9xSound wrote:Similarly, con law exams don't typically test well-written, constitutional laws, or perfectly constitutional government conduct. I've been an attorney long enough to know this. You can find the oddball exception to this if you want, but it would be an anomaly. Con law exams test the students' ability to see and analyze bad law and unconstitutional conduct using the Constitution. Not all students grasp this. And while some professors may throw some curve balls now and then, I stand by my approach. One must of course respond to whatever the facts are, but the rule of thumb with any con law exam is that you should be looking for what's wrong with the law and why it's unconstitutional. If it isn't unconstitutional, so be it. But the starting point on con law exams is that your mission is to attack the law.
You've set this up in strange way. You are right, of course, that the typical constitutional law exam does not contain a hypothetical with "perfectly constitutional government conduct." But the typical constitutional law exam also does not contain a hypothetical with plainly unconstitutional government conduct. Typical issue-spotter law exams—in all subjects—include messy hypotheticals with hard questions.
Yes, a student answering a con-law exam question should make the arguments for why the law (or government conduct) is unconstitutional. But the answer won't be a good one unless the student also makes the arguments for why the government action is
constitutional. The point is to show that you understand the law well enough to explain why the question is hard. You need to argue from the perspective of the citizen and the perspective of the government. Approaching the question from only one side is a recipe for a median grade, if not worse.