Constitutional Law Overview: How to Issue Spot a Constitutional Law Essay

how do you issue spot a constitutional law essay in today's video I just want to give a big picture overview of constitutional law some things to think about as you're reading a constitutional

law a fact pattern to try to help you issue spot a little bit because from my experience where students have the most difficulty in constitutional law is actually issue spotting it's not that

any one analysis is extremely difficult or hard to learn as much as it is issue spotting students seem to have the most trouble with actually just identifying what issues to actually talk about so in

today's video we just want to give a big picture overview and I'm going to try to give you some things to think about as you're reading a constitutional law fact pattern and I have up here three

different categories and it's not perfect but I do think most of any issue you're going to cover on a constitutional law fact pattern or the facts that you're going to be dealing

with are probably going to fall into one of these three categories so as you read I would try to put different paragraphs or facts into the correct category you

know where are we in our constitutional law analysis big picture-wise okay but we can just jump into it and start with this first one this idea of the power of

the Fed so any time on a constitutional law fact pattern that you see Congress a federal court or the president taking any type of action you always want to

ask the question does this in does this either federal court does this blank right does this Federal Court does Congress or does the president have the

power to take this action because if they don't have the power to take this action and they're doing it well that's a constitutional violation that's going to be called unconstitutional so the

first thing that we're thinking about though and you can remember this easily as the three branches of government right separation of powers three branches of government we have the Judiciary we have the legislator and the

executive branch right the federal court system Congress and the president this is what we're looking for on a constitutional law fact pattern any of these things are taking action you have

to ask yourself where are they getting the power to take this action from the Constitution okay so with a federal court if we have a federal court deciding a case the first thing you

always want to ask in your head is do we have an 11th Amendment issue remember the 11th Amendment states sovereign immunity clause or a sovereign immunity

Clause right is going to prevent certain types of action from being brought against government agencies or government agents right there primarily we're dealing with when one citizen is

one citizen in one state is suing the government in another state or we have a citizen suing a state official for a violation of state law in federal court

the 11th Amendment is generally going to Bar those types of claims now there's some exceptions to that and we'll talk about that when we get into our discussion of the 11th Amendment I think that'll be our next video in the series

but just recognize there is the defendant a government agent or a government right because if so we might have an 11th Amendment issue right and that claim may be barred the court may

not have the power to take that action to hear this case right and then we have this idea of justiciability and justiciability is just the idea that

federal courts can't issue advisory opinions based on hypothetical fact patterns right federal courts can only decide real cases or controversies and

the way we usually determine this on a constitutional law back pattern is by asking whether the plaintiff has standing has the plaintiff suffered an

actual injury that the court can provide redress for right and can we Trace that issue or can we Trace that injury fairly to a defendant right that's what we're

going to ask when we're talking about federal court in standing does the plaintiff have an injury can we show that that injury is fairly traceable to the defendant and is it possible for the

court here to provide redress for this injury and if any of those three elements are not met then we're going to say it's not justiciable that plaintiff does not have standing therefore the

federal court does not have the power to take this action to hear and decide this case right because we want federal courts to avoid issuing advisory

opinions based on hypothetical fact patterns that's not what the Constitution gives the Federal Court power to do federal courts can only decide justiciable issues so when you

see a federal court deciding a case just ask yourself do we have an 11th Amendment issue and is this a justiciable issue right and those are going to be your two main things we want to think about issue wise for

determining whether the federal court has the power to take certain actions next we have Congress right Congress is very straight forward does Congress have the power to take this action so in a

constitutional law fact pattern what this is going to look like is usually Congress is trying to pass some type of legislation whether it's a law regulation a bill whatever it is right

you have to ask does Congress have the power to pass this law and to determine that you just look right at the Constitution Congress has to be able to

point to a specific power granted to them in the Constitution right and we have many different powers they can look at right we have the taxing power the spending power the enforcement of the

13th 14th and 15th amendment Powers but the big one that Congress gets is the commerce power right remember Congress has the power to regulate interstate and

foreign Commerce in today's globalized economy almost everything affects interstate commerce at some level now there's some limitations on that and we'll talk about the limitations of the

commerce power when we get to that video but the main thing to recognize here is Congress can regulate interstate commerce so if they can make make a law that somehow is regulating interstate

commerce almost in any way right then that is going to pass constitutional Muster that is they're going to have the power to take that action but if Congress is passing a law and they can't

point to any specific power that's giving them the ability to pass that law then it's an unconstitutional action being taken by

Congress right finally we have the President right so on a fact pattern if you're seeing the president of the United States take some type of action you have to ask yourself the same

question what part of the Constitution gives the president the power to take this action right and there's going to be certain enumerated powers right we have domestic powers and foreign powers

the president is commanderin-chief of the military right so he has the enumerated power to take specific military actions he can't declare war

without Congressional authorization but he can as commanderin-chief take certain military actions along with that you're going to have trade agreements with foreign Nations he can enter into trade

agreements with foreign Nations also treaty power right the president can negotiate treaties with foreign Nations to ratify those treaties again he needs

Congressional authorization but he does have that power to negotiate treaties right so there's going to be all kinds of things in the Constitution that are specifically granted to the president

those are his his powers under the Constitution now if you see the president taking an action that's not specifically granted in the Constitution we'll talk about those more when we get

to that video you're going to want to ask Youngstown right when you're trying to determine whether the president's action or within the scope of his constitutional Authority you're going to

want to think about Youngstown remember this Landmark case basically we had the Korean War steel workers in the United States go on strike so president

President Truman tries to take control of the production of certain steel mills it goes to court the Youngstown Court says you can't do that President and what it comes down to is this idea of

congressional authorization so if you see a situation where the president is taking action and you're not sure whether it's an enumerated power or not or where he's getting the authority

you'll just apply Youngstown and ask does the president have the authorization of Congress is Congress silent on the issue or is Congress explicitly telling the president not to

do this and based on that answer you're going to be able to come to a conclusion but we'll talk more about Youngstown when we get there the main thing to recognize here is our first bucket our

first category is simply is the federal court taking an action is Congress taking an action or is the president taking an action because if any of these feds are taking an action you have to

establish in your constitutional law essay where they are getting the power to take that action because if they don't have the power to take an action and they're doing it well that's a constitutional violation that's going to

be unconstitutional definitely will want to talk about that in your analysis the next bucket that we have is this idea of

federalism and Federalism is really just dealing with the relationship between the states and the federal government and the main fact pattern that we're

looking out for here is anytime that we have a state law being passed right anytime we have any type of state law or local regulation municipality any type

of law regulation being passed by a state we have to ask does this law conflict with the feds does it either conflict with a power is specifically

enumerated in the federal government or does it conflict with or directly conflict or indirectly conflict with something that already being regulated

by the federal government so the way this plays out in the constitution is there's going to be some federal powers as we talked about up here that are exclusively granted to the federal government right we talked about a lot

of powers exclusively granted to the President right the president has the exclusive power to negotiate treaties enter into trade agreements into uh any

of that right so to command and chief the military so a state isn't going to be able to come in and say hey we want to be commander-in-chief of the military that's explicitly granted to the

President right so the state governments can't pass laws to you know direct military actions it's not going to work that's exclusively a federal power now

the way that plays out though is that we also have to balance this the 10th Amendment so when the drafters wrote the Constitution right they granted all kinds of things to the federal government they said Congress you get

the taxing power and the spending power and president you get to be commander-in-chief and federal courts you get the Supreme Court and this and that and that and so they gave all these powers out to the federal government and

then they said you know what we think we covered everything that should be given to the federal government so if there's anything left over the states get to regulate those areas this is called the

10th Amendment right the 10th Amendment is the reserved powers anything basically not covered and given to the federal to the federal government then

gets to go to the states so this is why if you've ever been driving a cross state highways if you're in Texas and you're driving to Louisiana what happens often times right I don't know if this

is actually true but let's just say you're driving from Texas to Louisiana and Texas the speed limit is 75 you cross that state line into Louisiana and

the speed limit drops to 65 well that can happen because of the 10th Amendment nowhere in the constitution is it saying that states must keep their highways at

a certain speed limit so that power to regulate speed limits on highways is reserved for the states under the 10th Amendment so Texas can have a speed limit of 75 and Louisiana can have a

speed limit of 65 that's not interfering with anything granted to the federal government right but this leads to our discussion of the idea that it's not always so binary right it's not like

there's some things that are just granted to the federal government and some things that are exclusively the state there can be overlap right what happens if a state tries to regulate something in a small way that might

affect a federal la law it's not directly conflicting but it might be indirectly conflicting or it might just be touching on a federal law right what

happens there well we end up with the Supremacy Clause right which basically makes this very easy for us the supremacy clause says that the federal law is the supreme law of the land so

any direct conflicts with federal law or any indirect conflicts with federal law is going to preempt that state law a direct conflict would mean that it's impossible to comply with both the

federal and state law at the same time an indirect conflict would be where a state law is creating an obstacle that's really frustrating the purpose of the federal law so the way I like to

sometimes draw this to visualize it is any time that a state is going to go make laws you should imagine it's like a Minefield of federal law that they have

to avoid imagine that all of these little boxes I'm drawing are areas that are governed by federal law right all of

these are federal law areas think about the Federal Federal Aviation laws Federal this law federal that law right there's all these federal laws well if the states are going to come in and try

to make their laws they have to dodge these right they have to come in and they got to avoid touching any of those areas because if they come in and they

cross over into an area that's regulated by the federal government supremacy clause and preemption generally that law is going to be preempted so imagine that this state law comes in and it kind of

crosses over a little bit right here into some federal law territory well guess what that's going to be preempted by the supremacy causing this idea of preemption right so we just want to look

out when we're talking about federalism anytime the state is passing a law we have to ask is this conflicting with some area that's being regulated by the

feds or with some exclusively Federal power and we'll go into way more details obviously about all this when we get to these videos on federalism but just for now think of this little diagram right

here and think about in terms of as you're reading that constitutional law fact pattern if we have a state law first question should always be does

this conflict with the feds similar to this we also get the dormant Commerce Clause and this will be its own video but remember we said that there was this idea that the Congress has the commerce

power right to regulate at interstate commerce well dormant Commerce Clause is a constitutional principle inferred from this Clause right it's not actually in the Constitution but we infer it where

we're basically saying hey look Congress has the power to regulate interstate commerce so if the states are going to come in and navigate in areas that

haven't been governed so imagine that there the state law affects interstate commerce right but that's not actually conflicting with any federal law well a

state can do that but the dormant Commerce Clause puts some limits on that it doesn't let the states unduly bur interstate commerce or discriminate

against out of-state Commerce so if the state is going to come in and try to regulate interstate commerce but they're not actually directly or indirectly conflicting with any federal laws they

do it they're crafty right and they Dodge all of the federal areas well we still have the dormant Commerce Clause that's going to put some limits on them dormant Commerce Clause says okay States you're free to do that but watch out

right if you unduly burden interstate commerce it's going to be voided or if you discriminate against outof State Commerce right and there's some other

limitations there and um some exceptions but again we'll talk about all of these subjects in more detail when we get to those videos just trying to give you the overview right so but this is this

category of federalism and then finally individual rights right is our last kind of category to think about as your reading a constitutional law of fact pattern is usually the easiest right most students understand what the

individual rights are and if you took constitutional law and law school and your law school broke it up into two semesters you probably covered these two categories in your first semester and

this was probably your second semester right so individual rights are easy our main question is going to be not easy in terms of your actual analysis but easy

in terms of issue spotting your your big question is obviously going to anytime that you have a government regulation right government whether it's state or federal is passing some some some sort

of law you have to ask the question as to whether that law infringes on an individual's constitutional rights and there's a lot there but the big three are going to be due process equal

protection and Free Speech 14th 5th and First Amendment right and just to briefly overview these I guess do process can be broken up into procedural and substantive procedural due process

is just the idea that the government can't take your life liberty or property without due process and if you were watching all of our series on criminal procedure that we just wrapped up that

is where all of that is coming from you know your right to a trial and this and that this is why the police can't just arrest you on the side of the street for no reason and throw you in jail right we

have procedures due process guarantees you rights before the government can take your life liberty or property that's procedural due process substantive due process is the idea that

there's some rights that are so deeply rooted in our nation's tradition in history we consider them to be fundamental and if we're going to if the government is going to pass regulations

that infringe on those fundamental rights we're going to say generally that's going to be unconstitutional now we'll get into the discussion of the difference and standards of review between rational bases and strict

scrutiny when we get there but for now just recognize that you have some fundamental rights that things like the right to vot the right to Interstate traval the right to privacy which includes all kinds of stuff right we say

that these rights are so deeply rooted in our Nations history and tradition that they're fundamental and if the government is going to infringe on those fundamental rights generally it's

unconstitutional unless they can pass a strict scrutiny standard of review which we'll see as very difficult but we'll talk about that when we get to there right then we have this idea of the equal protection Clause right 14th

Amendment equal protection basically just require that if the government is going to treat people differently based on certain classifications with a law it's generally going to be

unconstitutional right the government can't pass laws that treat certain classes certain classifications of individuals differently and the major classifications we're thinking about our

race ethnicity it could be national origin it could be gender right we'll find that there's actually a finite number there of classifications that are going to be protected under this 14th

Amendment equal protection Clause although there's going to be tons of state law and federal law that protect other classifications we're not dealing with that in a constitutional law

analysis constitutional law it's really race national origin alienage but we'll talk about all the classifications but the idea here is if a government is

passing a law that treats different classifications of people unequally right equal protection Clause that could be a constitutional violation and finally

we get First Amendment Free Speech which honestly is such a massive topic it's it's almost impossible just to overview but obviously here you know this will probably be its own two or three-part

video series to talk about Free Speech but the idea here is right we want to encourage public discourse especially relating to political matters we want

people to be free to go out there and criticize their government right that's the whole point of the First Amendment so as long as you're not doing anything that's unprotected you know things like

obscenity or fighting words or threats and we'll talk about all the different things that are unprotected but as long as you're engaged in a protected speech right we generally want you to have the right to get out there and give that

speech to go out there and express yourself right because back in the old days you know you think about it back with King George or whatever you go out when you're being ruled by a king not usually going to be able to say negative

things about that King and have good things happen to to you so the whole point from the drafters with the first amendment is to encourage public discourse but we'll get there guys the the main idea with this video and I hope

this was helpful is just to try to give you some things to think about as you're reading a constitutional law fact pattern right try to put the facts and normally it'll really be the paragraphs

right put each paragraph of the fact pattern into its appropriate bucket is this dealing with is do we have a Fed taking a specific action you know are we trying to figure out where that action

the power to take that action comes from or do we have an issue with a conflict between state and federal law that could be federalism right you know do we have a state law being passed is it conflicting you know we're thinking

about the relationship between state and federal government then finally individual rights is usually pretty easy to see do we have some sort of you know fifth 14th First Amendment you know and there's some other ones we'll talk about

other first or first IND or other individual right protections but just try as you're reading and issue spotting to think about the big picture right cuz I know with constitutional law that's

often the hard part again though I'll wrap it up here guys I know you got a lot going on so if you found this helpful let me know down in the comments and I can do kind of overview videos like this for other subjects but I

really want to do this for constitutional law because I think issue spotting is so troubling for most students and a constitutional law analysis but with that guys I'm excited to jump into this with you I think in

our first video we'll get right into into this first category talk about power of the federal court 11th Amendment and justiciability I'm excited to jump into it with you guys but until

then I wish you all the absolute best and I'll see you at our next video