Constitutional Law 101
Constitutional law is the study of the fundamental laws and principles by which a state, nation, or other sovereign entity is governed and informed of its basic political and legal structure. These can be written or unwritten, and constitutional law often includes the interpretation or explication of statutes, ideas, or procedures which touch upon these fundamental laws as well. In many cases, these concepts of constitutional law are created or interpreted by a judicial body such as the Supreme Court, but not always.
The Constitution of the United States, which serves as the primary document of constitutional law, was signed in 1787 at the beginning of the U.S. government, but amendments have been made to it in the years since, as have legal interpretations and applications. Most modern laws of the country are grounded in or based upon the Constitution, including immigration, taxation, and civil rights laws.
Constitutional law is not studied in isolation in most schools, as it directly impacts much of the business law, civil rights, and insurance law studied by those attending law school. It does tend to be an area of law that students find most challenging and difficult to understand , both conceptually and when it comes to answering actual on-screen exam questions.
One reason constitutional law is so difficult to study is that there are few if any clear laws regarding a great deal of the material it covers. Instead, interpretations of the law which evolved outside of the basic laws will often guide certain key areas, such as the scope and boundaries of free speech. For this reason, constitutional law exam questions will often create unusual hypothetical scenarios which require students to draw from a wide knowledge of law and its applications in order to arrive at the correct answer.
It is this aspect of constitutional law study that most enhances a student’s practical knowledge. Even if they do not go on to practice constitutional law, their knowledge of the law as it stands today and as it has developed through the years will provide them with a strong foundation. This foundation will help them in their law exams, and when they take their state bar exams to become licensed attorneys.
For this reason, constitutional law is an essential area of study in law schools and for carriers in practiced law. It helps students develop a strong knowledge of the law as it stands today, and it helps them learn how to apply it when confronted with challenging situations and problems, such as those posed by exam questions.
Exam Question Types
When it comes to constitutional law exams, there are typically three different types of questions: multiple choice, essay, and hypothetical questions.
Multiple choice questions tend to be the most common type of constitutional law exam question and test your abilities in a test-like situation. These questions typically ask you to recognize and distinguish between the fact patterns where different doctrines apply. When you are confronted with multiple choice questions in a constitutional law exam setting, I strongly suggest that you read all the answer choices before you make a decision. Many people will read them in order, but often there will multiple correct answers to an exam question and you need to find the best one.
Essay questions are a common form of constitutional law exam question in many classes as well as the bar exam. Here is where you really need to go into depth and present your knowledge. When you encounter essay questions, it is crucial that you fully explore the nuances of the precedents which you bring to bear on the issue. You also need to stay clear in your organization, as you bring in your own interpretations of who wins and loses, and how you came to that conclusion. Hypotheticals test your ability to apply what you know to new and untested areas of law or give you variations in past Supreme Court decisions that could have gone either way. You need to carefully examine the facts and the law in a situation like this and determine how you come down on the issue of whether the court went in the right direction or not. This is even more important if you are given a choice of how the decision should have gone.
Exam Topics in Constitutional Law
The most salient topics and themes in constitutional law are guaranteed to appear in any conlaw exam, and include the following:
The emergence of modern judicial review in Marbury v. Madison, the Court’s first major statement of its own power, and where the word "judicial" suddenly became an adjective for something else; ever since, "review" has meant the ability of one branch of government to overturn an act of another;
The establishment of the separation of powers doctrine in the Federalist papers by Hamilton and Madison, and the subsequent re-establishment of that theory by Nixon and his lawyers who incorrectly believed that only Congress could end a presidential term;
The tragedy of Youngstown Sheet & Tube Co. v. Sawyer, where the Supreme Court held that President Truman could not seize the steel mills to settle a labor dispute, where Neil Gorsuch assisted his father and ably argued that precedent is not reason enough to uphold bad decisions;
The Warren Court’s expansion of the rights of individuals against government, and the subsequent backlash that led to the Rehnquist Court and ultimately, to the Roberts Court;
The enigma of the Court’s 14th amendment jurisprudence, ranging from modern desegregation cases, Congress’s power to affect legislative redistricting, and the bizarre reasoning and effects of the Court’s equal protection jurisprudence;
The thorny question of anti-injunction statutes, such as the "Johnson Act," which prohibits federal courts from from staying the enforcement of certain nonbankruptcy injunctions, and how that question may rear its head again in the future in the implementation of the Consumer Financial Protection Bureau;
State action and the difficulty of defining it in the modern context, now that states have increasingly ceded their functions to private companies, and how recent data privacy issues may impact the Court’s inquiry;
How and when states can treat individuals differently, both inter- and intra-state, for a variety of purposes (the equal protection clause may have its origin in guaranteeing that States can not discriminate on the basis of race, but in actuality, its major use since the Warren Court has been to argue for the right of states to treat rich people better than poor people);
States’ rights arguments and their long-term efficacy, particularly in the wake of our new era of political discord, where we see states experimenting with diverse approaches to solvents issues like abortion and drug decriminalization, and the outcomes of those various approaches;
The Court’s recent analyses of executive power under the Obama and Trump administrations, such as the president’s use of memoranda to affect change without Congressional approval;
The Commerce Clause and its tension between two of the Court’s core doctrines, which as I once explained in this blog post, are sometimes used to protect the efficaciousness of Congress’s commerce power, and sometimes used to temper that same power; and
The First Amendment, the Court’s greatest contribution to American jurisprudence, whose tension between guaranteeing individual rights and curbing those rights lies at the heart of our very democracy.
Constitutional Law Question Answering Strategies
Law school exams will generally focus on statutory law, common law, and the constitution. In most situations, a law school exam will very plainly set the issue: decide whether or not the statute is constitutional? In situations where the statute is at issue, following the simple three-step process below should help to structure your answer:
Issue
State the issue that is at stake in the scenario.
Rule
State the rule associated with the issue. For example: the first amendment.
Application (ABCs)
For best results apply the rule to each party of the scenario to reach an outcome. If there are multiple parties, use the letters A, B, C to separate them. For example: A states the issue that the arrest was illegal and the rule is the 4th amendment unlawful search and seizure. B states that the arrest was illegal but the rule is the 6th amendment right to counsel.
Conclusion
Read the call of the question and provide the answer.
Make sure that you pay attention to the point value of each section of the exam and allocate your time accordingly. For example, if you have 80 minutes for the exam and there are four questions worth up to 20 points each, then you should not spend more than 15 minutes on each question.
Model Questions & Answers
Such is the importance of passing the exam that we devote a large part of this chapter to exam questions. We outline below three typical exam questions with model exam answers. Please bear in mind that there is no strict formula to pass the exam however we believe following the guidelines below provides the best chance of success.
Question 1
Write a detailed note demonstrating your knowledge of the principles of standing, including the application of standing rules to both constitutional challenges and judicial review. Discuss the extent to which these rules were changed by the passing of the Judicial Review Act 2000.
Answer 1
Standing is one area where constitutional and administrative law are very much intertwined. The question of who can bring proceedings under the Constitution takes us to Article 40.3 of the Constitution, which gives a right of access to justice but confines that right to those able to show that they had suffered some form of prejudice or invasion to their own rights. This criterion of ‘special damage’ is a strict one, particularly as the courts must have regard to the principle of separation of powers when deciding whether or not an individual has been affected in such a way so as to bring a challenge. In political cases, the courts have not favoured locus standi except in the clearest of cases, where the citizen can demonstrate that he or she has been personally attacked in a way which impinges on their personal dignity and social integrity or otherwise causes them personal injury. See Heffernan v Ireland [1990] ILRM 737, where the facts of the case must have demonstrated that Dr Heffernan’s professional reputation was unjustly injured in a permanent and deeply serious way. The corresponding provision in administrative law is O.84, R.20(4) of the District Court Rules, which requires a private right claimed to be directly affected by the administrative act. Standing is now governed by the Judicial Review Act 2000, which draws a sharper distinction between constitutional and administrative cases, though it preserves the constitutional principles. Standing in constitutional cases is still confined to the ‘special damage’ test (see re Merck Sharpe and Dohme Corporation & Ors [2008] IEHC 377). The 2000 Act relaxed the administrative law test, so that any ‘sufficient interest’ is now adequate to ground standing – O.84, R.20(4) of the District Court Rules . Note that the court must still be satisfied as to the existence of such an interest and that it may still decline to entertain an action even if the applicant does have a sufficient interest, if it appears to the court that the matter may be more appropriately determined in other proceedings. Standing was extended from June 1 2004 to apply to ‘any organisation’ (as opposed to ‘any body’), whether incorporated or not, provided that its objects are of public concern.
Question 2
Discuss the concept of ‘separation of powers’, including examples and the importance of maintaining the principle, followed by your analysis of the extension of the principle of separation of powers to judicial review.
Answer 2
The doctrine of separation of powers is often described as the cornerstone of the Constitution, and indeed the failure to uphold the principle is a fundamental breach of constitutional justice. The separation of powers has been recognised and given effect to by the drafting of our Constitution. Article 34 establishes the independence of the courts, making the powers of the executive branch and the power of resolution of legal disputes under the Constitution clearly separate. The Constitution clearly establishes the independence of the Judiciary: ‘Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and who shall hold office on the terms of this Constitution and not otherwise.’ (Article 35.2).
The principle of separation of powers has now been extended so as to inform judicial review. However, critics of this extension argue that the principle of separation of powers should not extend to judicial review. As Mac Menamin J recently noted in Tuite v An Bord Pleananaile [2015] IEHC 20, ‘claims of separation of powers could now be expected to be raised almost any time a person seeks to hold a statutory decision maker accountable by judicial review. Judicial review could be rendered nugatory or unmanageable in many instances. Such a consequence could not have been the intention of the Legislature’.
The courts have held that the principle of separation of powers, whilst to be given due respect and weight, cannot restrain jurisdiction conferred on them by the Constitution and the courts. In the case of Brady v O’Leary and Minister for Social and Family Affairs [2007] IEHC 354, McKechnie J stated, ‘[t]he constitutional mandate of the courts has primacy over all such issues, whether on the basis of separation of powers or otherwise, and which must be scrupulously respected by the executive’.
Exam Answer Slip-Ups
Mistake 1 – Don’t get distracted by facts that aren’t the issue. "How do you ask this person to rob a bank without a gun?" is a question that prevents students from focusing on the analysis section of their answer. In your answer, keep the discussion of facts and procedural points to a minimum. In a lot of cases, it’s worth mentioning facts that create a bright line separation between appellate review and a remand to the lower courts. Beyond that, don’t waste your time on anything that doesn’t bear on the outcome.
Mistake 2 – Don’t mistake the holding for the actual "rule of law." You’ve heard of the holding, but that’s not actually the right place to look for the rule of law. In constitutional law, it’s better to think of the holding as shorthand for the case’s entire analysis from rule of law through reasoning to outcome. The holding is a condensation of a case’s ratio decidendi, not its rule of law. Put another way: never, ever, look at the holding and think, "got it in one." Look at the facts, the issue, the rule of law, the reasoning, and the outcome.
Mistake 3 – Don’t forget that these are very, very hard questions. Students are pretty good at spotting issues, because they expect to see an issue at the beginning of a question that hints at how to issue spot. What students struggle with is the analysis.
Mistake 4 – Don’t forget that there might be more than one issue to discuss. The best answers will spot and discuss all issues. Beware of multi-part issues. In a constitutional law context, splitting an issues tends to spread the discussion over too much of the exam. A common reason for getting two questions on the same fact pattern could be the splitting of an issue that easily could have been combined into one discussion.
Mistake 5 – Don’t run out of time.
Additional Learning Tools
For those desiring more insight and explanation, there are a number of excellent legal textbooks on Constitutional Law, Criminal Procedure, Criminal Law, Torts, and Evidence. Also, many law schools offer online courses in these subjects for those who do not wish to commit to the rigors of another legal degree program. The American Bar Association (ABA), with its logical focus on enabling lawyers to be lawyers, offers a great number of online education resources tailored specifically to enhancing practice and preparing for exams and bar exams. And, barring all else, the student absolutely must find a study group of other students in their class or year. Nothing beats discussing and presenting to each other in a small group setting . There are two essential sites that everyone must utilize: http://www.law.cornell.edu/rules/rules.htm for the Federal Rules of Criminal Procedure (FRCP) and http://www.law.cornell.edu/rules/frcp/rule18.htm for the Federal Rules of Evidence (FRE). These sites are free and are maintained by Cornell Law School. These are essentially the most recent comprehensive versions of the rules the student needs to master in these exams. Finally, it is always advisable to get a commercial outline or two on any topic or exam subject area, preferably "at a glance" type outlines or one with flow charts. The authors of such outlines are generally professors whose lectures students will have to identify and become familiar with, so an overview is always useful.