Constitutional Law MBE Prep
Constitutional Law on the MBE tests your ability to apply foundational principles of governmental structure and individual rights. The exam emphasizes the separation of powers between the federal branches, federalism and the limits of federal and state authority, and the protections afforded by the Bill of Rights and the Fourteenth Amendment.
First Amendment issues (free speech, establishment clause, free exercise) and Fourteenth Amendment topics (equal protection, substantive due process, procedural due process) together make up a significant portion of the tested material. The Commerce Clause, Spending Clause, and Necessary and Proper Clause appear frequently as the basis for congressional power questions.
State action doctrine is a threshold issue you must identify before analyzing any individual rights claim. Pay close attention to the standards of review: strict scrutiny, intermediate scrutiny, and rational basis. Getting the correct standard is often the difference between a right and wrong answer on the MBE.
High-Yield Topics
| Topic | Frequency | Tips |
|---|---|---|
| First Amendment Free Speech | Very High | Know the content-based vs. content-neutral distinction cold. Content-based restrictions get strict scrutiny; content-neutral time/place/manner restrictions get intermediate scrutiny. Memorize the unprotected categories: incitement, fighting words, true threats, obscenity, and child pornography. |
| Equal Protection Analysis | Very High | The standard of review determines the outcome in most questions. Strict scrutiny for race, national origin, and alienage (state); intermediate scrutiny for gender and legitimacy; rational basis for everything else. Look for the classification method: facially discriminatory, discriminatory application, or discriminatory purpose. |
| Substantive Due Process | High | Distinguish fundamental rights (strict scrutiny) from non-fundamental rights (rational basis). Fundamental rights include the right to vote, travel, privacy, marriage, contraception, and parental rights. Remember that economic regulations get rational basis review under substantive due process. |
| Commerce Clause | High | Apply the Lopez three-category framework: channels of interstate commerce, instrumentalities of interstate commerce, and activities with a substantial effect on interstate commerce. For the third category, ask whether the activity is economic. Also know the Dormant Commerce Clause: states cannot discriminate against or unduly burden interstate commerce. |
| Establishment Clause | High | Know the Lemon test (secular purpose, primary effect, excessive entanglement) as well as the endorsement test and the coercion test. School prayer and government displays are frequently tested. Recent cases have shifted toward a historical practices approach, but the MBE still tests traditional frameworks. |
| Procedural Due Process | High | Two-step analysis: (1) Is there a protected liberty or property interest? (2) What process is due? Apply the Mathews v. Eldridge three-factor balancing test: the private interest, the risk of error and value of additional safeguards, and the government interest. |
| State Action Doctrine | Moderate-High | Constitutional rights only protect against government action, not private conduct. Know the exceptions: public function doctrine, entanglement/joint action, and the Shelley v. Kraemer judicial enforcement exception. This is a threshold issue that many students miss. |
| Takings Clause | Moderate | Distinguish per se takings (physical invasion under Loretto, total economic deprivation under Lucas) from regulatory takings analyzed under Penn Central (economic impact, investment-backed expectations, character of government action). Just compensation is required for all takings. Conditions on land-use permits must satisfy Nollan/Dolan. |
| Spending and Taxing Power | Moderate | Congress can condition federal funds on states meeting certain requirements (South Dakota v. Dole), but conditions must be related to the federal interest, unambiguous, and not coercive. After NFIB v. Sebelius, withdrawal of all existing funds for noncompliance may be unconstitutionally coercive. |
| Privileges or Immunities / Privileges and Immunities | Moderate | Do not confuse the two clauses. Article IV Privileges and Immunities prevents state discrimination against out-of-staters regarding fundamental rights (but allows it if substantially related to a substantial state interest). The Fourteenth Amendment Privileges or Immunities Clause protects a narrow set of national citizenship rights. |
Common MBE Traps
Confusing Equal Protection with Due Process
Equal Protection challenges classifications that treat groups differently. Due Process challenges deprivations of liberty or property. When a law treats everyone the same but restricts a right, it is a due process issue. When a law treats groups differently, it is an equal protection issue. Many MBE questions include answer choices that mix these up.
Applying strict scrutiny to gender classifications
Gender classifications receive intermediate scrutiny (substantially related to an important government interest), not strict scrutiny. This is one of the most common wrong answers. Only race, national origin, and alienage (at the state level) trigger strict scrutiny under equal protection.
Forgetting the state action requirement
Many questions present sympathetic fact patterns involving private discrimination or private censorship. Without state action, there is no constitutional violation. Always check for state action before analyzing the merits of any constitutional claim.
Assuming Congress can regulate any activity that affects commerce
After Lopez and Morrison, the substantial effects category has limits. The activity must be economic in nature, and Congress cannot pile inference upon inference to find a commerce nexus. Non-economic activity with only an attenuated connection to commerce is beyond Commerce Clause power.
Mixing up the Dormant Commerce Clause and the Commerce Clause
The Commerce Clause is an affirmative grant of power to Congress. The Dormant Commerce Clause is an implied limit on state power. If a state law discriminates against interstate commerce, apply the virtually per se rule of invalidity. If it merely burdens interstate commerce, apply the Pike balancing test.
Selecting overbreadth or vagueness when facts show a valid application
Overbreadth and vagueness are facial challenges. If the question asks about the statute as applied to the specific defendant, focus on the as-applied analysis. MBE questions often bait you with an overbreadth answer when the correct answer is that the statute is valid as applied.
Ignoring the political question doctrine
Some separation-of-powers disputes are nonjusticiable political questions. If a question involves challenges to the impeachment process, the guarantee clause, or foreign affairs decisions committed to the political branches, the correct answer may be that the court will not hear the case.
Study Strategy
Begin with the structural Constitution: separation of powers, federalism, and the Commerce Clause framework. These provide the scaffolding for understanding how power is allocated. Then move to individual rights, starting with the standards of review because they determine the outcome of most questions.
Practice identifying the correct standard of review before reading the answer choices. On the MBE, the key analytical move is matching the right (fundamental vs. non-fundamental) or classification (suspect, quasi-suspect, non-suspect) to the correct level of scrutiny. If you get the standard right, the answer usually follows.
For First Amendment questions, create a decision tree: Is there state action? Is the speech protected or unprotected? Is the restriction content-based or content-neutral? What is the forum (public, designated, nonpublic)? Working through this tree systematically prevents careless errors.
Mnemonics & Memory Aids
Standards of Review
SIR: Strict scrutiny (compelling interest, narrowly tailored), Intermediate scrutiny (important interest, substantially related), Rational basis (legitimate interest, rationally related).
Unprotected Speech Categories
FOIST: Fighting words, Obscenity, Incitement (imminent lawless action), Speech integral to criminal conduct (solicitation), True threats.
Commerce Clause Categories (Lopez)
CIS: Channels of interstate commerce, Instrumentalities (and persons/things in commerce), Substantial effects on interstate commerce.
Procedural Due Process (Mathews v. Eldridge)
PEG: Private interest at stake, Error risk and value of additional safeguards, Government interest in efficiency.
Establishment Clause (Lemon Test)
SEE: Secular purpose, Effect is neutral (neither advances nor inhibits religion), Entanglement is not excessive.
Time Management Tips
- Con Law questions often have long fact patterns describing legislation or government action. Read the call of the question first to know what issue to focus on while reading the facts.
- If a question asks about the best basis for upholding a federal statute, check the Commerce Clause and Spending Power first, as these are the most commonly correct answers.
- Do not get bogged down in policy arguments. The MBE tests doctrine, not whether you agree with the outcome. Pick the answer that matches the legal framework, not the one that feels morally right.
- Flag questions involving complex standing or mootness issues and return to them. Justiciability questions can be time sinks.
Related Legal Rules
Congress has the power to regulate commerce among the several states, with foreign nations, and with Indian tribes. This clause is the primary source of federal regulatory authority over economic activity.
Congress may enact laws that are necessary and proper for carrying into execution its enumerated powers and all other powers vested in the federal government. This clause expands congressional authority beyond the express text of Article I.
The Constitution, federal laws made pursuant to it, and treaties are the supreme law of the land. State laws that conflict with valid federal law are preempted and unenforceable.
The Due Process Clauses of the Fifth and Fourteenth Amendments protect certain fundamental rights from government interference regardless of procedures used. Fundamental rights receive strict scrutiny; other liberty interests receive rational basis review.
When the government deprives a person of a protected life, liberty, or property interest, it must provide adequate procedural safeguards such as notice and an opportunity to be heard. The Mathews v. Eldridge balancing test determines what process is due.
The Fourteenth Amendment prohibits states from denying any person equal protection of the laws. The applicable level of judicial scrutiny depends on the classification used: strict scrutiny for suspect classes, intermediate for quasi-suspect, and rational basis for all others.
The First Amendment prohibits government from burdening the free exercise of religion. Neutral, generally applicable laws that incidentally burden religion receive rational basis review; laws targeting religion receive strict scrutiny.
The First Amendment prohibits the government from establishing religion or favoring one religion over another. The modern test focuses on historical practices and understandings, moving away from the Lemon test framework.
The three-part test from Lemon v. Kurtzman required that government action have a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement with religion. It has been superseded by the historical practices approach.
Content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny. The government must prove the restriction is narrowly tailored to serve a compelling government interest.
The Fifth Amendment prohibits the government from taking private property for public use without just compensation. This applies to physical appropriations of property by the government and requires payment of fair market value to the property owner.
Under Penn Central, a regulation that does not physically appropriate property or eliminate all economic value may still constitute a taking. Courts balance the economic impact on the owner, interference with investment-backed expectations, and the character of the government action.
States may not discriminate against citizens of other states with respect to fundamental rights and privileges, such as the right to pursue a livelihood. This clause prevents interstate protectionism against out-of-state citizens.
No state shall abridge the privileges or immunities of citizens of the United States. Effectively gutted by the Slaughter-House Cases, this clause protects only a narrow set of rights associated with national citizenship.
The Eleventh Amendment bars suits against states in federal court by their own citizens or citizens of other states. This sovereign immunity can be abrogated by Congress under Section 5 of the Fourteenth Amendment or waived by the state.
The Constitution divides federal power among three branches -- legislative, executive, and judicial -- to prevent tyranny and protect liberty. Each branch has distinct powers and checks on the others, and one branch may not encroach on or aggrandize power from another.
Government property is classified into three categories -- traditional public forums, designated public forums, and nonpublic forums -- each receiving different levels of First Amendment protection for speech activities conducted there.
Content-neutral regulations of speech may be upheld if they are narrowly tailored to serve a significant government interest and leave open ample alternative channels for communication. This is the intermediate scrutiny standard for speech regulations.
Government actions that prevent speech before it occurs carry a heavy presumption of unconstitutionality. Prior restraints, such as injunctions against publication or licensing schemes, are the most disfavored form of government restriction on expression.
Commercial speech receives intermediate protection under the Central Hudson four-part test: the speech must concern lawful activity and not be misleading, the government interest must be substantial, the regulation must directly advance that interest, and it must not be more extensive than necessary.