Constitutional Law Outline: Attack Outline, Key Cases, and How the Bar Exam Tests It Differently from 1L

How to use this outline

This page is the map. Each heading below links to a full module on the same subject with rules, traps and practice questions. Read the map first, then use the modules for the areas where you miss questions. Law students can use the same structure for a course outline, then add the cases their professor assigned.

Step 1: can the court decide it? (justiciability)

Standing needs an injury in fact, causation and redressability. The plaintiff generally cannot assert another person's rights, with narrow exceptions. Ripeness asks whether the harm is concrete enough now, mootness asks whether the dispute has ended, and the political question doctrine keeps courts out of questions committed to another branch. Sovereign immunity under the Eleventh Amendment bars most federal suits against a state for damages, with exceptions such as suits for prospective relief against a state officer (Ex parte Young).

Anchor cases: Lujan v. Defenders of Wildlife (standing), Baker v. Carr (political questions), Ex parte Young (officer suits).

Trap: a question that looks like a rights problem often fails at standing, so check that first.

Step 2: whose power is it? (federal power and federalism)

Congress needs an enumerated power. The Commerce Clause reaches channels, instrumentalities and activities that substantially affect interstate commerce, and economic activity can be aggregated. The taxing and spending powers are broad, subject to conditions on grants that must be unambiguous, related to the program and not coercive. The Tenth Amendment bars Congress from commandeering state legislatures or officers. Preemption follows from the Supremacy Clause. The dormant commerce clause limits discriminatory or unduly burdensome state laws when Congress has not acted, and the market participant and congressional-consent exceptions apply.

Anchor cases: McCulloch v. Maryland (necessary and proper), Wickard v. Filburn (aggregation), United States v. Lopez and United States v. Morrison (limits), NFIB v. Sebelius (taxing power and coercion), Printz v. United States (commandeering).

Step 3: separation of powers

The President's power is at its highest when acting with Congress's authorization and at its lowest when acting against it (Youngstown). Congress may not retain a legislative veto (INS v. Chadha), and the President has no line-item veto. Appointments and removal follow the Appointments Clause and the removal cases. The Speech or Debate Clause protects legislators' legislative acts.

Step 4: which right, and how much scrutiny?

State action comes first: the Constitution restrains government, not private actors, unless the private party performs a public function or the government is entangled in the conduct. Then decide what is burdened. Fundamental rights and suspect classifications get strict scrutiny (the government must show a compelling interest and that the law is necessary). Intermediate scrutiny applies to sex-based and nonmarital-status classifications (important interest, substantially related). Everything else gets rational basis, which nearly always upholds the law.

Procedural due process asks whether there is a protected life, liberty or property interest and what process is due, balanced by Mathews v. Eldridge. Substantive due process protects rights that are deeply rooted in history and tradition; Dobbs v. Jackson Women's Health Organization (2022) overruled Roe and Casey, so abortion regulation is reviewed for rational basis. Incorporation applies most Bill of Rights guarantees to the states through the Fourteenth Amendment.

Equal protection in one pass

Ask what the classification is, whether it is facially discriminatory or facially neutral, and if neutral, whether the challenger can prove discriminatory purpose (Washington v. Davis). Race gets strict scrutiny even when the purpose is benign, and the Court held in Students for Fair Admissions v. Harvard (2023) that race-conscious admissions programs at the schools before it failed that test. Sex gets intermediate scrutiny (Craig v. Boren and United States v. Virginia). Alienage gets strict scrutiny for state laws with an exception for functions central to self-government.

First Amendment

Start by deciding whether the speech is protected. Incitement (Brandenburg v. Ohio), true threats, obscenity, fighting words and defamation have their own tests, and defamation of a public official needs actual malice (New York Times v. Sullivan). For protected speech, a content-based law gets strict scrutiny, while content-neutral time, place and manner rules must be narrowly tailored to an important interest and leave open alternative channels. Prior restraints are presumed invalid. Public forum analysis sets how much the government may limit speech on its property, and government speech is not restricted by the Free Speech Clause.

Religion: the Free Exercise Clause does not excuse a religious person from a neutral law of general applicability (Employment Division v. Smith), but laws that are not neutral or generally applicable face strict scrutiny. For the Establishment Clause, the Court in Kennedy v. Bremerton School District (2022) said to look to historical practices and understandings rather than the old Lemon test.

Takings, contracts and the right to bear arms

A regulation that takes all economically beneficial use is a per se taking (Lucas), and other regulatory takings are weighed under Penn Central. A taking needs a public use and just compensation. The Contract Clause restricts state impairment of existing contracts, with heightened review when the state is a party. The Second Amendment protects an individual right (District of Columbia v. Heller, applied to the states in McDonald v. City of Chicago), and New York State Rifle & Pistol Association v. Bruen (2022) requires that a regulation be consistent with the nation's historical tradition of firearm regulation.

What the bar exam tests differently from a law school exam

A 1L exam wants you to spot every issue, argue both sides and name policy consequences. The MBE gives four answers and one is best under settled doctrine. Learn the standard of review for each right first, since half the wrong choices apply the wrong level of scrutiny. Learn the exceptions to each rule, since the question is usually built around one. And check the party and the forum before the merits, because justiciability and state action are the most common hidden first steps.

A study order that works

Week 1: justiciability and federal power. Week 2: separation of powers and preemption. Week 3: due process and equal protection. Week 4: the First Amendment, then takings, arms and the remaining topics. Do 20 constitutional law questions after each week and keep an error log by rule, not by case name.