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 state legislature enacts a statute requiring all licensed psychologists to undergo mandatory drug testing every six months, with automatic license revocation upon a single positive result and no opportunity for a hearing before or after revocation. Dr. Patel, a licensed psychologist with no history of substance abuse, receives notice that her license has been revoked after a positive test result that she believes was a false positive caused by a prescribed medication. She files a federal lawsuit under 42 U.S.C. § 1983. Which of the following is the strongest constitutional argument Dr. Patel can raise?
- The statute violates substantive due process because mandatory drug testing of psychologists does not serve a compelling governmental interest.
- The statute violates procedural due process because it mandates automatic license revocation without providing any pre-deprivation or post-deprivation hearing.
- The statute violates substantive due process because it is not narrowly tailored to address impairment among psychologists and is therefore arbitrary and irrational.
- The statute violates the Equal Protection Clause because it singles out psychologists for mandatory drug testing while not imposing the same requirement on other licensed professionals.
Show answer
Correct: The statute violates procedural due process because it mandates automatic license revocation without providing any pre-deprivation or post-deprivation hearing.
Under the Due Process Clause of the Fourteenth Amendment, when the government deprives a person of a protected property interest, it must provide adequate procedural safeguards. A professional license is a well-established property interest. See Barry v. Barchi, 443 U.S. 55 (1979) (state horse trainer's license). Applying the three-factor balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976), Dr. Patel has a significant private interest in her livelihood, the risk of erroneous deprivation through false positives is substantial without any hearing, and the government's interest does not justify providing zero opportunity to be heard. Automatic revocation with no hearing either before or after deprivation violates procedural due process.
A state legislature enacts a statute requiring all licensed cosmetologists to complete 300 additional hours of training within six months or lose their licenses, without any provision for individual hearings, waivers, or hardship exceptions. Martina, who has held a cosmetology license for 15 years and cannot afford to take time off work to complete the training, challenges the statute on due process grounds. Which of the following is the strongest argument Martina can raise?
- The statute violates substantive due process because it is not rationally related to a legitimate government interest.
- The statute violates procedural due process because Martina has a protected property interest in her existing license and the statute provides no individualized hearing before deprivation.
- The statute violates substantive due process because the right to practice cosmetology is a fundamental right protected under the Fourteenth Amendment.
- The statute violates the Privileges or Immunities Clause of the Fourteenth Amendment because it interferes with Martina's right to earn a livelihood.
Show answer
Correct: The statute violates procedural due process because Martina has a protected property interest in her existing license and the statute provides no individualized hearing before deprivation.
Under the Due Process Clause of the Fourteenth Amendment, the government may not deprive a person of a protected property interest without adequate procedural safeguards. An existing professional license constitutes a property interest protected by procedural due process. See Barry v. Barchi, 443 U.S. 55 (1979); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Applying the Mathews v. Eldridge, 424 U.S. 319 (1976) balancing test—weighing the private interest, the risk of erroneous deprivation, and the government's interest—the blanket revocation of existing licenses without any opportunity for an individualized hearing or hardship exception raises serious procedural due process concerns. Martina's strongest argument is that the statute strips her of a vested property interest without any process whatsoever.
A state legislature enacts a statute prohibiting any person under the age of 21 from purchasing or possessing a semiautomatic rifle. A 19-year-old resident challenges the law as a violation of the Second Amendment. The state defends the statute by presenting empirical studies showing that 18-to-20-year-olds commit a disproportionate share of gun violence. Under New York State Rifle & Pistol Association, Inc. v. Bruen (2022), which of the following best describes the correct analytical framework the court must apply?
- The court should apply strict scrutiny, requiring the state to demonstrate that the statute is narrowly tailored to serve a compelling governmental interest in reducing gun violence.
- The court should first determine whether the Second Amendment's plain text covers the challenger's proposed course of conduct, and if so, the government must justify the regulation by demonstrating it is consistent with the nation's historical tradition of firearm regulation.
- The court should apply intermediate scrutiny because the regulation does not impose a total ban on firearm possession but merely restricts one category of firearms for a subset of adults.
- The court should uphold the statute under rational basis review because individuals under 21 are not part of 'the people' protected by the Second Amendment.
Show answer
Correct: The court should first determine whether the Second Amendment's plain text covers the challenger's proposed course of conduct, and if so, the government must justify the regulation by demonstrating it is consistent with the nation's historical tradition of firearm regulation.
Correct. This is the two-step framework articulated in Bruen. First, the court asks whether the Second Amendment's plain text covers the individual's conduct. If it does, the Constitution presumptively protects that conduct, and the government must then demonstrate that the regulation 'is consistent with this Nation's historical tradition of firearm regulation.' The state's empirical evidence about gun violence statistics is insufficient standing alone; the state must point to historical analogues—such as Founding-era or Reconstruction-era age-based restrictions on arms. See Bruen, 597 U.S. at 17, 24 (2022).
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