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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.

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