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OK Bar: Constitutional Law

OK Bar · Work through your exam, one topic at a time.

All guide sections

Constitutional Law

Constitutional Law

Constitutional Law questions test justiciability, federal power, state regulation, due process, equal protection, and the First Amendment. The exam expects you to name the tier of scrutiny before you apply it.

Justiciability and federal power

  • Standing requires injury in fact, causation, and redressability (Lujan). Ripeness and mootness limit timing; the political question doctrine is narrow.
  • Commerce power reaches channels, instrumentalities, and activities substantially affecting interstate commerce (Wickard; Lopez limits to noneconomic intrastate activity).
  • The Dormant Commerce Clause bars discriminatory state laws absent a legitimate local purpose that cannot be served otherwise; Pike balancing applies to nondiscriminatory burdens.
  • Spending conditions must serve the general welfare and be unambiguous, related, and not coercive (Dole; NFIB).

Due process and equal protection

  • Substantive due process protects fundamental rights under strict scrutiny; economic regulation gets rational basis.
  • Equal protection: strict scrutiny for suspect classes and fundamental rights; intermediate for sex and illegitimacy; rational basis for everything else.
  • Procedural due process uses the Mathews balancing test.

First Amendment

  • Content-based regulation gets strict scrutiny; time, place, and manner rules get intermediate scrutiny.
  • Incitement requires intent and likelihood of imminent lawless action (Brandenburg); true threats and fighting words are unprotected; obscenity uses Miller; commercial speech uses Central Hudson.
  • Free exercise: Smith applies neutral, generally applicable laws; recent decisions also look to historical practices. Establishment Clause analysis now emphasizes historical practices and government neutrality (Kennedy v. Bremerton).

Worked example

A city bans billboards within 500 feet of schools but allows other signs. The law is content-neutral and serves traffic safety and child protection. It is a time, place, and manner rule: narrowly tailored, with alternative channels. It likely survives intermediate scrutiny.

Traps

  • Suing the state without addressing Eleventh Amendment immunity.
  • Applying strict scrutiny to all speech regulations.
  • Forgetting the state action requirement.