Constitutional Law Demystified
Understanding constitutional law and why it’s the first step in creating your attack outline
Constitutional law is how you interpret the Constitution. How you put into words the elusive meaning of constitutional prepared by those for whom English was a second, third, or fourth language. Those Anglo-Saxon roots were same roots of the Bill of Rights, and a lot of the Declaration of Independence. Today we’re reading and understanding them better than our forefathers. Basic constitutional law are all about civil rights, civil liberties, actions of government, and the separation of government… and how each of those apply to state and private actors. It’s about federalism, the separation of state and federal government. It’s about judicial independence and balancing the power between the different branches of government. For our purposes, it’s about civil procedure in how we view constitutional law. There’s a lot of overlap with this particular course of law and criminal law . In fact, you need facts to understand some criminal law. Grasping the basic concepts of constitutional law introduces you to the language of the law. Once you understand what the Supreme Court means by the word ‘viability’ in Roe v Wade, you can discuss the case. Why does this matter to you? Because when you understand the topic, the Supreme Court opinions are no longer just a bunch of random words. They have structure, they have a rhythm to them, they make sense. And you can see how the relevant facts of your exam fact pattern line up, or don’t, with those opinions. And once you can see the rhythm of an issue, the rhythm of the Supreme Court opinion, you can apply that rhythm to any fact pattern and develop the appropriate rules for your exam answer. First law school class, I know you think this doesn’t apply to you. You’ll figure out how to read law journals and case briefs, to figure out exactly what to say and how to say it in your paper to get the grade you want.
The Building Blocks of a Con Law Attack Outline
The first part of your outline — the "attack" portion — is, of course, your weapon against the questions on the exam. In this section, it doesn’t matter much how long it is, or how detailed. I prefer to write until one page is filled up (typed), but most people prefer to write and then stop after one page, so they know when its time to move on. Either way works for me. The point has less to do with the length or detail of the attack and more to do with sitting down and writing something. The more detailed the attack and the more questions and specific statutes that apply to the issue, the more likely it is that you are still writing on that particular essay 40 minutes after the clock strikes !:45. Consequently, the better your notes are, the shorter your outlines should be-in general, anyway.
The more detail you write here, the easier it will be when you get to the issue spotter. I generally try to address every question that was addressed in the attack section in the issue spotter, but I will disregard them where appropriate. That is, I don’t just restate the answers I’ve given; I usually expound on the same answer in different ways, using synonyms and changing sentence structure here and there.
The components of a con law attack are as follows:
- Identify the issue(s) being tested.
- State the relevant rules of law for that constitutional doctrine, as well as its exceptions. Draw on your memory of other areas of law too, as there might be something useful in what you have learned.
- Apply the entire set of rules to the facts at issue. Str like hell to tie in all of your rules, and all of the questions to which they are the answers. Many times, simply doing this step is enough to get you substantial points.
Examples of Issues and Analyses in Con Law
Some of you might be wondering, "How do I find the issues in a Con Law attack outline?" or, "How do I articulate them?" By examining a Constitutional Rights Casebook, I learned that if you can answer these three questions, you can pass any con law question:
- Who gets to decide?
- What do they get to decide?
- When do they get to decide it?
Let’s take a look at some examples:
Roe v. Wade
- Who gets to decide? The Supreme Court
- What do they get to decide? Whether a Texas law criminalizing most abortions was unconstitutional.
- When do they get to decide it? 1973
One way to identify an issue is by analyzing the Supreme Court’s role in a case. It is the highest court in the land; therefore, it has the final say in all decisions. However, the Supreme Court will not hear the case unless it is ripe and not moot.
Example 2
Bush v. Gore
- Who gets to decide? The Florida Supreme Court
- What do they get to decide? Whether the method of vote counting in Florida was constitutional.
- When do they get to decide it? 2000
This case is an example of a state supreme court making a decision that the United States Supreme Court believes is questionable. Because the U. S. Supreme Court is the highest court, it decided that the government should not have the right to count ballots in the state of Florida when it is against the United States Constitution.
Perhaps a case has gone from the district court to the federal court. You could also analyze the role of the federal courts in the case to find an issue.
Example 3
Shelley v. Kraemer
- Who gets to decide? The Missouri Supreme Court
- What do they get to decide? Whether a restrictive covenant in housing was unconstitutional in Missouri.
- When do they get to decide it? 1948, 1949 and 1951
This case went from the state district court to the state supreme court. The United States Supreme Court wouldn’t have heard the case unless the Missouri Supreme Court decided that the ban in housing was constitutional. The U.S. Supreme Court found that it was unconstitutional.
Applying Constitutional Rules and Principles
So now we focus on the possible application of the Constitution to the facts. This can be done in various ways depending on the nature of the claim and the constitutional provision at issue. For example, in a 1st Amendment case, you might consider freedom of expression for free speech or for religious expression. The 2nd Amendment might be implicated. For an 8th Amendment issue, the opposing party’s actions against your client could be cruel and unusual punishment, or even the improper execution of a contract; or if government, an improper taking without just compensation. A 14th Amendment issue might call into play equal protection or due process. A 4th Amendment claim – be it unreasonable search and seizure or the requirement for probable cause – may be implicated, or even excessive force cases could involve the 4th Amendment. A federalism issue under 10th Amendment might involve state power issues, with respect to what the state can do or forcing the state to do something. Of course, there’s also the US Constitution’s Contract Clause for contracts at issue in your case, or territorial jurisdictional issues. What if the US Constitution’s Privileges and Immunities clause or Due Process clause applies to an Alien Tort Statute claim?
First, assess which constitutional provisions apply to the facts. Then, as the case law directs, determine the application of various precedents (both case law and statutory) applicable to your discussion of the constitutional provisions – both positive and negative. Check to make sure those cases that are positive support your client’s position. If not, find alternatives if you can and distinguish those cases that are not favorable to your client’s position. If there is no alternative, you must include that case distinguishing it from the specific constitutional provisions at issue if you still believe the constitutional provision at issue applies favorably towards your client. Discuss these issues by: (1) laying out the PRECEDENTS, (2) supporting arguments in favor of you client with RESPONSES to refute/impeach the opposing view. For any rebuttal by the other side, (3) RESPOND to the other side’s argument with a REBUTTAL arguing in favor of your client again.
Organizing Arguments and Approach to Persuasiveness
An effective way to organize a legal attack outline is to use headings with multiple layers of indentation. You should label each major issue with Roman numerals, the headings under the issues with capital letters and the discussion of the law under each argument with lower case letters. So, for example, the numbering would go like this:
I. Major issue in the case
A. Sub-issue or argument
a. Detailed argument
b. Another detailed argument
c. A third alternative argument
It’s wise to put the entire argument under one major issue (I. above) and give it a simple heading — the main point you want to make about the argument. The discussion would be under a separate subheading (A. above) — what you want the court to understand about an entire section of the law.
The first indention (a. above) should be used to break down the discussion of the law into manageable pieces so you can make your argument — so it flows and makes sense and your brief isn’t a jumbled mass of parts. Everything must connect, but you can’t always go through every part of the law each time you apply it. You’ve made the point; now move on to another part of it. A different point.
Going with the outline, I’d suggest that you take each argument you intend to make in the brief and put it on a separate piece of paper. You’ll arrange the pieces in the right order later, when you assemble the first draft of the brief. This way, you can spread the briefs out on your desk and see at a glance where the holes or flaws will be and where you need to add somewhere to tie your argument together .
You may need to write each argument in several different ways. Because I’m a visual learner and writer, I often find that the best way to frame my arguments is to try it different ways. I’ll write one argument and then rearrange it in a different order. Then, I’ll re-write it from the perspective of the other side. I may do all the arguments this way, or only one or two, but it’s a helpful technique.
When I write briefs on both sides of an argument, I’ll sometimes write them both at the same time. I’ll put down everything I want to say on both sides of the argument, frame it both ways. This way, I don’t miss out on a good argument simply because I didn’t think of it in the right order or from the other side’s point of view. Sometimes, however, one side’s arguments are stronger than another’s and you’ll want to emphasize those strengths in your favor. There is an art in balancing all these considerations.
Be careful not to confuse the outline with your draft. In an effort to minimize mistakes and misunderstandings, the outline must be a flat outline – no indentation allowed. It just looks like an outline. Your machine-readable copy should be the outline you’ll cut and paste from but normally make little, if any, change to as you complete the brief. This way, you are writing your draft from your outline so the two documents match. Writing out one argument and cutting and pasting it into your draft, under the appropriate section, and then doing the same with the next argument, keeps you straight.
Common Con Law Attack Outline Mistakes – and How to Avoid Them
One common pitfall for con law outlines is not doing enough material before picking a fact pattern to work off of. It makes sense: you want to have seen the fact pattern before you start working on the outline, so doing the outline before the fact pattern seems counter-intuitive. Unfortunately, for con law, that doesn’t work well. It’s too easy to forget how common certain types of arguments are in con law. So you’ve seen one fact pattern with an issue, then you’re either not thinking about the issue when you see the next one, or you think about it and make a mess of your attack outline. Remember that one fact pattern won’t perfectly match the issues you’ll face on exam day. You need to be on top of all likely possibilities rather than narrowing your focus too soon. If the fact pattern does have that issue, you may struggle to analyze it if you haven’t practiced that issue as systematically as possible. One common argument mistake is covering the bare minimum standard of review at the start. Very often, people will list the standard of review for a question (say, rational basis) without ever addressing what level of scrutiny the case at hand falls under. Treat the issue as its own sub-issue, front and center. Explain why the standard is (or is not) strict/rational basis/suspect class/strict scrutiny/undue burden/etc. Then address why the issue in the fact pattern should be covered by this standard of review. If everything else went right, then you’ll have a nice surprise for you and your grader: a cleanly reasoned argument about why the test applies, not just a bare minimum of boilerplate. That’s super impressive. Another mistake that plays into this argument problem is giving conclusory sentences or short answers. It’s often tempting to stick to a formula answer that breaks down every answer into a two-sentence response, but con law doesn’t always lend itself to that approach. There’s a lot of detail and nuance to parse for these issues because they’re constantly evolving. Don’t write at the level of detail you think is "bare minimum." Go above and beyond this surefire way to fail (especially by leaving out key parts of the analysis or reasoning), and make sure you explain and bolster even obvious conclusions with clear reasoning to back them up. I know I’ve said this before, but people typically panic when they see a con law question and revert to tightening up their argument strategies to what seems like the formula answer. If you already have standards of review/levels of scrutiny memorized and slightly nuanced (that is, you understand how they’re going to apply to most issues), this is very good advice: On exam day, put your usual style under pressure by doing the outline or "run-through" like it’s your exam. Don’t get upset with your performance-just consider it practice.
Attack Outline Case Studies
A useful feature of the attack outlines is that they lend themselves to use in real-life legal situations. They can easily be used to analyze and attack government action, statutes, and administrative agency guidelines and denials. Here are a few case studies in which effective attack outline analysis produced good outcomes for clients:
First, in Harris v. CITY OF PHILADELPHIA, we filed a race discrimination challenge under 42 U.S.C. § 1981. The employment lawyer’s claim involved the Philadelphia Police Department’s failure to promote police sergeants to executive positions with greater responsibility. This could be analyzed using a chapter 1 attack outline (Chapter 1, section E, part 4) because there was wholly at stake a wealthy corporation (in Harris, 1st Dist. Court of App Case No. 05AP-1096, 2007-Ohio-6970, at ¶ 37) and the black applicant was able to establish that he was qualified for the job (Id. at ¶ 39).
Second, in Twenty-First Century Barbers, Inc. v. State Bd. of Cosmetology, we filed a professional licensure complaint challenging a state board’s denial of a professional license (Ohio Laws & Rules Ex. Bd., Compl. No. 13-029, Nov. 12, 2013). In that case, we were able to establish using a chapter 3 attack outline (Chapter 3, section E, part 2) that the state board’s rules had been written in such a way that the rules conflicted with each other and were therefore void (See id. at 3, 8-9) . We also established that the rules lacked narrow tailoring, meaning that they affected more conduct than necessary to address the state’s government interest (See id. at 3, 10). Finally, we established that the rules failed to substantially further the government’s interests (Id. at 4-5). As a result, the case settled favorably for all involved.
Third, in Hall v. NEWHARD, a civil rights lawsuit under 42 U.S.C. § 1983, we brought a First Amendment challenge to the school’s policy of restricting the freedom of speech of students’ parents who oppose the school’s allegedly unconstitutional search policy. The attack outline used in this case was a chapter 2 attack outline (Chapter 2, section C, part 1) because the restriction on the right was content-based. We won a summary judgment victory and were able to recover attorney fees for the parents.
Fourth, in Thomas v. DISTRICT OF COLUMBIA, we sued the U.S. Department of Education under the Office of Inspector General Whistleblower Act and successfully established that the Department of Education violated the law by retaliating against employees who blew the whistle on wrongdoing in the Department. We used a chapter 5 attack outline (Chapter 5, section C, part 4) and were able to leverage the Department’s motion to dismiss into a favorable settlement.
Of course, actual court filings have more detail and are always available for court review. However, the cases demonstrate the effectiveness of attack outline analysis.