Constitutional Law MBE Tip of the Day

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 14^th 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 14^th 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!