Studying for the Constitutional Law portion of the Multistate Bar Exam (MBE) tends to be a love-hate experience for bar applicants. That’s due to some rules and exceptions being easy to grasp, while others are more complicated. The seemingly eternal debate about the U.S. Constitution and its interpretation (“is it a never-changing or a living document?”) should inform you how nuanced this MBE topic can be.
Constitutional Law questions make up 25 of the 175 scored multiple-choice questions tested on the MBE and can be difficult due to their length and numerous facts, many of which are added to distract or trick you. It is imperative 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.
We’ve put together some tips and tricks to help you navigate the Constitutional Law portion of the MBE. But before we dive in, below are the subtopics you can expect to encounter in Constitutional Law MBE questions, including percent tested and the number of questions:
|Topic||Percent Tested||# of Questions|
|The Nature of Judicial Review||16.7%||4-5|
|The Separation of Powers||16.7%||4-5|
|The Relation of Nation and States in a Federal System||16.7%||4-5|
Now, let’s get to those tips and tricks.
1. Differentiating Equal Protection from Substantive Due Process
Mastering the ability to distinguish between Equal Protection and Substantive Due Process issues is critical to passing the bar exam. It’s easy to get these two constitutional provisions mixed up because they both involve rational basis and strict scrutiny review.
But with the proper analytical reasoning, you can make the distinction. You can learn to determine whether a fundamental right is being infringed upon for all persons or if a right is being denied to only a particular class of persons. In the former case, substantive due process is in play, and in the latter, equal protection is.
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. Prepare a chart for your outline that identifies each level of scrutiny for easy memorization and recall during the exam.
Read our Con Law Quick Tip: Equal Protection | UWorld Legal article if you’re dealing with an equal protection issue for a straightforward four-step approach to equal protection questions. If you’ve got a substantive due process issue on your hands, check out this flowchart:
2. Detecting First Amendment Violations and Analyses
Another critical ability that would serve you well in preparing for Constitutional Law questions on the MBE is detecting First Amendment violations and figuring out those tricky First Amendment analyses, like permissible speech regulations and the establishment clause.
It’s no secret that the First Amendment can get complicated. It covers a deceptively broad area of rights, and the analyses applied to these rights are easy to mix up. That’s where UWorld’s exclusive flowcharts, illustrations, and graphs come in to help you identify First Amendment issues when you see them.
Here’s an example of one of our professionally produced visual aids:
Pretty neat, right? This flowchart can help you decipher those tricky situations where the government has restricted speech in some way. Here’s another for good measure:
This chart 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—and as you can see from the chart, there are different analyses for different situations.
3. Eliminating General Welfare
Congress can do many things, but everything Congress does must be based on a power enumerated in the Constitution. Many MBE Constitutional Law 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.
So, as you practice Constitutional Law MBE questions, do well to spot this incorrect general welfare answer by determining if Congress is either taxing or spending. If Congress is neither taxing nor spending, and you see “for the general welfare” as an answer choice, you can simply ignore it.
4. Understanding Taxpayer Standing
One of the many areas that can cause some confusion on the Constitutional Law portion of the MBE is taxpayer standing. That taxpayers do not have standing is a recurring discussion in law school. When they start studying for the bar exam, many students will see that a taxpayer is bringing an action on an MBE question and immediately go for the answer choice that states the taxpayer has no standing.
However, choosing this answer can be a trap as many students forget that there is an exception to this rule where a taxpayer can challenge the law if they believe the establishment clause is violated. Don’t fall into the trap—make sure to read all the answer choices before choosing the one you are confident is correct using sound legal reasoning.
5. Determining the Constitutionality of Laws
When a Constitutional Law question asks you for an argument for why a particular law is unconstitutional, ask yourself, “Does the constitutional provision protect from the states or from the federal government?” However, if the question instead asks whether a law is constitutional, ask yourself, “What is the actual content of the individual rights?” Asking yourself these questions will help narrow down your answer choices and point you in the right direction.
Now that you’ve learned our tips and tricks, it’s time to put your newly acquired knowledge to the test. Try solving this MBE Constitutional Law practice question courtesy of our UWorld MBE QBank:
At first glance, this seems like an instance where Congress has enacted a statute for the general welfare—Congress is regulating drug prices because the high cost negatively affects the economy and citizens’ health. But now we know that Choice A: “Congress may enact statutes for the general welfare” cannot be the correct answer. Let’s take a look at what our UWorld Legal content experts determined was the correct answer:
Getting Constitutional Law MBE questions right can be challenging, but equipped with these tips and tricks, you’ll know what to look for when answering these questions. If you take the time to prepare your outline for memorization properly, you will be able to answer even the most challenging question correctly. Creating a detailed outline for memorization may seem too time-consuming, but this exercise will help you tremendously throughout your studies, and you will thank yourself in the end.
- Take the time to flesh out the differences between State and Federal authority so you can recognize the differences in the answers choices meant to trip you up.
- Know the exceptions and special rules and create easy-to-memorize charts for quick recall during the exam.
- Read the question and all answer choices carefully to spot answers included to trick or mislead you.
- Rely on these tips and tricks to remember how to approach each Constitutional Law question type on the MBE.
Sign up for a free trial of the UWorld MBE QBank to help you study for the MBE. For more in-depth practice questions written by the NCBE®, prepare with the complete UWorld MBE QBank. With customizable exams, digital flashcards, vivid images, and a dedicated mobile app, we are confident our active-learning approach will help you pass the first time.