Top 20 Constitutional Law Rules You Must Memorize for the Bar Exam

Constitutional Law is the bar exam's greatest hits album—these rules show up everywhere. From federal powers to individual rights, these 20 rules form the foundation of Con Law testing. Master them, and you'll dominate this heavily-tested subject.

Judicial Power & Justiciability

Rule #1: Standing Requirements

Three Requirements: (1) Injury in fact (concrete and particularized), (2) Causation (fairly traceable to defendant's conduct), (3) Redressability (likely to be redressed by favorable decision).

Third-party standing exception: Can assert rights of third parties if close relationship + third party unable to assert own rights.

Rule #2: Ripeness & Mootness

Ripeness: Case not ripe if no actual harm yet (exception: hardship + fitness for review). Mootness: Case moot if controversy resolved (exceptions: capable of repetition yet evading review, voluntary cessation, class actions).

Federal Legislative Power

Rule #3: Commerce Clause Power

Congress can regulate: (1) Channels of interstate commerce, (2) Instrumentalities of interstate commerce, (3) Activities that substantially affect interstate commerce.

Substantial effects test: Aggregation allowed for economic/commercial activity. Cannot regulate non-economic intrastate activity.

Rule #4: Spending Power

Congress can spend for general welfare and attach strings if: (1) Clear conditions, (2) Related to federal interest, (3) Not unduly coercive.

Anti-Commandeering: Cannot compel states to legislate or enforce federal programs.

Rule #5: Necessary and Proper Clause

Congress can use any means not prohibited by Constitution to carry out enumerated powers (rational basis test—means rationally related to legitimate end).

Federal Executive Power

Rule #6: Treaty Power

President makes treaties with 2/3 Senate approval. Treaties are supreme law (override state law, equal status with federal statutes—last in time controls).

Rule #7: Executive Privilege vs. Subpoena

Executive privilege presumptively valid but must yield to demonstrated specific need for evidence in criminal trial. No absolute privilege for presidential communications.

Federalism & State Power

Rule #8: Dormant Commerce Clause

States cannot discriminate against out-of-state commerce unless necessary to important state interest (strict scrutiny).

Nondiscriminatory laws valid unless burdens on commerce outweigh benefits (Pike balancing).

Market participant exception: State can discriminate when acting as buyer/seller in market.

Rule #9: Privileges and Immunities Clause (Article IV)

Prohibits states from discriminating against out-of-state citizens regarding fundamental rights (commercial activities, civil liberties).

Discrimination valid only if: (1) Substantial justification, (2) No less restrictive means.

Rule #10: Preemption

Federal law preempts state law if: (1) Express preemption, (2) Implied preemption (field preemption or conflict preemption).

Individual Rights - Substantive Due Process

Rule #11: Fundamental Rights (Strict Scrutiny)

Rights include: Travel, Vote, Privacy (marriage, procreation, contraception, family relations, private sexual conduct), Parental rights.

Test: Law must be necessary to compelling government interest.

Rule #12: Non-Fundamental Rights (Rational Basis)

Economic regulations and social welfare laws reviewed under rational basis: law must be rationally related to legitimate government interest.

Equal Protection

Rule #13: Suspect Classifications (Strict Scrutiny)

Race, national origin, alienage (sometimes) trigger strict scrutiny.

Test: Necessary to compelling government interest.

Affirmative action: Diversity can be compelling interest in education; must be narrowly tailored (race as plus factor, not quota).

Rule #14: Quasi-Suspect Classifications (Intermediate Scrutiny)

Gender and legitimacy trigger intermediate scrutiny.

Test: Substantially related to important government interest.

Gender: Exceedingly persuasive justification required; real differences cannot be based on stereotypes.

Rule #15: Other Classifications (Rational Basis)

Age, wealth, disability, sexual orientation reviewed under rational basis (highly deferential).

First Amendment - Free Speech

Rule #16: Content-Based vs. Content-Neutral Restrictions

Content-based: Subject to strict scrutiny (compelling interest + narrowly tailored).

Content-neutral: Time, place, manner restrictions valid if: (1) Narrowly tailored to significant interest, (2) Leave ample alternative channels.

Rule #17: Public Forum Doctrine

Traditional/designated public forums: Content-neutral TPM restrictions allowed; content-based restrictions need strict scrutiny.

Limited public forums: Can limit speech to forum's purpose; viewpoint discrimination forbidden.

Nonpublic forums: Reasonable restrictions allowed; no viewpoint discrimination.

Rule #18: Unprotected Speech Categories

Not protected: Incitement (likely to produce imminent lawless action), Fighting words (likely to provoke immediate violence), True threats, Obscenity (Miller test).

Obscenity test: (1) Appeals to prurient interest (community standards), (2) Patently offensive sexual conduct (community standards), (3) Lacks serious literary/artistic/political/scientific value (national reasonable person).

First Amendment - Free Exercise & Establishment

Rule #19: Free Exercise Clause

Neutral laws of general applicability are valid even if incidentally burden religion (rational basis).

Law targeting religious practice subject to strict scrutiny.

Cannot condition benefits on abandoning religious practice.

Rule #20: Establishment Clause

Lemon test: (1) Secular purpose, (2) Principal effect neither advances nor inhibits religion, (3) No excessive entanglement.

Coercion test: Government cannot coerce participation in religious activity.

Government aid to religious schools: OK if neutral and provides choice to beneficiaries.

Religious displays: Context matters; endorsement of religion forbidden.

Your Memorization Strategy

Week 1: Rules 1-5 (Justiciability & Federal Powers) Week 2: Rules 6-10 (Executive Power & Federalism) Week 3: Rules 11-15 (Due Process & Equal Protection) Week 4: Rules 16-20 (First Amendment)

Pro Tip: Con Law rules interconnect. Understand the structure: power + limits on power + individual rights.

The Bottom Line

Constitutional Law tests your understanding of government structure and individual liberties. These 20 rules cover the most frequently tested concepts and provide a framework for analyzing any Con Law issue.

Start memorizing with BarEssayMemo's Constitutional Law flashcards and make these rules permanent.

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