We just celebrated Independence Day.
The bar exam is administered later this month.
So, it’s the perfect time to—you guessed it—study Constitutional Law bar questions.
Especially California’s Con Law essays.
Before we turn our attention to two valuable tips, let’s do a quick history lesson:
- The Cal Bar has tested Constitutional Law (a.k.a. Con Law) 35+ times since 1986.
- Individual rights (including the First Amendment, substantive due process, and equal protection issues) are bar examiner favorites.
- Issues relating to limitations on a state’s powers (e.g., the Supremacy and Dormant Commerce Clauses) also appear with some regularity.
You’ll face a mixed bag of question types in Constitutional Law essays. This bag contains specific calls that identify the issue for you + general questions that leave the issue-spotting up to you.
With whichever type you get, Constitutional Law questions present an opportunity to showcase your reasoning skills.
This can look like:
- Explaining why a particular government action isn’t narrowly tailored to achieve a compelling government interest.
- Identifying, explaining, and responding to counterarguments.
Without a doubt, crushing Constitutional Law bar questions—and in this case, the CA Bar Exam’s essays—requires dedicated practice. We recommend you fully write out at least five constitutional law essays under timed, closed-book conditions, and issue-spot several more.
Now, let’s explore two smart ways to approach your Con Law essays.
Start with Standing (But Be Smart About Strategy)
Is a person or entity alleging that a governmental action violates the U.S. Constitution?
If so, you should almost always start with standing.
To be more specific:
Analyze whether said person or entity has the standing to make this allegation.
The buzzwords to use:
- Injury (the person or entity must prove that they have suffered an injury in fact)
- Causation (said injury must have been caused by the governmental action)
- Redressable (the injury must be redressable by a decision in the person or entity’s favor)
That said, how much (very precious) time you spend addressing this issue + your organizational approach should depend on the facts.
If the issue is cut and dried, and there’s no controversy about whether any of the three requirements are met, your best bet is to stick to a single IRAC. This means devoting no more than a sentence or two to analyzing each.
Here, [Person/Entity] has suffered an actual injury because [Insert Facts]. [Person’s/Entity’s] injury was caused by [Governmental Action] because [Insert Facts]. Finally, [Person’s/Entity’s] injury will be redressed by a decision in their favor because [Insert Facts].
By contrast, you may want to devote a sub-IRAC to each of the three requirements, and spend more time analyzing each if:
- The call of the question specifically asks about standing (prime example: “State X Docks Teacher Pay” essay from July 2016),
- There are lots of facts that “match” to this issue, or
- There are arguments on both sides.
One tactic for Constitutional Law bar questions down, one to go!
Beware the Balancing Test
Are individual rights at issue?
Then it’s almost a given that you need to apply a balancing test, determining whether some governmental action passes constitutional muster.
Keep these pointers in mind:
The governmental interest (allegedly) being advanced by said governmental action won’t always be identified for you.
(In fact, it probably won’t be.)
You need to deploy your reasoning skills, explaining what that interest is.
Ponder things like:
- Public safety
- Protecting children
- Preventing blight
- Preserving scarce resources
If the level of review required is strict scrutiny, it’s fine to conclude that the governmental interest is compelling.
However—at least when it comes to the bar exam—it’s extremely unlikely that the governmental action is ever necessary to achieve that compelling interest.
Rack up points this way:
Use your reasoning skills to identify alternative ways the government could achieve its objective(s).
Then, if the level of scrutiny is rational basis, the governmental action will almost always pass constitutional muster, so be wary of reaching a contrary conclusion.
Your One-Stop Shop for Constitutional Law Essay Questions and Answers
With the California Bar Exam fast approaching, there’s no time to lose.
By now, you may have a good sense of which issues are no-brainers—and which ones are stumbling blocks.
Or, you may need to dive into extra bar essay practice before the big day, determining which topics + subtopics deserve your attention.
You’re invited to:
- Take advantage of our free writing assessment to get our faculty’s feedback on an essay or PT.
- Consider our other essay-focused offerings, including our Mastering CA Bar Essays Course.
- Check out our latest program that’s a one-stop essay-studying shop: EssayRx.
With EssayRx, you simply search or browse by topic or issue (330+ of them), targeting the ones you need to practice. This database covers Constitutional Law bar questions + all topics tested on the CA Bar. California Bar Exam essays are available now, and UBE essays are coming soon.