Constitutional Law

Master First Amendment Violations and Analyses

Deciphering First Amendment violations can be tricky because it covers a broad area of rights. To properly prepare for Constitutional Law Bar Exam questions on the MBE, it is critical to understand key components of the First Amendment, such as permissible speech regulations and the establishment clause.

Utilizing UWorld’s MBE QBank’s comprehensive answer explanations, you can study exclusive illustrations, charts, and graphs that can help you identify First Amendment issues as they arise. For example, in order to determine whether the government has crossed the line between church and state, you must be able to distinguish which test must be applied.

There are different analyses for different situations. Here is a straightforward chart from UWorld’s MBE QBank that can help you choose which test to apply when the government is taking an action that seems to cross the line between church and state.

Spotting the “General Welfare” Answer

Congress can do many things, but everything Congress does must be based on a power enumerated in the Constitution. Many MBE Constitutional Law Bar Exam questions will include an answer choice that says Congress can enact a statute for the general welfare. But this answer choice is often incorrect because Congress has only been empowered to act in the general welfare when taxing and spending.

As you practice Constitutional Law MBE questions, it’s important to be able to spot the incorrect general welfare answer by determining if Congress is either taxing or spending. If Congress is neither taxing or spending, and you see “for the general welfare” as an answer choice, you can simply ignore it.

Beware of the Taxpayer Standing Trap

One of the types of questions that cause confusion on the Constitutional Law portion of the MBE relates to taxpayer standing. The fact that taxpayers do not have standing is a recurring discussion in the study of law.

Preparers of the bar exam use this knowledge to trick test-takers into jumping to, what appears to be, a simple answer. But be careful! If you run across a sample case that involves a taxpayer bringing an action, don’t automatically jump to the “taxpayer has no standing” answer.

Don’t fall into this trap! Remember that there is an exception to this rule. A taxpayer can challenge the law if they believe the establishment clause is being violated. This is a prime example of why you need to take your time reading through each question and ALL of the answers before answering. Before making your choice, be sure that you’ve used sound legal reasoning. This is the bar exam. There are simply no shortcuts.

Determining the Constitutionality of Laws

When a Constitutional Law exam question asks you for an argument for why a particular law is unconstitutional, ask yourself whether the constitutional provision provides protection from the state or the federal government. However, if the question instead asks whether a law is constitutional, ask yourself what the actual content of the individual rights is. Asking yourself these questions will help narrow down your answer choices and point you in the right direction.

Know about highly tested issues

While knowing the law is essential, there are only 200 multiple choice questions on the MBE. This means that some areas of the law will appear more frequently than others. Focusing on the most frequently tested topics makes it easier to pass the MBE.

Of the most common law areas used on the bar exam, Constitutional Law is one of the subjects at the top of the list. And among the questions asked on the subject, 50% of Constitutional Law questions are based on individual rights.

When you’re preparing for the bar and even taking it, time is not on your side, so maximizing what little time you have needs to be a priority. If you focus on the most tested questions, you can use your studying time more efficiently.

Active Studying

Passive studying is the most common type of studying students use, but it’s also the least effective. Passive studying includes approaches like re-reading your notes and flipping through outlines or textbooks.

Instead of using passive study techniques, take an active approach instead. An active study approach includes re-writing your notes, asking yourself how law concepts apply to the bigger picture, and creating study games. You only remember 10% of what you read, so applying material is the best way to retain information for the MBE.

Pace Yourself While You Study

Preparing for the MBE can be a nightmare if you don’t pace yourself. Students who cram in late-night studying sessions generally achieve poor results. Using the following two methods will help you to avoid burnout and retain more information.

• The 90/20 Rule

  One of the best ways to avoid burnout is implementing the 90/20 rule, which encourages students to take breaks. The 90/20 rule takes into account the average person’s attention span. On average, after 60-90 minutes, a person’s ability to process information declines because glucose (the brain’s fuel) stores in the brain are depleted. To avoid this and replenish lost glucose, take a 20-minute break between each 90-minute studying session to stay sharp.

• The Pomodoro Method

  An alternative to the 90/20 rule is the Pomodoro method. Like the 90/20 rule, this method accounts for short attention spans, allowing for time to rest while studying.

  Step 1 - The first step is to set a timer with an alarm for 25-30 minutes

  Step 2 - If a distraction enters your mind during the 25-30 minute session, take out a notepad, and write it down. Describe what distracted you, why it distracted you, and why it was on your mind. Then, resume studying.

  Step 3 - Once the alarm rings, give yourself a checkmark and take a 5-minute break. During your break, grab a cup of coffee, stretch, or meditate.

  Step 4 - When you hear the alarm sound for the fourth time, you’ve completed four Pomodoros. At this point, it’s time for a thirty-minute break before you get back to studying. You can repeat these steps as often as you’d like.

The 90/20 rule and Pomodoro method are excellent tools to keep burnout at bay while studying.

One Concept at a Time

Taking practice exams and working on practice questions is a great way to prepare yourself for the big day. Use your time wisely, breaking down every question to find the answer. When you’re starting, we recommend starting slow, taking it one question at a time. Even if it takes you three hours to get through six questions, having an understanding of those questions will help you on practice exams and on the real thing.

Practice and Pace Yourself

There are 200 multiple-choice questions, each with four answer options. Take your time to eliminate the answers that are most clearly incorrect to narrow down the answers. Be advised that many answers look almost identical, differentiated by only one word or two, so take your time to read the answers thoroughly to avoid making a mistake.

Dividing the 200 questions by six hours, test-takers of the MBE have roughly one minute and forty-eight seconds to answer every question. Instead of getting stuck on one question, narrow your options down and pick the answer that makes the most sense. If you focus on a question for too long, you’ll run out of time to complete the rest. So, if you don’t know the answer, move on and don’t look back unless you have time leftover.

• Multiple Choice Strategies

  Two hundred multiple-choice questions can get overwhelming. When you have many answers to one question, the process of elimination becomes your best friend. If you want to pass the bar, narrowing your answers down is one of the best ways to improve your odds of answering each question correctly.

  On the MBE, most questions have two solutions you can eliminate almost immediately. Once you narrow down your options to two answers, you have a 50/50 chance on each question. While this won’t work every time, the odds are, you’ll get the answer right at least half the time.

• Work with a Tutor or Test Prep Company

  Even with these tips and tricks at your disposal, preparing for the MBE is not a feat for the faint of heart. Working with an MBE tutor or participating in an MBE test prep course can be of great benefit. Working with an MBE tutor is helpful because a good tutor can reduce your anxiety and increase your confidence. If tutoring isn’t your thing, you can also purchase an MBE prep course. These courses not only offer additional study materials that you might not otherwise have access to but they are designed to help students thrive by providing a variety of MBE Constitutional Law practice questions.

Constitutional Law Sample Questions and Answers

Now that you’ve read some of our tricks and tips, it’s time to put your knowledge to the test.

Let’s try to tackle a sample question from the UWorld MBE QBank:

• Question 1
• Question 2
• Question 3

A congressional committee investigated the pharmaceutical industry and found that the high cost of prescription drugs purchased and sold in the United States negatively impacted the nation's economy and the health of its citizens. In response, Congress passed a statute that regulates "the retail prices of every purchase or sale of prescription drugs in the United States."

A group of pharmaceutical companies challenged the constitutionality of this statute in federal court.

What is the strongest argument in support of the constitutionality of this statute?

1. Congress may enact statutes for the general welfare.
2. Congress may regulate the prices of all domestic purchases and sales of goods.
3. The Constitution grants Congress the power to regulate the interstate transportation of prescription drugs.
4. The purchases and sales of prescription drugs in the United States substantially impact interstate commerce in the aggregate.

Submit

• Explanation

The commerce clause gives Congress broad power to regulate interstate and foreign commerce. This includes:

• the channels of interstate and foreign commerce (eg, roadways)
• the instrumentalities of interstate and foreign commerce (eg, vehicles)
• persons and things moving in interstate or foreign commerce (eg, goods and services) and
• in-state activities that, singly or in the aggregate, substantially impact interstate or foreign commerce.

Since Congress's commerce power is broad, federal statutes are constitutional if there is any rational basis for concluding that the regulated activity substantially affects interstate or foreign commerce. This can be shown through express congressional findings.

Here, the federal statute regulates the retail prices of prescription drugs in the United States. Congress has the authority to regulate such products' interstate transportation, but this statute also regulates in-state purchases and sales (Choice C). Since the congressional committee found that the high cost of prescription drugs negatively impacted the nation's economy, it is rational to conclude that their aggregated in-state purchases and sales substantially impact interstate commerce. Therefore, this is the strongest argument to support this statute.

(Choice A) The taxing and spending clause empowers Congress to tax and spend for the general welfare. But regulating prices is not equivalent to taxing or spending.

(Choice B) Congress cannot regulate the prices of every domestic purchase and sale of goods since it cannot regulate purely in-state sales that do not substantially affect interstate commerce.

Educational objective:
The commerce clause empowers Congress to regulate (1) channels and instrumentalities of, (2) persons and things moving in, and (3) in-state activities that—singly or in the aggregate—substantially affect interstate or foreign commerce.

References:

• Gonzales v. Raich, 545 U.S. 1, 17 (2005) (explaining Congress's broad authority under the commerce clause).

A federal statute provides funds to private organizations that develop online learning materials for schools. A provision of the statute requires organizations that receive such funds to provide their educational materials to private, religious schools for use in their curriculum on the same terms that the organizations provide to public schools.

A taxpayer brought a suit in federal court to challenge the federal statutory provision as violating the establishment clause of the First Amendment. The taxpayer does not work in the education industry, nor does he have any children.

Does the taxpayer have standing to challenge the provision?

1. No, because the private organizations receiving the federal funds are not state actors.
2. No, because the provision did not cause the taxpayer to suffer a concrete and particularized injury.
3. Yes, because taxpayers have the right to challenge how Congress spends federal funds.
4. Yes, because the taxpayer's challenge is based on the establishment clause.

Submit

• Explanation

Article Ill standing (suing on one's own behalf)
General rule	Plaintiff must prove: injury-in-fact - concrete & particularized harm (actual or imminent) causation - harm traceable to defendant's conduct AND redressability - favorable judicial decision can remedy harm
Citizen	No standing as mere citizen
Legislator	Must prove personal stake in dispute & concrete injury to challenge constitutionality of government action
Taxpayer	Standing to challenge taxes owed-but not government spending unless: challenging legislation enacted under taxing & spending power AND legislation exceeds limits imposed by establishment clause

A federal court will not hear a case unless the plaintiff has standing—ie, a personal stake in the outcome of the case. To have standing, the plaintiff must assert an injury-in-fact that is concrete and particularized—a generalized grievance shared by many or all citizens is insufficient. Therefore, taxpayers lack standing to challenge the way the government spends tax dollars unless the taxpayer:

• challenges legislation enacted under Congress's taxing and spending power and
• alleges a violation of a specific constitutional limitation on this power—to date, the only limitation that the U.S. Supreme Court has found is the First Amendment establishment clause.

Here, the taxpayer is challenging a federal statute that provides funds to private organizations to develop online learning materials for schools (exercise of congressional spending power). He is specifically challenging the statutory provision requiring such organizations to provide materials to private, religious schools as a violation of the First Amendment establishment clause (specific constitutional limitation). The taxpayer therefore has standing to challenge this provision.

(Choice A) With the exception of the Thirteenth Amendment, the Constitution applies to government (ie, state) action. Private action is considered government action only if the state-action doctrine applies. But here, the taxpayer is challenging a federal law, so there is no need to determine whether the private organizations are engaging in state action.

(Choice B) The statutory provision did not cause the taxpayer to suffer a concrete and particularized injury since he does not work in the education industry and does not have children who may be affected by the provision. However, as a taxpayer, he has standing to challenge the provision as violative of the establishment clause.

(Choice C) Taxpayers have the right to challenge how Congress spends federal funds only when the challenge alleges a violation of a specific constitutional limitation on Congress's taxing and spending power (as seen here).

Educational objective:
A plaintiff-taxpayer has standing when his/her suit (1) challenges legislation enacted under Congress's taxing and spending power and (2) alleges a violation of a specific constitutional limitation on that power (ie, the establishment clause).

References :

• U.S. Const. art. III, § 2 (defining the case-or-controversy requirement).
• Flast v. Cohen, 392 U.S. 83, 102–04 (1968) (establishing the narrow exception to the rule against taxpayer standing).

A state legislature enacted a statute that allowed executors to claim a tax deduction for the sale of securities that were purchased by an estate after the decedent's death. After the statute was enacted, the state suffered a significant decrease in revenue because the number of estates that claimed the tax deduction was greater than originally projected. To recover this lost revenue, the legislature amended the statute to prevent an estate from claiming the deduction unless the decedent owned the securities prior to death. The amendment was made retroactive so that its effective date was when the statute was initially enacted.

Before the amendment was enacted, an executor sold securities that he had purchased for a decedent's estate after her death. The executor attempted to claim the tax deduction on the estate's tax returns but the state agency that processes tax returns denied his claim even though the estate had purchased the securities before the amendment was enacted. The executor has filed suit against the agency to challenge the constitutionality of the retroactive application of the amendment.

Is the executor's suit likely to succeed?

1. No, because the retroactive application of the amendment was necessary to achieve a compelling government interest.
2. No, because the retroactive application of the amendment was rationally related to a legitimate government interest.
3. Yes, because the amendment constitutes a bill of attainder.
4. Yes, because the amendment violates the due process clause of the Fourteenth Amendment.

Submit

• Explanation

The Fourteenth Amendment substantive due process clause prevents states from depriving persons of life, liberty, or property without adequate justification. Civil laws that retroactively impair an ordinary right—eg, the right to claim a tax deduction—must undergo rational basis scrutiny. Under this test, the law is presumed valid until the challenger shows that the law's retroactive application has no rational relation to any legitimate government interest.

Here, the executor challenged the amendment's retroactive application since it prevented the estate from claiming the tax deduction on its tax returns, which is an ordinary right. But since the state suffered a significant decline in revenue after the statute was enacted, the retroactive application of the amendment was rationally related to the state's legitimate interest in recovering the lost revenue. This means that the amendment does not violate the Fourteenth Amendment due process clause (Choice D). Therefore, the executor's suit is unlikely to succeed.

(Choice A) The retroactive application of a law that affects a fundamental right (eg, voting) is subject to strict scrutiny—ie, the government must prove that the law is necessary to achieve a compelling government interest. But here, the amendment's retroactive application affects an ordinary right and is therefore subject to rational basis scrutiny.

(Choice C) A bill of attainder is a legislative act that punishes a specified person or group without a judicial trial. But since the amendment applies to all persons who purchase securities, it is not a bill of attainder. Additionally, the amendment seeks to increase the state's revenue—not punish individuals.

Educational objective:
Laws that retroactively impair an ordinary right—eg, the right to claim a tax deduction—can be challenged on substantive due process grounds. Such laws are reviewed under rational basis scrutiny and generally are presumed valid.

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Take Away

There’s nothing simple about the bar exam. It is a test of your sound legal reasoning and your ability to think like a lawyer. This is especially true for Constitutional Law bar exam questions.

By taking the time to prepare, reviewing practice questions, creating a detailed outline for memorization, and taking the time to master all of the nuance and critical thinking that Con Law requires, the odds of passing will be increased. Armed with these tips and, yes, a few tricks, you’ll be on your way to a successful career as a lawyer.

In summary, read each question carefully to spot those answers designed to trick or mislead you. Here are a few protips for studying Constitutional Law on the bar exam:

• Take time to understand the difference between State and Federal Authority so you can be prepared to recognize the differences in answer choices made to trip you up.
• Know the exceptions and special rules.
• Create easy-to-memorize charts for quick recall during the MBE exam.
• Use these tips to recall how to approach each Constitutional Law question type on the MBE.