Things You Should Know About Con Law

If you are a first year law student, most of you are most taking constitutional law. At first glance, this might seem like something you learned in high school civics. However, as it has become clear by now, that’s not the case. So, a few tips on what you need to know for constitutional law!

I. Equal Protection and Due Process are different. Sure, they overlap a lot, but you absolutely need to understand the difference. When we classify people, by any classification (race, alienage, hair color, profession) we are in equal protection territory. If, however, you are dealing with something that applies to everyone, and is a “right”, we are dealing with Substantive Due Process (ie, abortion). Sure, there can be overlap – with the issue of same sex marriage, we have equal protection issues (sexuality) and rights (marriage), but you STILL have to take one issue at a time.
II. Know your scrutinies. Don’t paraphrase them, know them, memorize them, tattoo them on your forehead. Strict scrutiny means that the government has the burden of proving the statute is narrowly tailored to a compelling government interest. Intermediate scrutiny means that the government has the burden of proving that the statute is substantially tailored to meet an important government interest. In rational basis the plaintiff has the burden of proving that the statute is NOT rationally related to a legitimate government interest. Know who has the burden, make a chart to when these apply and memorize it.
III. Don’t dismiss an issue. A lot of my students fail to bring up certain issues because they think the plaintiff will not prevail. This is not a good idea. For instance, they see someone classified based on hair color, correctly assume that, in that case, rational basis would apply, then never bring up equal protection since the government would most likely win. This may be very true, however, I am almost certain your professor STILL wants you to bring up the claim, and explain WHY the plaintiff would not win.
IV. Congress can’t do anything it please. Know that Congress has limited powers, namely the power to regulate interstate commerce and the power to tax and spend. If you see a fact pattern where Congress is acting, make sure they actually have the power to do so.
V. Don’t invent rights. We honestly don’t have that many, so don’t make them up. I would make a chart, outlining the rights we DO have (the fundamental rights, like the right to privacy, to marry and to vote) and then highlight those rights with examples from cases you read in class. Don’t assume we have rights that were NOT mentioned in those cases.

Above all else, do not be afraid to ARGUE. That is mostly the point of training to be a lawyer!