part one, introduction. Hello, everyone, and welcome to our constitutional law review.

Bar Exam Content

While the area of constitutional law itself is complicated and often arcane and ever-changing, the good news is that you really don't need to know everything there is to know about the Constitution to pass the bar exam. In fact, looking at the most common con law questions on the exam, shows that there's actually a limited number of legal principles that are tested repeatedly. These are federal judicial powers and the three branches of government, federalism, and the boundaries between state and federal authority, due process, privileges and immunities, equal protection, and the First Amendment.

Each of these sections constitutes 15% to 20% of the con law questions on the MBE. Constitutional law used to be the least tested MBE subject on the essay part of the exam, but it has been making a comeback and now is tested relatively equally with other subjects. Unlike evidence, there's no rule number to refer to when trying to figure out whether or how a given principle applies.

Exam Tips

Actual Cases

Part of your job on the exam will be to identify the source of the rule and describe the rule itself. I’ll therefore very often be discussing actual cases when giving examples of the relevant principles. I do this not because you'll need to cite these cases on the exam, in fact, you won't. I do it so you can go to the case directly if you're confused about the principle or the rule. Ideally, it will also help you remember what you need to know.

Pay Attention to Language

A few general points to keep in mind as we go through this review. Constitutional standards often use very specific language to describe how a court will review a case. Something that's called compelling, isn't necessarily the same as something that's important, for example. Where I repeat a rule again and again, you're going to want to memorize the wording of that rule, not just the general idea, because a multiple-choice question will often be testing you about the language of the test itself, rather than what the outcome of the case will be.

Don't Fall for the Misstated Rule

Questions will often be phrased as yes, if a certain thing is true or no, because of the phrasing of a rule. Make sure you're choosing the answer, not only for the correct result, but using the proper justification. A question that calls for a yes or no answer, that is yes, something is constitutional or no, it is not, often there's an answer that looks correct, but it slightly misstates the rule. This is a trick, don't fall for it.

Tiers of Scrutiny

Something else you'll see again and again, throughout our con law review here is the concept of varying levels of scrutiny that a court will use when evaluating a piece of legislation or regulation. This usually takes place in the context of individual rights, but it also appears in our discussion of the commerce clause. Often, when a court decides questions, the outcome of the case will depend on the level of scrutiny the court applies to the law. When reviewing the merits of a constitutional claim, courts provide three levels of review, rational basis, intermediate scrutiny, and strict scrutiny. Like it sounds, these get progressively stricter as you move further up the ladder, and that much more likely that a law will get struck down as unconstitutional.

When you have, for example, a fundamental right, or a traditionally protected zone of speech or a law that draws the classification based on a suspect class, the court will look very closely at these laws and likely strike them down. In general, though, courts don't like overturning legislation. If one of these protected places or categories is not implicated, the court will rely on the judgment of the people and their representatives. You'll find this tiered review all over our con law discussion. If you ever get into trouble remembering a rule that implicates one of these levels of review, consider how important the interest is, and that will likely tell you how much scrutiny the court will lend to its review.

Outline of This Course

Three Branches of Government

In order to understand constitutional law, you'll first need to understand the structure of our government. These are things you learned in your con law class in law school, but also likely in a high school government or civics class. This review will cover the three branches of government and talk about the limits on each of the branches that are expressed or implied in our constitutional structure.

Source of Authority to Act

We'll start with the rules that bind the judicial branch, with a short review on the legislative and executive as well. Whenever you see a question about the judicial power to hear a case, the legislative power to regulate, or the executive power to act, I want your first question to be, from where is this power derived? None of the three branches can operate without permission from the Constitution, either express or implied. Stating the source of that power is likely going to be key to getting these questions correct.

Federalism

After reviewing the structure of the government and the powers of the various branches, we'll move on to how our federal government interacts with the states in a dynamic known as federalism. There are two underlying concepts here. Vertical federalism, that is, how the federal and state governments share power, and horizontal federalism, or how the states co-exist with each other.

Amendments

We'll then move on to the constitutional amendments with a focus on the Bill of Rights, the first 10 amendments to the Constitution, or the most frequently tested amendments, anyway. We'll discuss the due process and equal protection clauses from the Fifth and Fourteenth Amendments, and also the First Amendment.

There's a chance you could get a question about the intricacies of the Twelfth Amendment on how to elect a president, or the Twenty-Third Amendment on electors for the District Columbia, but it's not likely.

If you didn't hear it in your bar review, chances are none of your peers taking the test did either. So don't bother memorizing the entire Constitution and stick, instead, with the review we have here for you today.