Constitutional Law Final Exam Attack Checklist
Comprehensive final exam checklist covering judicial review, federalism, separation of powers, individual rights, and equal protection analysis.
Pre-Exam Preparation
- Review all three tiers of scrutiny and which classifications trigger each (strict for race/national origin/fundamental rights, intermediate for gender/illegitimacy, rational basis as default)
- Outline the state action doctrine and its exceptions (public function, entanglement, encouragement)
- Create a flowchart for dormant Commerce Clause analysis: discrimination vs. burden balancing under Pike v. Bruce Church
- Memorize the Youngstown framework for executive power (three zones: congressional authorization, congressional silence, congressional opposition)
- Review First Amendment frameworks: content-based vs. content-neutral, prior restraint doctrine, unprotected categories (obscenity, fighting words, true threats, incitement)
- Map out the substantive due process framework: fundamental rights (strict scrutiny) vs. non-fundamental rights (rational basis), and the Glucksberg test for identifying unenumerated rights
Issue-Spotting Checklist
- Check for standing: injury in fact, causation, and redressability — particularly when the plaintiff is a taxpayer or organization
- Identify whether the question involves federal or state action, and whether the state action doctrine is satisfied
- Look for Commerce Clause issues whenever Congress regulates activity — apply the Lopez three-category framework
- Check for Tenth Amendment anti-commandeering problems when the federal government directs state officials
- Spot equal protection issues: identify the classification, determine the tier of scrutiny, and analyze fit
- Identify substantive due process claims: is a fundamental right at stake, and does the government action infringe upon it?
- Check for procedural due process: is there a liberty or property interest, and was adequate process provided (Mathews v. Eldridge balancing)?
- Look for First Amendment issues in any regulation that affects speech, assembly, religion, or press
- Identify Supremacy Clause preemption issues: express preemption, field preemption, or conflict preemption
- Check for separation of powers issues whenever one branch exercises power typically belonging to another
Common Essay Structure (IRAC)
- Issue: Identify the specific constitutional question (e.g., 'Whether Congress exceeded its Commerce Clause power by enacting this statute')
- Rule: State the governing constitutional test or framework with the controlling case (e.g., 'Under Lopez, Congress may regulate three categories of activity...')
- Application: Apply each element of the test to the specific facts, arguing both sides where possible — acknowledge the strongest counterargument
- Sub-issues: Address any subsidiary constitutional questions (e.g., if Commerce Clause fails, check Spending Clause or Necessary and Proper Clause)
- Balancing: For individual rights questions, apply the appropriate tier of scrutiny and analyze whether the government meets its burden
- Conclusion: State your conclusion clearly, acknowledging the strength of the opposing argument where the issue is close
Key Rules to Memorize
- Strict scrutiny: law must be narrowly tailored to serve a compelling government interest (race, national origin, fundamental rights)
- Intermediate scrutiny: law must be substantially related to an important government interest (gender, illegitimacy)
- Rational basis: law must be rationally related to a legitimate government interest (economic/social legislation)
- Commerce Clause (Lopez): Congress can regulate (1) channels of interstate commerce, (2) instrumentalities or persons/things in interstate commerce, (3) activities with a substantial effect on interstate commerce
- Necessary and Proper Clause (McCulloch v. Maryland): Congress may enact laws that are rationally related to a constitutionally enumerated power
- Standing (Lujan v. Defenders of Wildlife): injury in fact, causation, and redressability — each must be satisfied
- State action doctrine: the Fourteenth Amendment only constrains government actors, not private parties, unless an exception applies
- Dormant Commerce Clause: states may not discriminate against or unduly burden interstate commerce; discriminatory laws are virtually per se invalid
- Free exercise (Employment Division v. Smith): neutral, generally applicable laws that incidentally burden religion receive rational basis review
- Establishment Clause: government may not endorse, coerce, or excessively entangle with religion
- Procedural due process (Mathews v. Eldridge): balance private interest, risk of erroneous deprivation, and government's interest to determine what process is due
- Takings Clause: physical appropriation is a per se taking; regulatory takings analyzed under Penn Central (economic impact, investment-backed expectations, character of government action)
Last-Minute Tips
- When in doubt about which tier of scrutiny applies, state the competing arguments for each tier and analyze under both
- Always check for both facial and as-applied challenges — a statute may survive one but fail the other
- Don't forget the political question doctrine: some constitutional disputes are nonjusticiable (e.g., impeachment procedures, Guarantee Clause claims)
- For First Amendment questions, start by classifying the forum (traditional public, designated public, limited public, or nonpublic) before analyzing the regulation
- Remember that Congress cannot use the Commerce Clause to compel activity — the individual mandate principle from NFIB v. Sebelius
Time Management
- Spend the first 5-10 minutes reading the full exam and outlining your answer before writing — constitutional law essays often have layered issues that build on each other
- Allocate time proportionally to point values; do not spend 50% of your time on a 25% question
- If stuck on the tier of scrutiny, pick one, analyze it, then briefly note the alternative outcome — professors reward issue-spotting over getting the 'right' answer
- Save 5 minutes at the end to review your answer for any missed issues — constitutional law hypos often contain embedded standing or state action problems that are easy to overlook