Constitutional Law on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Constitutional Law on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Constitutional Law Multistate Essay Exam question.
Note that Constitutional Law is regularly tested on the Multistate Essay Exam. It is tested, on average, once every year to every year and a half. It used to be the least-tested Multistate Bar Exam (MBE) subject on the MEE but it has been making a comeback and is now tested relatively equally with other subjects.
In this post, we tell you tips for approaching Constitutional Law on the Multistate Essay Exam and we reveal some of the highly tested issues in Constitutional Law questions.
Constitutional Law on the Multistate Essay Exam
1. First, be aware of how Constitutional Law is tested
Constitutional Law is about once every 1–1.5 years, as noted above. The subject of Constitutional Law can be divided into two sections—one is governmental powers (powers of Congress, the President, judiciary, federalism, etc.). The other is individual rights (First Amendment issues, the Equal Protection Clause and Due Process Clause, etc.). Constitutional Law Multistate Essay Exam questions have shifted from testing primarily First Amendment and individual rights issues to now primarily testing governmental powers.
Any topic is, of course, fair game. However, it is interesting to see the trends in Constitutional Law questions on the MEE. (The Board went from testing individual rights more and governmental powers less, to recently testing both topics more evenly.) Constitutional Law was combined with another subject for the first time in July 2019 (Civil Procedure).
2. Be aware of the highly tested Constitutional Law issues
The Examiners tend to test several of the same issues repeatedly in Constitutional Law questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Constitutional Law Multistate Essay Exam issues include:
Commerce Clause and Dormant Commerce Clause
This is a National Conference of Bar Examiners (NCBE) favorite! You should be well aware of Congress’s power to regulate commerce as well as the state’s power to regulate commerce in the absence of congressional regulation.
- Commerce power: Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a “substantial effect” on interstate commerce. (This is a very broad power!) However, Congress cannot “commandeer” states and force them to enforce federal laws. Congress can, instead, regulate directly through its commerce power or it can regulate indirectly through its taxing and spending power.
- Dormant Commerce Clause: If Congress is silent, states may regulate commerce. However, if a regulation discriminates against commerce, it is usually unconstitutional as it must undergo a strict scrutiny analysis. If it is nondiscriminatory on its face, it undergoes a burden-benefit analysis and is more likely to be held constitutional. Memorize these two standards of review. If you see a Dormant Commerce Clause issue, state both standards of review prior to applying the applicable one.
- Exceptions: be aware of when the Dormant Commerce Clause does not apply (e.g., when Congress is regulating, when the state is acting as a market participant, etc.).
Equal Protection Clause (EPC)
Memorize the standards of scrutiny under the EPC. For your own benefit, you should know these standards very well. This will help boost your score not only for the essay portion but also the MBE portion of the exam. You should also memorize the standards of scrutiny under the Due Process Clause, though so far the Equal Protection Clause has shown up more frequently on the Multistate Essay Exam (with issues involving age and gender).
- Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age, education, etc.
- Intermediate scrutiny: The government must prove the classification is substantially related to an important government interest. This applies to classifications regarding gender and illegitimacy.
- Strict scrutiny: The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest. (The government usually loses under a strict scrutiny analysis.) Strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the state (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public function doctrine applies or if the law regulates illegal aliens).
Unsurprisingly, free speech is heavily tested. You should be aware of:
- Speech that is considered unprotected (e.g., defamation)
- Time, place, manner restrictions
- Basic free speech principles (e.g., vagueness, overbreadth)
- Government action is necessary to find in order to sue for a free speech violation
In other words, learn the free speech portion of your Constitutional Law outline very well!
3. Memorize the important amendments and clauses
To build instant credibility with the grader, it is helpful to be aware of which amendment goes with which topic. For example:
- Commerce Clause: under the Commerce Clause, Congress has the power to regulate interstate commerce.
- Equal protection: the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.
- Free speech: The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. (State this whenever you see a free speech or other First Amendment issue.)
- Eminent domain: a restriction on takings arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.
Having a general idea of which amendment applies will build credibility with the grader. It is also a nice introduction to any of the above issues. Lastly, immediately having something to write when you see one of these topics tested can help boost your confidence on exam day.
4. Be sure you understand the trickier Constitutional Law issues that are tested
Memorization is important, but you also want to make sure that you understand the law so that you can accurately apply it. Many examinees have trouble with Dormant Commerce Clause issues, the Eleventh Amendment, application of free speech issues, and distinguishing between Equal Protection Clause and Due Process Clause issues.
Some of these examinees memorize the standards, but they do not properly apply them to the facts because they do not truly understand them.
If you find yourself unable to properly apply the law to the facts, do the following:
- Attend (or re-watch) your bar review course lecture if you found it helpful.
- Seek bar exam private tutoring for Constitutional Law (or consult with a study group, if you have one).
- Practice essays and MBE questions and closely analyze the answer explanations, while making notes to yourself of helpful examples.
- Review the topics you are having trouble with by doing a Google search.
Some students feel a false sense of confidence about Constitutional Law. Make sure that you actually understand some of the more nuanced issues—they tend to be tested most on the Multistate Essay Exam!
Practice is critical if you want to master Constitutional Law on the Multistate Essay Exam. As an added bonus, you may also see your MBE score improve if you practice Constitutional Law essays.
Here are some links to (free) Constitutional Law MEE questions and NCBE point sheets. (If you would like to purchase a book of Constitutional Law MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- Feb 2013 MEE: this covers First Amendment issues
- July 2012 MEE: Commerce Clause issues
- July 2011 MEE: this covers the Equal Protection Clause
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