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Tips for Constitutional Law on the Multistate Essay Exam

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Tips for Constitutional Law on the Multistate Essay Exam

Up next in our tips for the MEE series is tips for Constitutional Law on the Multistate Essay Exam.  When thinking about Constitutional Law on the Multistate Essay Exam, you should consider two questions: how is it tested? And how often is it tested?  In the last 10 years (20 administrations), we’ve seen Constitutional Law on the Multistate Essay Exam only 7 times.  However, the NCBE tends to put Constitutional Law on the Multistate Essay Exam a little more frequently as of late.  In the last 9 administrations, Constitutional Law has come up 4 times.

Tips for Constitutional Law on the Multistate Essay Exam

Although this subject is not too common, that’s not to say that you should deem it too rare to be worth your time!  Seeing Constitutional Law on the Multistate Essay Exam is still a very viable possibility.  These statistics should help you determine how much to study for the subject, not whether to study for it at all.  So, spend the most time on the subjects that are the most likely to come up.  But you should not skip over any of the potential subjects when preparing for the exam!

So, here are the most commonly tested topics in Constitutional Law on the Multistate Essay Exam:

Interstate Commerce

Remember that Congress has the power to regulate interstate commerce.  This includes the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, or anything that has a substantial effect on interstate commerce.  In contrast, states are prohibited from discriminating against or unreasonably burdening interstate commerce.  This is known as the dormant commerce clause.  A question in Constitutional Law on the Multistate Essay Exam might ask you to evaluate whether a state’s law violates this doctrine.  If a law discriminates against interstate commerce, it is invalid unless the state can show the law was necessary to serve a compelling state interest an there is no reasonable non-discriminatory alternative.  If the law merely burdens interstate commerce, it is valid only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.

State Action and the 1st, 14th, and 15th Amendments

If you see a question on Constitutional Law on the Multistate Essay Exam where a citizen is trying to sue under the 1st, 14th, or 15th Amendments, there must also be some sort of state action.  These suits typically involve free speech, due process, equal protection violations, or voting rights issues.  To sue, the plaintiff must find a government actor or an action fairly attributable to the government.  State action is present when a state passes a law, when a state permits its officials to take action, when a private actor is performing a traditional and exclusive government function, or when private action is closely controlled by the state.

Equal Protection Clause Standards of Review

Another major topic in Constitutional Law on the Multistate Essay Exam is the equal protection clause.  There are three potential standards of review that a questionable law could have to meet:

  • Strict Scrutiny: the government must prove that the law is narrowly tailored to achieve a compelling interest. This is a very hard standard to meet and the government usually loses.  This standard applies to laws involving fundamental rights, racial or ethnic discrimination, and alienage [term used by the examiners].
  • Intermediate Scrutiny: The government must prove that the classification is substantially related to an important government interest. This applies to laws that classify on the basis of gender or illegitimacy.
  • Rational Basis: The plaintiff must prove that the law is not rationally related to a legitimate government interest. The plaintiff typically loses these challenges.  This standard will apply to all other classifications that don’t fall into one of the above-mentioned categories.

Freedom of Speech

Finally, freedom of speech issues comprise a substantial subset of Constitutional Law on the Multistate Essay Exam questions.  In general, the government must pass the strict scrutiny test if it wants to regulate in a way that discriminates based on content or based on viewpoint.  The government only needs to meet the rational basis test if it seeks to regulate unprotected speech.  Unprotected speech includes speech inciting immediate lawless or violent behavior, fighting words, and true threats or words of conduct. Some kinds of speech are protected, but not quite to the same degree as content- or viewpoint-based speech.

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