Constitutional Law on the NextGen Bar Exam
Constitutional Law is the subject where strong candidates separate themselves. It's also where average candidates lose the most points through sloppy analysis — usually by picking the wrong tier of scrutiny or skipping standing entirely. The exam rewards methodical issue-spotting more than encyclopedic knowledge.
Standing is the gatekeeper. Before you touch the merits of any constitutional claim, you must address standing — and the exam will try to trick you into skipping it. The Lujan three-part test (injury-in-fact, causation, redressability) sounds simple, but the "injury" prong is where candidates stumble. The injury must be concrete and particularized, not speculative. "I might be harmed someday" doesn't cut it. Organizational standing adds a layer: at least one member must have individual standing. If you forget to run standing before diving into equal protection analysis, you've likely missed the actual issue being tested.
The Fourteenth Amendment is the single most tested constitutional provision on the exam. Equal protection and due process questions follow the same structural pattern: identify what's being classified or what right is at stake, select the tier of scrutiny, apply it. That selection step is where the points live. Race and national origin get strict scrutiny. Sex and legitimacy get intermediate. Everything else — age, disability, wealth, economic regulation — gets rational basis. The exam loves to present a classification that feels unfair (say, age-based) and see if you'll incorrectly apply strict scrutiny because of emotional reaction rather than doctrinal analysis.
The Commerce Clause post-Lopez framework tests whether Congress can regulate: (1) channels of interstate commerce, (2) instrumentalities, or (3) activities with a substantial effect on interstate commerce. The third category is where exam questions live, because it has limits — Lopez drew the line at purely local, non-economic activity. NFIB v. Sebelius reinforced this: the individual mandate couldn't be sustained under the Commerce Clause because it compelled activity rather than regulating existing activity.
First Amendment questions hinge on one distinction above all others: content-based vs. content-neutral. Content-based restrictions get strict scrutiny and almost always fail. Content-neutral restrictions get intermediate scrutiny under O'Brien and usually survive if narrowly tailored to a significant government interest. The public forum doctrine layers on top — traditional public forums (streets, parks) get the strongest protection.
A pattern worth noting: about 40% of Con Law questions on past bar exams were really standing or state action questions disguised as substantive constitutional issues. Check both threshold requirements before you start the merits analysis.
Exam Tips
- Standing first. Always. If you skip standing and go straight to equal protection, you've probably missed the issue the question is actually testing.
- Tier of scrutiny selection is the money move on equal protection questions. Race/national origin = strict. Sex/legitimacy = intermediate. Everything else = rational basis. Don't let emotional facts override the doctrinal classification.
- First Amendment: identify content-based vs. content-neutral before anything else. Content-based = strict scrutiny (almost always fatal). Content-neutral = intermediate scrutiny (usually survives).
- State action requirement catches people: private conduct doesn't trigger constitutional protection, even if it's discriminatory. Look for state involvement, public function, or significant entanglement.
- For due process, split procedural from substantive immediately. Procedural = Mathews v. Eldridge balancing. Substantive = is it a fundamental right? If yes, strict scrutiny. If no, rational basis.
Key Rules to Know
- Lujan standing: concrete injury-in-fact + fairly traceable causation + redressability by favorable decision
- Lopez Commerce Clause: channels, instrumentalities, or activities with substantial effect on interstate commerce
- Strict scrutiny (race, national origin, fundamental rights): compelling interest + narrowly tailored — almost always fatal
- Intermediate scrutiny (sex, legitimacy): substantially related to an important government interest
- NFIB v. Sebelius: Commerce Clause doesn't allow compelling activity — only regulating existing activity
Sample Practice Questions
A federal grand jury investigating allegations of bribery involving senior White House officials issues a subpoena to the President for recorded conversations that took place in the Oval Office. The President asserts executive privilege, claiming that disclosure of the recordings would undermine the confidentiality of presidential communications essential to the functioning of the executive branch. The special prosecutor argues that the recordings contain evidence directly relevant to the criminal investigation. The President further contends that the judiciary lacks authority to review the privilege claim because the dispute is a political question exclusively committed to the executive branch. How should the court rule on the President's assertion of executive privilege?
- The court must sustain the privilege because the confidentiality of presidential communications is an absolute constitutional privilege that cannot be overcome by any judicial process.
- The court must quash the subpoena because the dispute between the President and the special prosecutor is a nonjusticiable political question that the judiciary cannot resolve.
- The court should conduct an in camera inspection of the materials and order disclosure if the demonstrated, specific need for the evidence in the criminal proceeding outweighs the generalized interest in confidentiality of presidential communications.
- The court should order immediate disclosure without any balancing because no privilege applies when the President is under criminal investigation.
Show answer
Correct: The court should conduct an in camera inspection of the materials and order disclosure if the demonstrated, specific need for the evidence in the criminal proceeding outweighs the generalized interest in confidentiality of presidential communications.
This is the correct standard established in United States v. Nixon, 418 U.S. 683 (1974). The Supreme Court held that while a presumptive privilege exists for presidential communications rooted in the separation of powers, this privilege must yield when a specific need for evidence in a pending criminal trial is demonstrated. The Court ordered in camera review to balance the competing interests and concluded that a generalized assertion of confidentiality cannot overcome the fundamental demands of due process of law in the fair administration of criminal justice.
A state enacts a statute requiring all milk sold within its borders to be pasteurized at a facility located within the state, citing concerns about freshness and food safety during long-distance transportation. Several out-of-state dairy producers challenge the statute, arguing it violates the Dormant Commerce Clause. Evidence at trial shows that modern refrigerated transport has eliminated the safety risks associated with shipping pasteurized milk across state lines, and that the statute effectively excludes 80% of out-of-state milk producers who pasteurize at their own facilities. The state argues the law is a legitimate exercise of its police power to protect public health. How should the court rule?
- The statute is unconstitutional because it is facially discriminatory against interstate commerce and fails strict scrutiny.
- The statute is unconstitutional under the Pike balancing test because its burdens on interstate commerce are clearly excessive in relation to its putative local benefits.
- The statute is constitutional because regulating food safety is a traditional exercise of the state's police power that is exempt from Dormant Commerce Clause scrutiny.
- The statute is constitutional under the market participant exception because the state is regulating the conditions under which goods may be sold in its market.
Show answer
Correct: The statute is unconstitutional because it is facially discriminatory against interstate commerce and fails strict scrutiny.
Under the Dormant Commerce Clause, a state law that discriminates against interstate commerce on its face is subject to a virtually per se rule of invalidity and can survive only if the state demonstrates that the law serves a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. See City of Philadelphia v. New Jersey, 437 U.S. 617 (1978); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). In Dean Milk, the Supreme Court struck down a virtually identical requirement that milk sold in the city be pasteurized within five miles of the city center, holding that the ordinance was facially discriminatory and that reasonable nondiscriminatory alternatives (such as inspecting out-of-state facilities) existed. Here, the in-state pasteurization requirement explicitly mandates processing within the state, discriminating on its face against out-of-state producers. Because modern refrigeration eliminates the purported safety justification, and the state could achieve its food safety goals through less discriminatory means such as inspection of out-of-state facilities, the statute fails strict scrutiny.
A state university professor was terminated after publicly criticizing the university's administration. She filed a lawsuit in federal court under 42 U.S.C. § 1983, naming two defendants: (1) the State University itself, seeking monetary damages for the violation of her First Amendment rights, and (2) the University's President in his official capacity, seeking a prospective injunction requiring her reinstatement to her faculty position. The State has not waived its sovereign immunity nor consented to suit in federal court. The defendants move to dismiss on Eleventh Amendment grounds. How should the court rule?
- Dismiss both claims, because the Eleventh Amendment bars all federal court suits against state entities and state officials.
- Dismiss the claim against the State University but allow the claim against the President to proceed.
- Allow both claims to proceed, because Congress abrogated state sovereign immunity when it enacted 42 U.S.C. § 1983.
- Dismiss the claim against the President but allow the claim against the State University, because § 1983 provides a damages remedy only against entities with deep pockets, not against individual officers.
Show answer
Correct: Dismiss the claim against the State University but allow the claim against the President to proceed.
This is correct. The State University is an arm of the state and is entitled to Eleventh Amendment immunity from suits for monetary damages in federal court. See Edelman v. Jordan, 415 U.S. 651 (1974); Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (states and state entities are not 'persons' subject to suit under § 1983 for monetary damages). However, under the Ex parte Young doctrine, 209 U.S. 123 (1908), the suit against the University President in his official capacity seeking prospective injunctive relief (reinstatement) to remedy an ongoing violation of federal constitutional rights is not deemed a suit against the state and thus is not barred by the Eleventh Amendment.
Related Reading
Other Subjects
Practice hundreds more Constitutional Law questions in the app.
Download on the App Store