What to Expect
Constitutional Law cold calls are among the most intense in law school because the material is inherently political and professors love to push students toward uncomfortable positions. Expect your professor to start with a simple factual question about the case—'What happened in Marbury v. Madison?'—and then rapidly escalate to doctrinal analysis. You will be asked to articulate multi-part tests (strict scrutiny, intermediate scrutiny, rational basis) and apply them to hypothetical facts on the spot.
Professors in Con Law are especially fond of the 'slippery slope' technique: they will take your answer and push it to its logical extreme to see if you can identify where the principle breaks down. If you say the Commerce Clause allows Congress to regulate activity that substantially affects interstate commerce, expect the follow-up: 'Can Congress require you to eat broccoli?' You need to be ready to draw principled lines.
The key to surviving Con Law cold calls is understanding that professors are testing whether you can think in frameworks, not whether you have memorized outcomes. Every answer should reference the applicable standard of review, identify whose rights are at stake, and acknowledge the competing governmental interest.
Common Question Types
Standard of Review Identification
“What level of scrutiny applies when a state law discriminates based on gender?”
Identify intermediate scrutiny. State the test: the classification must be substantially related to an important governmental interest. Cite Craig v. Boren as the foundational case and note that the burden falls on the government to justify the classification.
Hypothetical Modification
“What if the law in Griswold applied only to unmarried couples—would the result change?”
Acknowledge the factual change and trace its doctrinal implications. Note that Eisenstadt v. Baird actually addressed this extension. Discuss whether the privacy rationale applies equally regardless of marital status, and identify the equal protection angle that Eisenstadt introduced.
Distinguishing Cases
“How is the state action in Shelley v. Kraemer different from the state action in the Civil Rights Cases?”
Focus on the specific government involvement. In Shelley, judicial enforcement of private covenants constituted state action. In the Civil Rights Cases, the Court found no state action because the discrimination was purely private. Articulate the principle: the Fourteenth Amendment restricts government conduct, and the question is always where to draw the line of government participation.
Policy Justification Challenge
“Why should unelected judges have the power to override democratic legislation?”
This is a classic counter-majoritarian difficulty question. Reference Marbury's establishment of judicial review, the Federalist Papers (especially No. 78), and the structural argument that constitutional rights exist precisely to constrain majority rule. Acknowledge the tension honestly—this is a question without a clean answer.
Doctrinal Evolution
“How did the Court's understanding of substantive due process change from Lochner to Griswold?”
Trace the arc: Lochner used substantive due process to protect economic liberty and was eventually discredited. The Court then shifted to protecting 'fundamental rights' relating to privacy, family, and personal autonomy. Explain that the methodology (judicial identification of unenumerated rights) remained controversial even as the specific rights recognized changed.
Applying a Multi-Factor Test
“Walk me through the Central Hudson test. Does a city ban on billboard advertising for legal cannabis survive?”
Lay out all four prongs systematically: (1) the speech concerns lawful activity and is not misleading, (2) the government interest is substantial, (3) the regulation directly advances that interest, and (4) the regulation is no more extensive than necessary. Apply each prong to the hypothetical, acknowledging where the analysis is close.
Textual Interpretation
“Where in the text of the Constitution do you find the right to privacy?”
Acknowledge it is not explicitly stated. Reference the penumbras theory from Griswold (emanations from the First, Third, Fourth, Fifth, and Ninth Amendments). Also discuss the Ninth Amendment's reservation of unenumerated rights and the liberty interest in the Due Process Clause of the Fourteenth Amendment. Note the ongoing debate between originalists and living constitutionalists on this point.
Counterargument Demand
“You just argued for strict scrutiny. Now argue the other side—why should rational basis apply here?”
Shift perspective without hesitation. Argue that the classification does not target a suspect class, that the legislature is better positioned to make this policy judgment, and that courts should defer to democratic processes absent a clear constitutional violation. Show you can advocate both sides credibly.
Preparation Strategy
For Constitutional Law, your preparation should center on building a mental flowchart for each major doctrine. When you read a case, do not just learn the holding—learn the framework the Court applied to reach it. For every Equal Protection case, ask yourself: What is the classification? What level of scrutiny applies? What is the government's interest? Is there a sufficient fit? This systematic approach will serve you far better than memorizing facts.
Create a one-page cheat sheet for each major topic area (First Amendment, Equal Protection, Due Process, Commerce Clause, Separation of Powers) that lists the key tests and their elements. Before class, identify which framework applies to the assigned cases and practice articulating each element out loud. Cold calls reward verbal fluency—knowing the answer in your head is not the same as being able to state it clearly under pressure.
Finally, read the case notes and questions after each case in your casebook. Professors frequently draw their cold call questions directly from these. Pay special attention to hypotheticals that modify the facts of the assigned case, as these are the most common follow-up questions.
Do's & Don'ts
Do's
- State the applicable standard of review before diving into analysis
- Acknowledge competing interests—constitutional law is about balancing
- Use case names to anchor your arguments even if you are not certain of every detail
- Distinguish between holdings and dicta when discussing precedent
- Admit when a question raises a genuinely difficult constitutional tension
- Practice saying multi-part tests out loud before class
Don'ts
- Don't state your personal political opinion as legal analysis
- Don't say 'I think it's unconstitutional' without specifying which clause and which test
- Don't confuse the Due Process Clause with the Equal Protection Clause—they do different work
- Don't panic when the professor pushes your argument to extremes—that's the point
- Don't forget that constitutional rights generally apply against government actors, not private parties
Panic Protocol
When you get caught off guard, follow these steps to recover gracefully.
Buy time by restating the question: 'So the issue is whether this classification triggers strict scrutiny under the Equal Protection Clause.'
Default to framework: state the applicable test and work through it step by step, even if you are unsure of the conclusion.
If you genuinely don't know, say: 'I'm not certain of the holding, but the framework I'd apply is...' and walk through the analysis.
Pivot to what you do know: 'I'm not sure about that specific case, but the general principle from [related case] is...'
Ask for clarification if the hypothetical is ambiguous: 'Are we assuming this is a federal or state regulation? That affects the applicable constitutional provision.'
Sample Exchange
A realistic professor-student dialogue to help you see how cold calls unfold in Constitutional Law.
Professor
Tell me about United States v. Lopez. What happened and why does it matter?
Student
In Lopez, a high school student was charged under the Gun-Free School Zones Act for bringing a firearm to school. The Supreme Court struck down the statute, holding that carrying a gun near a school is not an economic activity that substantially affects interstate commerce. It was the first time in nearly sixty years that the Court invalidated a federal statute as exceeding Congress's Commerce Clause power.
Professor
So the Commerce Clause only reaches economic activity. Is that what the Court said?
Student
The Court identified three categories of activity Congress can regulate under the Commerce Clause: the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that have a substantial relation to interstate commerce. For the third category, the Court emphasized that the activity being regulated must be economic in nature, and mere possession of a gun in a school zone did not qualify.
Professor
What about Wickard v. Filburn? Roscoe Filburn was just growing wheat on his own farm. How is that economic but carrying a gun is not?
Student
In Wickard, the Court reasoned that even home-consumed wheat, in the aggregate, had a substantial effect on the interstate wheat market because it reduced demand. The activity—growing wheat—was inherently economic. The distinction in Lopez is that possessing a firearm near a school has no plausible connection to commercial or economic activity, even when aggregated.
Professor
But couldn't you argue that gun violence near schools affects the economy? Students learn less, the workforce suffers, productivity declines?
Student
That was actually the government's argument, and the Court rejected it because accepting that chain of reasoning would mean there is no principled limit on federal power. If costs-of-crime reasoning suffices, then Congress could regulate any activity that leads to violence, which leads to economic effects. The Court said this would obliterate the distinction between what is truly national and what is truly local.
Professor
Good. Now, does Gonzales v. Raich overrule Lopez?
Student
No, but there is real tension. In Raich, the Court upheld federal regulation of homegrown marijuana for personal medical use, even where state law permitted it. The distinction is that Raich involved a comprehensive regulatory scheme—the Controlled Substances Act—and the Court applied the Necessary and Proper Clause analysis from McCulloch, reasoning that Congress could regulate even non-economic activity if it was an essential part of a larger regulatory framework. Lopez did not involve such a comprehensive scheme.
Professor
So can Congress regulate anything as long as it passes a comprehensive enough statute?
Student
That is the concern critics raised after Raich. However, the limiting principle is that the regulatory scheme must target an area where Congress has legitimate Commerce Clause authority, and the specific regulation must be a necessary part of that broader scheme. Whether that limit is meaningful in practice is debatable—Justice Thomas argued in dissent that Raich effectively returned to pre-Lopez reasoning.