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Constitutional Law—MBE Attack Sequences

Step-by-step attack sequences for each Constitutional Law sub-topic, ordered most-tested-first. Run the sequence, lock the key rules, then drill the matching flowchart.

Where the points are

The zones this subject leans on hardest, and the traps that catch people.

Most tested
Justiciability—especially standing (injury, causation, redressability)—individual rights (equal-protection tiers, procedural and substantive due process, and the First Amendment), and federal powers (Commerce Clause, taxing and spending, and the dormant Commerce Clause).
Classic traps
Forgetting the state-action requirement before any individual-rights analysis; applying the wrong level of equal-protection scrutiny; treating content-based and content-neutral speech regulations the same; missing that a facially neutral law with discriminatory intent still triggers strict scrutiny.
  1. Justiciability & Judicial Power
  2. Congressional Power & Federalism
  3. Dormant Commerce Clause & Privileges/Immunities
  4. State Action & Due Process
  5. Equal Protection
  6. First Amendment: Speech
  7. First Amendment: Religion
1

Justiciability & Judicial Power

Attack sequence

  1. Standing Injury in fact, causation, and redressability.
  2. Ripeness Not too early: there must be a real, immediate threat of harm.
  3. Mootness Not too late: a live controversy must remain, unless capable of repetition yet evading review.
  4. Political question Courts will not decide issues textually committed to another branch.
  5. Abstention Federal courts may decline where unsettled state law could avoid the constitutional question.
▶Walk the Standing flowchart →
2

Congressional Power & Federalism

Attack sequence

  1. Find an enumerated power Commerce, taxing, spending, war, or necessary and proper as a hook.
  2. Commerce Channels, instrumentalities, or activities that substantially affect interstate commerce (economic activity aggregated nationally).
  3. Taxing and spending A tax must raise or be intended to raise revenue; spending conditions must be unambiguous and non-coercive.
  4. Tenth Amendment limit Congress may not commandeer states to enact or enforce a federal program.
  5. Supremacy Valid federal law preempts conflicting state law (express or implied).
3

Dormant Commerce Clause & Privileges/Immunities

Attack sequence

  1. Has Congress acted? If Congress authorized the state law, no DCC problem.
  2. Does the state law discriminate against interstate commerce? Facial or protectionist discrimination triggers heightened review.
  3. Discriminatory law Virtually per se invalid unless it serves a compelling interest with no non-discriminatory alternative, or the state is a market participant.
  4. Nondiscriminatory but burdensome Balance the burden on interstate commerce against the local benefit.
  5. Article IV Privileges and Immunities A state may not discriminate against out-of-state citizens as to fundamental rights (livelihood) without substantial justification.
4

State Action & Due Process

Attack sequence

  1. State action? The Constitution restrains government, not private actors, unless a private party performs a public function or is entangled with the state.
  2. Procedural due process A deprivation of life, liberty, or property requires fair process: notice and an opportunity to be heard.
  3. How much process Balance the private interest, the risk of error, and the government's interest.
  4. Substantive due process Laws burdening a fundamental right get strict scrutiny; otherwise rational basis.
  5. Takings A permanent physical invasion or a regulation denying all economically beneficial use requires just compensation.
5

Equal Protection

Attack sequence

  1. Classification Identify how the law treats classes of persons differently.
  2. Trigger the standard Suspect class (race, national origin, alienage) = strict; quasi-suspect (gender, legitimacy) = intermediate; all else = rational basis.
  3. Prove discrimination For heightened review of a facially neutral law, show discriminatory intent, not mere disparate effect.
  4. Apply the tier Strict: necessary to a compelling interest. Intermediate: substantially related to an important interest. Rational: rationally related to a legitimate interest.
  5. Burden Challenger bears the burden under rational basis; the government bears it under heightened review.
▶Walk the Levels of Scrutiny flowchart →
6

First Amendment: Speech

Attack sequence

  1. Is it protected speech? Incitement, fighting words, true threats, obscenity, and defamation receive little or no protection.
  2. Lesser-protected categories Commercial speech and government-employee speech get intermediate frameworks.
  3. Content-based vs content-neutral A content-based restriction triggers strict scrutiny; a content-neutral one triggers intermediate review.
  4. Public forum analysis In a traditional or designated public forum, time, place, and manner rules must be content-neutral, narrowly tailored, and leave open alternatives.
  5. Prior restraint and vagueness Watch for prior restraints, overbreadth, and vagueness as independent defects.
7

First Amendment: Religion

Attack sequence

  1. Free Exercise A neutral law of general applicability that only incidentally burdens religion is valid; a law targeting religion gets strict scrutiny.
  2. No belief penalty Government may not deny benefits or impose burdens because of religious belief.
  3. Establishment: preference A law preferring one religion over others gets strict scrutiny.
  4. Establishment: neutral aid Evaluate neutral programs by history, tradition, and whether they coerce or endorse religion.

A study aid in my own words, not legal advice—always confirm against your bar's materials.