MBE Tip of the Day: Constitutional Law
Welcome to our MBE Tip of the Day series. This MBE Tip of the Day post focuses on constitutional law.
You will see 25 scored constitutional law MBE questions on the Multistate Bar Exam. In this post, we will review a constitutional law question together. Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice question that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each “MBE tip of the day” post covers one highly-tested area of substantive law as well as an important MBE strategy. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page. You can also review these MBE tips for FREE using the free subscription of our new MBE platform here!
MBE Tip of the Day Instructions:
Do your best to answer this constitutional law MBE question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue, rule, and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
A state legislature passed a law that required prospective attorneys who live out of state but seek admission to the state bar to pay double the licensing fee. The law is intended to reward and give preference to those who live and paid money to attend law school in the state.
Is the law constitutional as applied to an out-of-state citizen applying to be licensed in the state?
(A) Yes, because there is no discrimination with respect to a fundamental right.
(B) Yes, because the law is rationally related to a legitimate government interest.
(C) No, because the law discriminates specifically with respect to employment.
(D) No, because the law violates the Privileges or Immunities clause of the 14th
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Constitutional Law MBE Question
Subject: Constitutional Law
Legal Issue: Privileges and Immunities Clause of Article IV
Legal Rule and Analysis: The Privileges and Immunities Clause of Article IV holds that states cannot discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means to solve the problem. For the purpose of this clause only, employment is considered to be a fundamental right. Therefore, a state cannot discriminate against out-of-state citizens with respect to employment.
In this case, the state is clearly making it more difficult for out-of-state citizens to obtain their license to practice law within the state. This is characterized as discrimination regarding employment. Further, there is no such substantial justification for this law, which would need to amount to the resolving of some sort of grave economic and/or social ills caused by significant unemployment and/or population problems. Rewarding those who went to law school in-state is not a sufficient justification.
Conclusion: Therefore, the law is unconstitutional since it discriminates specifically with respect to employment.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
The answer choice (C) is therefore correct. (A) is incorrect because employment is considered a fundamental right for the purposes of a Privileges and Immunities Clause of Article IV analysis. (B) is incorrect because this is not the proper test to be used when we are applying the Article IV clause. The rational basis test plays no role in this question. (D) is incorrect because it identifies the wrong clause. The Privileges or Immunities Clause of the 14th Amendment guarantees that states cannot deny or interfere with the rights and privileges of being a citizen of the United States. In this question, we are focusing on a state’s favoritism of its own citizens with respect to employment, and this does not relate to the rights and privileges of being a United States citizen.
MBE Tip: The Constitution contains nuances across the document, and understanding the details is important. For example, this question required you to know the difference between a reference to privileges and immunities in Article IV and in the 14th Amendment. You also needed to know that employment is considered a fundamental right only for Article IV purposes (as opposed to due process/equal protection purposes). These little details seem minor, but knowing them can mean the difference between answering a question correctly and getting it wrong!
Key Takeaways and MBE Tips From Prior Posts
Takeaway for the Law: The Privileges and Immunities clause of Article IV holds that states cannot discriminate against out-of-state citizens with respect to fundamental rights unless there is a substantial justification and no less restrictive means to solve the problem.
MBE Tip: Understanding the seemingly minor nuances in constitutional law analyses can mean the difference between getting the answer right and getting it wrong!
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