Bar Exam Basics That Every Normal Person (i.e. non human-shark hybrid) Should Know – Con Law

(It’s that time of year again.  In honor of that annual (unless you fail or are taking a new state and have to take it in February) shit show, responsible for newly minted JDs’ heart attacks across the country, known as bar study, I’m putting up a basic primer on each of the big areas covered on most of the states’ bar exams.  This is all just what we call “black letter law,” as in simplified and pretty set concepts, and, as always, is not to be taken as legal advice, merely the pontification of a lawyer who likes the sound of her own writing 😉


1. To see if the Constitution even applies, ask yourself if the government is actually doing an action.  If not, you’re not looking to the Constitution.  (See post from 5/20/14 on law basics for a touch of this.)  The Constitution does not protect you from private citizens acting against you, ONLY the Government.  (It’s okay to say you plead the 5th if your friends are asking you to fess up to a slutty encounter because “I plead the 5th” has become part of our slang to mean, “Are you kidding me! I’m not answering that!”  Just as long as you know it’s not legally binding when you’re saying it to other private parties.)

2. To bring a case in court, you must have 4 things.  i. Standing: a stake in the case, as in, you are asking for the court to fix something for you.  You can’t just be pissed that your sister was swindled by an unscrupulous art dealer, your sister has to bring the case.  ii. Ripeness: there’s a controversy that needs to be solved now, not something that could occur in the future.  iii. Not-Moot: the controversy still needs to be settled, there’s still some kind of “injury” to the person bringing suit.  iv. Not a political question: ummmmm, I’d explain more if I could, but basically it’s the court saying, “That’s up to the President or Congress, we are not climbing into that ring.”

3. The Federal Government can not technically do anything without tying the power to do it back to listed powers in the Constitution.  Can you guess what they normally use to justify their acts?  The Commerce Clause, saying they can regulate interstate commerce. Yeah, think about that one for a minute.

4. Annnnnnd my favorite part of the evening (drum roll please) the levels of scrutiny.  These are what the courts use to determine if the law passed should be upheld.  There are different rights covered under the different levels of scrutiny, and if the court finds the government met that level of scrutiny in the law that’s being argued, they get to infringe your rights.

i. Strict Scrutiny: Applies to fundamental rights or if there’s a law that involves people of a “suspect classification,” such as race or religion.  To be upheld, the law must be necessary to achieve a compelling government purpose and the means used must be “the least restrictive means” of achieving that purpose.  As you can imagine, the government doesn’t win this one often.

ii. Intermediate Scrutiny: Applies to some first amendment issues and gender issues (you’d think those would only be under strict scrutiny, huh?).  The law must further an important government purpose and be by means that are substantially related to that interest.

iii. Rational Basis: Applies to everything you can’t argue should be under one of the other two.  The law only has to be rationally related to a legitimate government purpose and the means must be a rational way to achieve the purpose.

Meaning, which level of scrutiny you can get your issue framed as being under is extreeeeeeemely important.


7 thoughts on “Bar Exam Basics That Every Normal Person (i.e. non human-shark hybrid) Should Know – Con Law

  1. As we learned during the Obama administration, the term “standing” can be slippery. Federal courts ruled that individuals, suing to force Obama to release his long-form birth certificate, had no standing. They ruled the same (along with a military Courts Marshal) that US soldiers have no standing. Feds even argued that the Attorneys General of the several states had no standing to sue for production of the document. Nor do the state presidents of losing parties have standing — and certainly they as representatives of their candidates SHOULD be among the injured parties (if allegations were true). But the feds were very tight-lipped about who DOES have fracking standing to force a candidate or office-holder to prove his bona fides!

    The federal theory of the Commerce Clause boils down to a very simple statement. “If we can tie it to commerce, we can regulate anything and everything that goes on in the country.” The feds will argue that if you dig up iron ore in your back yard and some coal, then work the ore into an iron object in a kiln you sun-baked from clay on your property and you sell that object to your neighbor, they can still regulate it. They argue:
    1. The shovel you used was once in “interstate commerce” thus the ore you dug up to produce your object was “affected” by interstate commerce.
    2. Your production of the object and sale of it to a neighbor “affects interstate commerce” because it diminishes the interstate commerce demand for some similar type object (by one sale).

    They have actually argued that if you build an object and use a screw produced on by a local company it’s able to regulate your object because the screw had… (1)the metal came from out of state to make the screw, (2)the machine that turned the screw was made out of state, (3) the tool/die that formed the screw threads was from out of state, (4) the packaging materials or price tag was from out of state, (5) the ink printed on the packaging came from out of state (6) the water or electricity used came from out of state or (7) any part, component or item used to make something (e.g. tool metal) that was used to make something for the screw (e.g. die) came from out of state.


    1. And on top of that, they have also said if they are regulating something in interstate commerce, and you are growing it only for personal use, that still affects interstate commerce because then you aren’t buying it. They’ve used this to justify federal drug laws, saying they’re regulating interstate commerce in the form of banning the thing. So even if it’s legal in that state, you are still breaking federal law.

      Liked by 1 person

    2. By the way Bill, the Secretary of State for each state has the ministerial duty to verify whether candidates are qualified to be put on the ballot. That would make your example a state lawsuit, not federal. I guess it’s worth hiring an attorney who knows this before believing that the case will or should go to the US Supreme Court.


  2. I have a theory that the average person will do only marginally worse than the person studying for the MBE portion of the bar exam. I don’t see more than a 20% difference. In fact, I’m now remotivated to put this to the test.

    This is actually pretty solid information for a layman. A lot of lawyer websites are generally very transparently just there to lure in clients (not that there’s anything wrong with that) instead of educating people. Considering how often I hear, “He/they are violating my constitutional rights!” it’s beneficial for more people to understand levels of scrutiny so that way they understand why the .gov is getting away with it.

    I still stand by the belief that strict scrutiny is the only justifiable way to view the Bill of Rights, but it’s good to be able to point out to people why I say what I say when providing legal advice without them thinking me a statist.


    1. I must disagree about your MBE point, sir, the average person facing down evidence, contract and (shutter) property questions would be screwwwwwwwed 🙂 I would like to see it tested though.

      The reason law firm blogs exist is to get people to their site and get clients. They try to accomplish this by giving out good, entertaining info (some do this better than others), but the point is to get clients.

      My blog is really about conveying information in an entertaining way because I’m not trying to promote anything but my writing. I don’t want clients, just readers 😉

      Liked by 1 person

      1. The reason I think that the average Joe could do as well is simply because MBE questions are so nuanced as to make it to where when you look at the question, it’s rarely the first, second, or third answer that comes to mind.

        For example, you would look at an evidence question and say, “This is a hearsay question.” But you’ll soon figure out that it is actually an exception to the hearsay rule. But then because of some odd-turn you’ll still be wrong because where the question is leading you to go after an exception to hearsay, there’s one tiny word in there that makes the exception not apply, so that way if you didn’t even know about the exception to hearsay you’d have been right in the first place.

        Then again, maybe I’m just jaded. I certainly wouldn’t be the first lawyer to be. All I know is that I’ve made it through 2 wars and yet the only time in my life I’ve ever actually felt a NEED to drink is as a practicing lawyer. During Bar study, it was the only time in my life I ever actually smoked regularly. I’d get so angry with my MBE questions that I’d have to go outside and calm down. I logged 411 hours on bar study and absolutely do not envy those doing it now.


  3. Ohhhhh, I misunderstood, I thought you were saying it’s easy and straightforward so any person off the street could do it, not that it’s so hard studying practically doesn’t help you 😀

    It was certainly an interesting experience. But I took the opposite track with drinking. That’s for fun and taste for me, so during bar study when I didn’t have time for such frivolities, I had all of maybe 4 glasses of wine through the entire 10 weeks.

    My friends starting the study process now have got me having PTSD flashbacks. It’s just started so they’re all still in the, “This won’t be so bad, I’ll study and do fine,” mindset. My response? Hahahahahahaha.

    Liked by 1 person

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