Which issues actually carry the most exam points?
Most first-year Con Law courses are split into two halves — structure (federalism and separation of powers) and rights (equal protection, due process, First Amendment). Your exam almost always mirrors that split, either as two questions or as one sprawling fact pattern with a federal statute plus a state statute.
The recurring high-value issues, roughly in order of how often they anchor a question: Commerce Clause and its limits; equal protection classification and tier selection; content-based versus content-neutral speech regulation; substantive due process; dormant Commerce Clause; state action; the Spending Clause; anticommandeering; procedural due process; free exercise and establishment; standing.
The caveat matters: this varies by professor more than by jurisdiction. A professor who spent three weeks on the Reconstruction Amendments and Section 5 enforcement power will test City of Boerne v. Flores and Shelby County v. Holder; one who spent three weeks on the First Amendment will not. Count the pages in the syllabus assigned to each unit and weight your outline accordingly. Old exams from the same professor are worth more than any commercial outline.
How should you attack a federal power question?
Every federal statute question follows the same two-step: is there an enumerated power authorizing the statute, and does any external limit forbid it? Students lose points by collapsing these. Answer both even when the first is easy.
For the Commerce Clause, run the three Lopez categories: channels, instrumentalities and persons or things in interstate commerce, and activities that substantially affect interstate commerce. The third category is where the fight is. Ask whether the regulated activity is economic — Wickard v. Filburn and Gonzales v. Raich permit aggregation of economic activity, while United States v. Lopez and United States v. Morrison refused to aggregate noneconomic activity (gun possession near schools, gender-motivated violence). Note whether the statute has a jurisdictional element or congressional findings. Then flag NFIB v. Sebelius: Congress may regulate existing commercial activity but not compel entry into a market. If commerce fails, pivot to taxing (NFIB upheld the individual mandate as a tax) and spending.
Under the Spending Clause, apply South Dakota v. Dole: general welfare, unambiguous condition, relation to the federal interest, no independent constitutional bar, and not coercive. NFIB's Medicaid holding is your coercion authority — threatening all existing funds, not just new funds, is a gun to the head.
The external limit you must not miss is anticommandeering. Congress cannot compel state legislatures to enact law (New York v. United States), cannot conscript state executive officers (Printz v. United States), and cannot prohibit states from repealing their own laws (Murphy v. NCAA). Conditional preemption and conditional spending remain permissible — say why your facts fall on one side.
What is the fastest way to structure an equal protection or due process answer?
Equal protection is mechanical if you follow the sequence: identify the classification, determine whether it is facial or facially neutral, select the tier, apply it, then reach a conclusion. If the law is facially neutral, you need both discriminatory impact and discriminatory purpose (Washington v. Davis), with Village of Arlington Heights v. Metropolitan Housing Development Corp. supplying the circumstantial-evidence factors: historical background, sequence of events, departures from normal procedure, legislative history.
Race, national origin, and alienage (with the political-function exception) draw strict scrutiny — narrowly tailored to a compelling interest. Loving v. Virginia is your baseline; Students for Fair Admissions v. Harvard (2023) is the current word on race-conscious admissions. Sex draws intermediate scrutiny requiring an exceedingly persuasive justification (Craig v. Boren; United States v. Virginia). Everything else — age, disability, wealth, sexual orientation as the Court has formally handled it — draws rational basis, but note that City of Cleburne and Romer v. Evans applied rational basis with real bite where animus was present.
Substantive due process requires a fundamental right. Post-Dobbs v. Jackson Women's Health Organization (2022), the operative test is Washington v. Glucksberg: the right must be deeply rooted in the Nation's history and tradition and implicit in the concept of ordered liberty. Marriage (Obergefell v. Hodges), contraception (Griswold v. Connecticut), parental rights (Troxel v. Granville), and intimate conduct (Lawrence v. Texas) remain on the books. If no fundamental right, rational basis.
Procedural due process is a separate analysis and a common missed issue. Identify a protected property or liberty interest (Board of Regents v. Roth), then apply the Mathews v. Eldridge balance: private interest, risk of erroneous deprivation and value of added procedures, and the government's interest including fiscal and administrative burdens.
How do you organize a free speech question?
Start by asking whether the speech falls into an unprotected or less-protected category: incitement under Brandenburg v. Ohio (directed to and likely to produce imminent lawless action), true threats, fighting words (Chaplinsky v. New Hampshire), obscenity under Miller v. California, defamation under New York Times Co. v. Sullivan, and commercial speech under Central Hudson Gas & Electric Corp. v. Public Service Commission. The Court has refused to create new categories (United States v. Stevens).
If the speech is protected, the decisive question is content neutrality. A law is content-based if it draws distinctions on its face by subject matter or viewpoint, or if it was adopted because of disagreement with the message (Reed v. Town of Gilbert). Content-based laws get strict scrutiny. Content-neutral time, place, and manner restrictions get intermediate review under Ward v. Rock Against Racism — narrowly tailored to a significant interest, leaving ample alternative channels.
If the speech occurs on government property, run forum analysis: traditional public forum, designated public forum, limited public forum, nonpublic forum. Viewpoint discrimination is forbidden in every forum. Also screen for overbreadth, vagueness, prior restraint, and compelled speech (303 Creative LLC v. Elenis), and for government speech, where the Free Speech Clause does not apply at all (Shurtleff v. Boston).
Which threshold issues do students skip and lose points on?
State action is the most frequently omitted issue on rights questions. If the defendant is a private party, the Fourteenth Amendment does not apply unless the private actor performs a traditional and exclusive public function or the state is entangled through significant encouragement or joint participation. Compare Marsh v. Alabama and Brentwood Academy v. Tennessee Secondary School Athletic Ass'n with Jackson v. Metropolitan Edison Co. and Manhattan Community Access Corp. v. Halleck.
Justiciability is the second. Standing under Lujan v. Defenders of Wildlife requires concrete and particularized injury in fact, causation, and redressability; TransUnion LLC v. Ramirez tightened the concreteness requirement for statutory injuries. Also flag ripeness, mootness with its capable-of-repetition exception, and the political question doctrine (Rucho v. Common Cause held partisan gerrymandering nonjusticiable).
Third is the state-law side of federalism. A state law burdening interstate commerce triggers dormant Commerce Clause analysis: facial discrimination gets near-per-se invalidity subject to the no-reasonable-alternative showing (Philadelphia v. New Jersey), while evenhanded laws get Pike balancing. Watch for the market participant exception (Reeves, Inc. v. Stake). Then check the Article IV Privileges and Immunities Clause, which protects only out-of-state citizens (not corporations) as to fundamental rights like earning a living (Toomer v. Witsell). Finally, check preemption — express, field, and conflict.
Where has doctrine shifted enough to be exam bait?
Professors love testing recent movement because it defeats canned outlines. Kennedy v. Bremerton School District (2022) rejected the Lemon test and directed courts to look to historical practices and understandings for Establishment Clause questions — do not write a Lemon prong analysis without acknowledging this. Free exercise still runs through Employment Division v. Smith for neutral and generally applicable laws, with Church of the Lukumi Babalu Aye v. City of Hialeah and Fulton v. City of Philadelphia showing how easily a law loses general applicability once it contains discretionary exemptions.
On funding, the Trinity Lutheran–Espinoza–Carson v. Makin line holds that excluding religious institutions from generally available public benefits because of their religious status or use is presumptively unconstitutional.
Also watch takings, which many courses cover late and test lightly but which rewards a clean framework: per se physical takings (Loretto; Cedar Point Nursery v. Hassid), total economic wipeout (Lucas v. South Carolina Coastal Council), Penn Central balancing otherwise, exactions under Nollan and Dolan, and public use under Kelo v. City of New London.
How should you write the answer under time pressure?
Use headings that name the doctrine, and one paragraph per issue in IRAC. Con Law rewards explicit tier selection: state the standard of review in its own sentence, say who bears the burden, then apply. A grader can award points for 'strict scrutiny applies because the classification is racial, so the government must show narrow tailoring to a compelling interest' even if your conclusion is wrong.
Argue both sides on the tailoring and interest prongs, since that is where the points live. Conclude anyway — an answer that never resolves anything reads as an outline dump.
Finally, do not ignore the easy alternative theory. If the Commerce Clause fails, spend two sentences on the taxing power. If strict scrutiny is doubtful, run rational basis in the alternative. Most exams are graded on a checklist, and alternative-holding sentences are cheap points.