Every outline teaches equal protection and substantive due process together. Same era, same amendment, same three-tier machinery, usually the same chapter. Learn the tiers once, apply them to both.
The NextGen exam starred one and not the other.
That split is the most useful thing to know about Constitutional Law on this exam, and it is not the only place the starring cuts across how the subject is normally taught.
The starred map: seven of eleven
NCBE's Content Scope Outline marks each topic starred or unstarred. Starred means no resources and full recall. Unstarred means the lighter treatment — recognise the issue, or apply law provided to you in the question.
Con Law comes out 7 of 11 starred in our scope-aligned breakdown — a genuinely mixed subject, unlike Contracts at one end or Criminal Law at the other.
Starred:
| Topic | Territory |
|---|---|
| Judicial power & justiciability | Standing, ripeness, mootness, advisory opinions, sovereign immunity, jurisdiction-stripping |
| Legislative powers | Commerce, taxing and spending; enforcement of the Reconstruction Amendments |
| Federalism & preemption | Supremacy Clause, express and implied preemption, anti-commandeering, intergovernmental immunity |
| State action & procedural DP | The state-action requirement; entitlement to process, notice and hearing |
| Equal protection | Strict, intermediate and rational-basis classifications |
| Religion | Establishment and Free Exercise |
| Speech, press & association | Content regulation, forums, unprotected categories, commercial speech, prior restraint |
Unstarred:
- Executive powers & agencies
- Dormant Commerce Clause
- Substantive due process & fundamental rights
- Takings & ex post facto
Three observations that change how you'd study this.
The scrutiny pairing is split. Equal protection is starred; substantive due process and fundamental rights — privacy, voting, travel, the right to bear arms — is not. So the tiers themselves are recall material, but the fundamental-rights half of the doctrine that uses them is either issue-spotting or provided-resources territory. Do not infer from that that the tiers don't matter. Infer the opposite: they're starred because equal protection is where the exam intends to make you produce them from memory.
The commerce power is split too. Congress's affirmative commerce power is starred. The dormant Commerce Clause — the negative implication limiting state law — is not. Two halves of one story, on two different lists.
The First Amendment is the largest starred block in the subject. Speech, press and association is the single biggest topic in our Con Law curriculum, and religion is close behind. Together they are the densest starred territory here.
Confirm the mode for each unstarred topic against NCBE's own scope outline — but the shape is clear enough to plan around: your deck belongs to justiciability, the federalism machinery, equal protection's tiers, and the First Amendment.
Five traps the exam sets on repeat
- Justiciability is a gate, and the exam loves resolving nothing. Standing needs injury in fact, causation and redressability — all three. Then ripeness, mootness and its exceptions, and the bar on advisory opinions. Sovereign immunity and Congress's power over federal jurisdiction sit in the same starred topic. The classic distractor is a well-reasoned answer on the merits to a case that should never have been heard, and it is attractive precisely because you know the merits.
- State action is the threshold for every individual-rights claim. Constitutional rights run against government, so a private defendant means the analysis starts with whether the conduct is attributable to the state at all — with the exclusive-government-function route and entanglement as the ways in. Fact patterns featuring a sympathetic plaintiff and an obviously unfair private actor are frequently testing this and nothing else.
- Content-based versus content-neutral, then the forum. The regulation's character sets the standard before you touch anything else; a time, place and manner rule in a public forum is not judged the way a content-based restriction is. Then the unprotected categories are narrow and defined — "offensive" is not one of them — and commercial speech, government-employee speech and student speech each have their own frame. Vagueness, overbreadth and prior restraint are separate tools that can win a case on their own terms.
- Equal protection: the right tier, and the purpose requirement. Race, ethnicity, national origin and alienage draw strict scrutiny; gender and nonmarital children draw intermediate; everything else gets rational basis, which almost always means the law survives. Two traps: assigning a tier the classification doesn't earn, and forgetting that a facially neutral law generally requires discriminatory purpose, not merely disparate effect.
- Preemption and anti-commandeering are different doctrines. Preemption asks whether federal law displaces state law — expressly, by conflict, or by occupying the field. Anti-commandeering asks whether the federal government may compel a state to act at all, and the answer is generally no. Neither is the same as the spending power's conditional grants, which live in the starred legislative-powers topic and permit a great deal that direct commands would not. Distractors mix all three.
The religion clauses deserve honourable mention as a sixth: Establishment questions on displays, funding and accommodations, Free Exercise questions on the belief-versus-conduct line, and the genuine tension between the two clauses when an accommodation for one looks like an endorsement under the other.
How to drill it for this exam
Cards for the tests, volume for the triggers. The standing elements, the scrutiny tiers and which classifications earn them, the preemption varieties, the forum categories — element chains where every distractor is a nearly-right statement, which is what spaced repetition exists for. Recognising which doctrine a fact pattern triggers is a separate skill that only comes from mixed reps at the real 1.8-minute pace.
Practise the gate first, every time. Before analysing any Con Law question: is it justiciable, and is there state action? Making those two questions reflexive prevents the single most common category of error in this subject.
Give the unstarred four a real pass. Executive power, the dormant Commerce Clause, substantive due process and takings are unstarred, not absent. If the governing standard arrives as provided text, the skill is reading it fast and applying it accurately — a performance-task muscle. And you cannot issue-spot a takings problem you've never met.
Expect the issues bundled. A question set built on a municipal ordinance can run state action, forum analysis and equal protection across several items on one fact pattern. Drill them interleaved rather than chapter by chapter.
The materials, honestly
NCBE's content scope outline (free). The authoritative topic list with the stars that should decide your deck. Read it before buying anything.
NCBE's subject Sourcebook. A reference statement of in-scope doctrine from the people who write the exam — no practice in the real item types, and frequently free through law school libraries. Check yours first.
Our Constitutional Law volume ($9.99). Volume 3 of the series: 11 topics across 778 pages, 380 practice questions in the real NextGen formats with full explanations, and a 496-card flashcard appendix keyed to the starred topics — justiciability through the First Amendment, mapped to the NCBE scope with nothing outside it. The sample chapter is free, EPUB and PDF, no account, and worth reading first since ebook sales are final.
Drilling on the platform ($99 lifetime). The same content as a live question bank with analytics by topic — which is how you learn whether Con Law is your problem or whether standing is quietly costing you points while the merits analysis is fine.
The bottom line
Con Law on the NextGen exam is a mixed subject with a clear centre of gravity: justiciability, the federalism machinery, equal protection's tiers, and the First Amendment carry the recall load. The four unstarred topics — executive power, the dormant Commerce Clause, substantive due process and fundamental rights, and takings — are the ones a legacy outline drills as though they were starred.
Learn the gates until they're reflexive, put the deck where the stars are, and check the theory against yourself: the free sample chapter, or ten diagnostic questions at the real pace.
Frequently asked questions
- How many Constitutional Law topics are starred on the NextGen bar exam?
- Seven of eleven in our NCBE-scope-aligned breakdown, making it a genuinely mixed subject. The starred topics are judicial power and justiciability, legislative powers, federalism and preemption, state action and procedural due process, equal protection, the religion clauses, and speech, press and association. The four unstarred topics are executive powers and agencies, the dormant Commerce Clause, substantive due process and fundamental rights, and takings and ex post facto.
- Why is equal protection starred but substantive due process not?
- Most outlines teach the two together because they share the three-tier scrutiny machinery, but the exam separated them. Equal protection is starred, meaning you must produce the tiers and the classifications that earn them from memory with no resources provided. Substantive due process and fundamental rights — privacy, voting, travel, bearing arms — is unstarred, so the exam either tests recognition of the issue or supplies the governing standard. The tiers still matter enormously; equal protection is simply where you are expected to recall them cold.
- Is the dormant Commerce Clause tested on the NextGen bar exam?
- It is in scope but unstarred, while Congress’s affirmative commerce power sits in the starred legislative-powers topic. So the two halves of the commerce story are on different lists: the affirmative power is full-recall material, and the negative implication limiting state regulation is either issue-spotting or provided-resources territory. Give it one honest pass for shape rather than grinding it into flashcards, and practise reading a provided standard under time.
- What is the most common Constitutional Law exam mistake?
- Answering the merits of a case that should never have been heard, or one where no state action exists. Justiciability and state action are threshold gates: standing requires injury in fact, causation and redressability, and constitutional rights generally run only against government conduct. Distractors offering a well-reasoned merits answer are attractive precisely because the merits are the part you studied, so making both gates reflexive before any analysis prevents the largest single category of error in this subject.
- How should I approach First Amendment speech questions?
- Classify before you apply. The regulation’s character — content-based or content-neutral — sets the standard, and then forum designation shapes the analysis, so a time, place and manner rule in a public forum is not judged like a content-based restriction. The unprotected categories are narrow and defined, and "offensive" is not among them. Commercial speech, government-employee speech and student speech each have their own frames, and vagueness, overbreadth and prior restraint are separate doctrinal tools that can decide a case on their own.