Constitutional Law common mistakes
Constitutional Law · Understand the traps and how to avoid them.
Treating every equal protection problem as one test: you announce strict scrutiny for any classification that 'looks like' race or fundamental rights without first identifying the classification and the right actually at stake, and without separating facial from as-applied discrimination.
Bar outlines group tiers under one heading, so candidates memorize three tests and pattern-match keywords ('race', 'voting', 'alienage') instead of running the threshold steps: what classification, what interest, who is burdened. This produces wrong-tier answers on alienage (congressional plenary power exception), age (rational basis), and facially neutral laws with disparate impact (Washington v. Davis intent requirement).
What to do instead
Before writing, answer three questions in order: (1) Is the classification facial or facially neutral with disparate impact? If neutral, is discriminatory purpose shown? (2) Suspect, quasi-suspect, or neither? (3) Is a fundamental right burdened? Then state the tier and the burden-holder. Drill the exceptions explicitly: alienage, age, poverty, and voting.
Citing the incorporation doctrine as if it applies the entire Bill of Rights to the states, and treating the Second, Third, Fifth, Seventh, and grand jury clauses as incorporated.
The 'total incorporation' versus 'selective incorporation' debate is taught historically, and candidates remember 'the Bill of Rights applies to the states' without the itemized list. The bar-tested list is short and specific, so guessing produces wrong answers on the Second Amendment (incorporated in McDonald), the grand jury requirement (not incorporated), and the Seventh Amendment civil jury (not incorporated).
What to do instead
Memorize the non-incorporated set: Fifth Amendment grand jury indictment, Seventh Amendment civil jury, Third Amendment quartering (never squarely decided), and the excessive fines clause (incorporated in Timbs). For everything else, name the case that incorporated it (e.g., Mapp for the exclusionary rule, Gideon for counsel, McDonald for the Second Amendment).
Analyzing a state regulation of interstate commerce only under the Dormant Commerce Clause discrimination test, skipping the Pike balancing step for nondiscriminatory laws and skipping the market-participant and congressional-authorization exceptions.
Candidates learn the 'discriminatory vs. nondiscriminatory' fork but forget that most modern exam facts involve facially neutral laws with incidental burdens (truck-length limits, waste-flow rules), which require Pike balancing, and that a state acting as a market participant is exempt from the Dormant Commerce Clause.
What to do instead
Run a fixed sequence: (1) Is Congress's power exclusive or has it legislated? (2) Is the state a market participant? (3) Does the law discriminate on its face or in effect? If yes, apply strict scrutiny plus a presumption of invalidity and check for a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. If no, apply Pike: incidental burden clearly excessive in relation to local benefits.
Conflating the Eleventh Amendment with sovereign immunity generally, and asserting that states cannot be sued for any violation of federal law, including under Section 5 of the Fourteenth Amendment or for prospective injunctive relief.
The Eleventh Amendment text speaks only to diversity jurisdiction over suits against a state by citizens of another state, but doctrine (Hans v. Louisiana) extends it to federal-question suits by a state's own citizens. Candidates collapse the text and the doctrine and then miss Ex parte Young and the congressional abrogation question under Section 5.
What to do instead
State the rule in layers: (1) Eleventh Amendment bars damages suits against states in federal court, including by own citizens; (2) Ex parte Young permits prospective injunctive relief against state officers; (3) Congress may abrogate only under Section 5 of the Fourteenth Amendment (or other post-ratification amendments) and only with unmistakably clear intent, and the abrogation must be congruent and proportional (Kimel, Board of Trustees v. Garrett); (4) states may waive.
Answering a standing question by discussing only injury in fact and forgetting causation, redressability, and the ban on generalized grievances, or by treating taxpayer and third-party standing as freely available.
Standing is taught early with the Lujan three-part test, but exam facts are built to test the exceptions: taxpayers challenging federal spending (Flast exception limited by Valley Forge), organizational standing, and associational standing. Candidates also forget that a plaintiff cannot assert the rights of third parties absent a close relationship or third-party barriers.
What to do instead
Write the three elements as a checklist and then add the special rules: no generalized grievances; taxpayer standing only for Establishment Clause challenges to congressional expenditures under the taxing and spending power (not executive expenditures); organizational standing requires injury to the organization itself or to members with the requisite participation; ripeness and mootness are separate justiciability hurdles that must be checked independently.
Treating the Establishment Clause as a single test and applying Lemon mechanically to every fact pattern, including displays, legislative prayer, and government funding of religious institutions, without noting the current doctrinal fragmentation.
Lemon v. Kurtzman is the most memorable case, so candidates apply its three prongs even where the Court has used historical practice and tradition (Marsh v. Chambers for legislative prayer, Town of Greece), coercion analysis (Kennedy v. Bremerton for prayer), or the neutrality-plus-history approach in the display cases (Van Orden, McCreary County).
What to do instead
Identify the category first: (1) government funding of religious institutions (neutrality and private choice, Zelman, Trinity Lutheran, Espinoza); (2) religious displays (history and tradition, context-sensitive); (3) legislative prayer (Marsh/Greece); (4) religious exercise in public schools and coercion (Bremerton). State which line of cases governs and note that Lemon survives mainly as a residual test for endorsement-type claims.
Conflating the Free Exercise Clause with the Establishment Clause and applying strict scrutiny to a neutral, generally applicable law that burdens religion, or conversely applying Employment Division v. Smith to a law that targets religious conduct.
Smith v. Oregon is frequently misremembered: it holds that a neutral law of general applicability need not be justified by a compelling interest even if it burdens religion. Candidates either over-apply strict scrutiny (pre-Smith Sherbert reasoning) or overlook that Smith does not protect laws that discriminate against religion or involve individualized exemptions.
What to do instead
Use a two-step: (1) Is the law neutral and generally applicable? If yes, Smith applies and the claim fails. If no, strict scrutiny applies (Church of Lukumi Babalu Aye). (2) Check hybrid-rights and individualized-exemption exceptions, and note that RLUIPA and state RFRAs may impose stricter statutory standards that are not constitutional holdings.
Treating the President's removal power as absolute or as uniformly limited, without distinguishing principal officers (PODSAC), inferior officers (Morrison, PCAOB), and multimember commissions (Humphrey's Executor, Seila Law).
The unitary executive theory is taught as a slogan, and candidates apply 'the President can fire anyone' or 'Congress can condition removal' across the board. The actual doctrine turns on the officer's function and the degree of congressional intrusion, and the Court has drawn lines by officer type and by whether the agency exercises executive power.
What to do instead
Build a table: principal executive officers removable at will (Myers); inferior officers with limited duties and fixed terms (Morrison); multimember bodies with quasi-legislative and quasi-judicial functions (Humphrey's Executor); the FTC/CFPB distinction (Seila Law, Collins). For each, ask whether the removal restriction impedes the President's ability to perform his constitutional duty.
Answering a state action question by finding 'significant state involvement' whenever a private party receives a license, subsidy, or regulation, without applying the specific tests (public function, entanglement, joint action, and the state-action requirement for Section 1983 claims).
The state action doctrine is taught through a list of cases (Marsh, Burton, Moose Lodge, Jackson v. Metropolitan Edison) that pull in different directions, and candidates over-read 'state involvement' as sufficient. The result is finding state action where the Court has refused it (regulated utilities, licensed liquor, private clubs) and missing the public-function category (company towns, elections).
What to do instead
Apply the categories explicitly: (1) public function (exclusively public functions such as elections and company towns); (2) entanglement (state compulsion, encouragement, or joint participation); (3) joint action/symbiotic relationship (Burton); (4) the 'close nexus' requirement. State which category the facts fit and why the others fail.
Treating substantive due process and equal protection as interchangeable when a law burdens a fundamental right, and failing to state which clause the claim arises under, which determines the level of scrutiny and the remedy.
Both doctrines use strict scrutiny for fundamental rights, so candidates write 'strict scrutiny' without identifying the vehicle. But the clauses differ: substantive due process covers liberty interests (privacy, marriage, family, medical decision-making), while equal protection covers classifications. The distinction matters for abortion regulation, vaccine mandates, and economic liberty claims (rational basis under both).
What to do instead
Begin every fundamental-rights answer by naming the clause: 'This is a substantive due process challenge to a law burdening the right to X' or 'This is an equal protection challenge to a classification based on Y.' Then state the right, whether it is fundamental, and the scrutiny. For unenumerated rights, apply the Glucksberg tradition-and-history test and note Dobbs's effect on the abortion right.