The MBE tests seven different subjects, including Constitutional Law. Like the other topics covered on the MBE, out of the 175 scored MBE questions, 25 of those questions will be Constitutional Law questions. Here’s the breakdown in questions that you can expect to see on exam day:
- Individual rights: 12-13 questions
- Separation of powers: 4-5 questions
- Federalism: 4-5 questions
- Judicial review: 4-5 questions
Constitutional Law questions can be tricky for bar exam takers because of the deep analysis involved in reaching the correct answer. Unlike some questions in Real Property or Evidence, more ambiguity can exist in reaching the correct answer on Constitutional Law questions. This post will help you tackle these questions so that you can continue improving your MBE score—and have confidence that you’ll pass the bar exam.
1. Your Overarching Approach
Even though we’re in a different substantive area, there are certain tactics for answering the Constitutional Law questions that are ubiquitous to success on the MBE. Just as you would with other MBE questions, review the facts in the scenario, read the call of the question, and then identify the issue or issues present in the question on your own. Answer the question just as you would answer it if it were an essay. By using this approach, you can quickly skip over answer questions that are there to distract you. And with Constitutional Law questions, there will be many answers that look and sound great, but don’t get to the heart of answer that the bar examiners are looking for.
2. Analyze the who, what, and how of the Question
Constitutional Law questions often give us complex fact patterns with many parties—parties that are trying to assert a power or maintain a given right. To set up your analysis, you can parse the fact pattern you’re given by looking at the who, what, and how. This will allow you to identify the parties involved, determine if you’re dealing with a “powers” or “rights” question, and how to resolve what it is the parties can and cannot do.
“Who” asks you to determine and label the parties. Are you dealing with Congress and the President? An individual citizen and the city? Labeling the parties will help you keep things straight when you move into looking at what the parties are doing.
The next two questions to ask are what the parties you’ve identified are trying to do and how they’re trying to do it. Is the party trying to assert a power? Or is the party trying to maintain a given right? When you’re looking at what the party’s powers are, ask yourself if the party is allowed to do what they’re trying to do under the Constitution. When the party is trying to maintain a given right, ask yourself how the right is being infringed and how the Constitution may or may not protect the party against that particular infringement.
The who, what, and how analysis will allow you to quickly orient yourself within the question and sift through the many Constitutional Law rules you’ve learned. The following tips will help you tackle both powers questions and individual rights questions.
3. Tackling a Constitutional Law Powers Question
Powers questions force us to ask how particular actors can constitutionally do what they are trying to do. When looking at the powers questions, they can be broken up into several categories: legislative powers, judicial powers, executive powers, and state powers. Let’s take a look at some of the most frequently tested powers topics in each category.
Legislative powers questions typically involve Congress’s power to tax and spend and its ability to regulate interstate commerce. Frequently tested judicial powers include questions surrounding justiciability—standing, ripeness and mootness, and the political question doctrine—as well as Eleventh Amendment limitations.
Frequently tested questions in the executive powers category fall into two main buckets: the President’s domestic authority and the President’s power over external affairs. Hot topics in the domestic authority category include the President’s veto power and ability to appoint and remove officials. Within the external affairs category, the bar examiners test us with questions about the President’s ability to represent the United States in foreign relations and enter into treaties.
Finally, you’ll also see many questions involving the state’s powers. These issues include power rights and restrictions under the Dormant Commerce Clause and the Privileges and Immunities Clause.
By quickly orienting yourself within the different possible powers issues, you can get to the heart of the issue presented in the question, analyze it, and get to the correct answer within the answer choices. But when analyzing any given powers question, don’t forget to address whether that power can also be limited by individual rights, which we discuss more below.
4. Tackling a Constitutional Law rights question
The individual rights questions, like the powers questions, test a number of topics within that category. To orient yourself within the rules, ask how the government is interfering with an individual right. There are four main issues in this category: Equal Protection, Due Process, the Takings Clause, and First Amendment. To answer these questions, you’ll need to get a solid handle on strict scrutiny, intermediate scrutiny, and rationale basis review.
The First Amendment is a particular favorite of the bar examiners. In this category, there are two distinct issues: freedom of speech and freedom of religion. Within the freedom of speech questions, you can further refine the issue by asking whether a party is attempting to limit the content of the speech or the manner of the speech. Likewise, freedom of religion questions can be further refined by addressing whether the law limits or supports the exercise of religion.
By following a methodical approach to answering the Constitutional Law MBE questions, you can sift through the answer choices and hone in on the correct answer. Use this approach while trying your hand at some practice questions, and see how it works for you. Good luck!