Constitutional Law

Key Concepts to Know & How To Study for the MBE

Mastering the Constitutional Law questions on the bar exam can be one of the more challenging hurdles on the journey to a license to practice law, requiring thorough preparation, practice, and memorization.

Constitutional Law Breakdown by Topic, Weightage, and Tested Questions

Out of the 175 scored questions on the Multistate Bar Exam (MBE®), there are approximately 25 Constitutional Law questions. The National Conference of Bar Examiners (NCBE®) breaks down Constitutional Law into four sub-topics on the MBE.

The four subtopics of Constitutional Law on the bar exam include: individual rights, the nature of judicial review, the separation of powers and the relation of nation and states in a federal system.

Here is a chart that lists how much each subtopic of Constitutional Law is tested on the MBE, historically:

Constitutional Law Topics % Tested # of Questions
Individual rights 50.00% 12-13
The nature of judicial review 16.70% 4-5
The separation of powers 16.70% 4-5
The relation of nation and states in a federal system 16.70% 4-5

As you can see from the chart, the first subtopic, "Individual Rights," is tested 50% on the MBE, with an average of 12-13 questions. That said, it would be a mistake not to master the other three subtopics of Constitutional Law since they make up an additional 50% of the Constitutional Law portion.

What does Constitutional Law Mean?

Constitutional Law refers to the rights carved out in the federal and state constitutions. The majority of this body of law has developed from state and federal supreme court rulings, which interpret their respective constitutions and ensure that the laws passed by the legislature do not violate constitutional limits.

The majority of constitutional legal issues have to do with the Bill of Rights. The Bill of Rights comprises the first ten amendments to the United States Constitution. They are as follows:

Amendment Bill of Rights
1 Freedom of Religion, Speech, and the Press
2 The Right to Bear Arms
3 Freedom of Religion, Speech, and the Press
4 The Right to Bear Arms
5 The Housing of Soldiers
6 Protection from Unreasonable Searches and Seizures
7 Protection of Rights to Life, Liberty, and Property
8 Rights of Accused Persons in Criminal Cases
9 Rights in Civil Cases
10 Excessive Bail, Fines, and Punishments Forbidden
11 Other Rights Kept by the People
12 Undelegated Powers Kept by the States and the People

Constitutional law also includes state constitutions that contain the same rights guaranteed under the US Constitution in addition to further rights established by the state. State constitution rights can never take away from federal rights.

Constitutional law involves the rules that define the roles, powers, and structures of different entities and includes rules that involve the checks and balances of power within the government. Many cases, including some civil lawsuits, can involve constitutional rights. Due to its ever-evolving nature, it's imperative that all prospective lawyers be intimately familiar with constitutional law.

Many legal professionals looking to make an impact on the world are sure to find themselves bumping up against constitutional rights, which is why constitutional law is of particular interest to activists. The complications that arise in constitutional law cases are often the result of the somewhat vague language and comparatively brief nature of the US Constitution.

The interpretation of the laws set forth by the Constitution is a constant point of contention. As such, there is a constant procession of new cases coming to trial as interpretations of the constitutions are modified, and rules are changed or added to adapt to modern society.

Because the importance of constitutional law cannot be understated regarding its impact on our society and because it is one of the seven subject areas covered on the MBE, it is a topic every aspiring attorney must master.

What does the MBE Measure?

One of several measures used by the board of bar examiners, the MBE is used to determine a prospective lawyer’s competence to practice law. Though each jurisdiction determines its own criteria regarding the relative weight it gives to the MBE and other components of the bar exam, jurisdictions that administer the Uniform Bar Exam (UBE®) give the MBE component a 50% weight. This means the MBE accounts for one-half of an examinee’s overall score on the bar exam in UBE jurisdictions.

Depending on your state, the bar exam pass rate is typically between 60% and 80%. That means that 20-40% of people who sit for the bar do not pass. The goal is to be in the 30 to 40 percentile or higher in each subject.

Many people who fail the bar exam do so by just a few points. That’s why preparing for the exam is so important when just a few wrong answers can be the difference between passing and having to retest.

Pass the MBE® the first time!
In-depth rationales for both correct and incorrect answers.
Illustration of how an offer must be communicated to an offeree.
Illustration of the applicability of Bill of Rights to states.
Illustration of use of writings at a trial.

Constitutional Law on the MBE: Subject Matter Outline

The MBE is a six-hour, 200-question multiple-choice examination developed by the NCBE to assess the extent to which one can apply fundamental legal principles and legal reasoning to analyze given fact patterns. Given in all U.S. jurisdictions (except Louisiana and Puerto Rico) the MBE is administered to examinees seeking a law license in the respective jurisdiction.

Of the 200 questions, 175 are scored and 25 are not. Because there is no way to know which of the questions will not be scored, it’s imperative that you take the time to think each one through thoroughly and answer them all carefully. The 175 scored questions are broken down into seven subject areas, each containing 25 questions.

The seven subjects that are tested on the MBE include:

  • Civil Procedure
  • Constitutional Law
  • Contracts
  • Criminal Law and Procedure
  • Evidence
  • Real Property
  • Torts

Added by the NCBE in 1975, there are 25 questions in the Constitutional Law section of the bar exam. Of the seven MBE subjects, the Constitutional Law section is considered one of the more challenging subjects, requiring deep, and somewhat more ambiguous analysis to reach the correct answer.

In order to prepare for constitutional law on the bar exam, it’s important to know how it is organized, which topics are covered, and how they are weighted. The NCBE has based the 50% of the questions on individual rights, while the remaining 50% of the questions will be divided equally among the Separation of Powers, the Nature of Judicial Review, and the relation of nation and states in the federal system.

The nature of judicial review

You will see about 4–5 questions on the nature of judicial review in Constitutional Law MBE questions. Article III of the Constitution limits the jurisdiction of the federal courts to "cases and controversies."

One concept that is easy to test is: what constitutes a case or controversy? First, a federal court cannot render an advisory opinion. There must be a dispute, and the federal court's opinion must mean something. (In other words, you cannot file a case asking what the court thinks about an issue unless a party actually will be affected by the outcome!)

Second, there must be standing. The plaintiff must have suffered or may reasonably suffer an injury in fact with harm that can be fairly traced to the defendant's actions. So, for example, a plaintiff cannot sue on a statute that was invented in the 1800s and has never been enforced because there is no likelihood of harm. The injury must also be redressable—a favorable decision would need to eliminate the harm or remedy the injury.

Third, the case must not be moot. A live controversy must exist at all stages of review. In the DeFunis v. Odegaard case, a man sued because he said the law school he applied to improperly rejected him based on their affirmative action policy. However, he was close to graduating from a different law school when the case got to the Supreme Court. So, the Court would not hear the case because it was effectively moot.

Finally, the case must be ripe. A plaintiff may not sue unless a real injury already has resulted or there is a strong likelihood of an actual injury. A plaintiff cannot file a lawsuit because he's "worried" that the legislature may pass a law that negatively affects the plaintiff in the future if there's not a substantial likelihood of an actual injury.

The separation of powers

You will see about 4–5 separation of powers questions in Constitutional Law questions. One of the most important things to remember is that Congress can only act based on its powers in the Constitution. All other powers are reserved for the states.

Many questions will ask you about an act by Congress and have you determine whether it is constitutional. You might see an answer choice that justifies a congressional action based on its "general police powers." This will be an incorrect answer choice! Congress does not have general police powers. Only the states do! (An exception to this rule is if there is no state to enact these laws, like in the District of Columbia, or on a military base, Indian lands, or federal land.)

There are a few other ways the NCBE will try to trick you. For example, remember that Congress does not have the power to act for the general welfare, so any answer choice that says this will be wrong! Congress only has the power to tax or spend for the general welfare.

Illustration of larceny.

Master legal rules easier with effective answer explanations and visuals.

Further, Congress also cannot justify a law by referring solely to the Necessary and Proper Clause. This clause allows Congress to do anything necessary and proper to carry out another enumerated power. Thus, the key is that the action must be tied to some existing enumerated power! It is incorrect if the answer choice refers to the Necessary and Proper Clause; it is incorrect!

The relation of nation and states in federal system

You will see about 4–5 questions on the relation of nation and states in Constitutional Law on the MBE. Remember that federal law is supreme and will preempt state law.

Federal preemption occurs:

  1. when there is an actual conflict between state and federal law,
  2. the state law prevents the achievement of the federal objective, or
  3. Congress has passed such extensive regulation in an area that it means to occupy the field and leave no room for state regulation in that field.

Another important concept to consider is the dormant Commerce Clause. States lack the power to discriminate against interstate commerce. Any state law that discriminates against or unreasonably burdens interstate commerce will be invalid. There are three exceptions to the dormant Commerce Clause and discrimination against interstate commerce:

  • The first is a common trick examiners use (and is really not an exception if you think about it). If you see Congress passing a law that is discriminatory in this fashion, this is permitted! Congress has full authority to regulate interstate commerce. The law will only be invalid if it was passed by a state.
  • Second, if the state acts not as a regulator but as a market participant or business, the dormant Commerce Clause will not apply. The state can do what it wants in these situations.
  • Finally, laws that advance or aid a government entity performing traditional government functions will be looked at more favorably. For practical purposes, this is harder to test on the MBE.

Individual rights

You will see about 12–13 questions on individual rights in Constitutional Law on the MBE. It is in this area of the subject where you can pick up the most points, so you should focus additional time on mastering these concepts! Something that examinees struggle with is understanding when to apply substantive due process, procedural due process, or Equal Protection Clause analysis.

Procedural due process states that the government cannot deprive a person of life, liberty, or property without due process of law. The government must give notice and an opportunity to be heard. Substantive due process is an issue when a law limits everyone's ability to engage in an activity. The level of scrutiny applied to the law depends on whether the law infringes on a fundamental right. If it does, strict scrutiny will be applied.

If it does not, a rational basis will be applied. Remember that economic regulations undergo rational basis and usually are upheld. Also, remember there are only two standards of review for a substantive due process claim (unlike equal protection, which has three standards of review).

The Equal Protection Clause is an issue when a person or class of persons is treated differently than others. The level of scrutiny in these situations will depend on the type of classification the government is creating or the right being infringed upon.

  • Strict scrutiny will be applied to all laws that implicate a fundamental right or that discriminate on the basis of race, ethnicity, or alienage.
  • Intermediate scrutiny will be applied to laws that discriminate based on gender or illegitimacy.
  • All other classifications will be analyzed under rational basis. Laws that undergo rational basis scrutiny usually are upheld! Keep this in mind. Any law that is discriminatory based on age, for example ("all judges must retire at 70"), will undergo rational basis scrutiny, and it's very difficult for the plaintiff to overturn these.

How to study for the Constitutional Law section on the MBE

A highly nuanced subject matter, the seemingly never-ending debate over the U.S. Constitution and its interpretation, makes studying for the Constitutional Law section of the bar exam unique and highly specialized.

The 25 Constitutional Law multiple-choice questions tested on the MBE can be difficult due to their length and numerous facts; therefore, it is critical to learn how to identify sources and types of judicial review, state and federal authority boundaries, due process rights, privileges and immunity rights, First Amendment rights, and equal protection rights as they apply to different groups.

Creating an initial Constitutional Law outline as you begin your studies and ensuring that your outline contains all rules, exceptions to those rules, and easy-to-memorize charts is an effective strategy. Throughout your studies, you can constantly adjust your outlines as you learn better ways to phrase rules and easier ways to remember the concepts.

How do you answer Constitutional Law questions?

We highlighted 10 tips and tricks to help make navigating the waters of the Constitution Law portion of the MBE a little less choppy:

Understand Equal Protection vs. Substantive Due Process

Mastering the ability to distinguish between Equal Protection and Substantive Due Process issues is critical to passing the MBE. While it can be easy to get these two constitutional provisions confused (because they both involve a rational basis and strict scrutiny review) with the proper analytical reasoning, the distinction becomes clear.

When determining whether a fundamental right is being infringed upon for all persons, substantive due process comes into play; whereas when a right is denied to only a particular class of persons, the right to equal protection is the provision at hand.

For equal protection questions, you will want to identify the type of discrimination, the level of scrutiny attached to that discrimination, and then apply that level of scrutiny. For easier memorization and recall during the exam, prepare a chart for your outline that identifies each level of scrutiny.

If you’re dealing with an equal protection issue, check out our Con Law Quick Tip: Equal Protection | UWorld Legal article for an easy-to-follow four-step approach to equal protection questions.

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.

Test Requirements Applicability
Lemon* Secular Purpose Default
Primary nonreligious effect
No excessive entanglement
Endorsement No appearance that government endorses religion Public displays or monuments (eg, holiday displays)
Coercion No forced conformity with religious belief or practice Public schools (convocation prayer)
Historical Longstanding tradition & historical foundation Historical monuments, symbols, or practices (eg, legislative prayer)

*Courts may apply strict scrutiny if government directly benefits/burdens religion

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:

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.

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.

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.

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.
The UWorld MBE QBank has detailed rationales for correct and incorrect answer choices.
Illustration of elements of promissory estoppel
Illustration of common examples of necessaries
Illustration of woman throwing a bottle at a man with explanation of transferred intent for battery.

Frequently Asked Questions

There are 25 Constitutional Law questions on the MBE.
The four constitutional topics covered on the MBE are: (1) individual rights (2) separation of powers; 3) the nature of judicial review; and (4) the relation of nation and states in a federal system
  • 50% – Individual rights
  • 16.7% – Separation of powers
  • 16.7% – The nature of judicial review
  • 16.7% – The relation of nation and states in a federal system

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