Constitutional Law on the Multistate Essay Exam: Highly Tested Topics and Tips
Constitutional Law is regularly tested on the MEE. It is tested, on average, once every year or year-and-a-half. It used to be the least-tested MBE subject on the MEE, but it has been making a comeback and is now tested relatively equally with other subjects.
Here, we tell you tips for approaching Constitutional Law on the MEE 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 year or year-and-a-half, as noted above. The subject of Constitutional Law can be divided into two sections: (1) governmental powers (the powers of Congress, the President, judiciary, federalism, etc.) and (2) individual rights (First Amendment, Equal Protection Clause, Due Process Clause, etc.). Constitutional Law MEE questions have shifted from testing primarily First Amendment and individual rights issues to lately primarily testing governmental powers.
Constitutional Law was combined with another subject for the first time in July 2019 (Civil Procedure). Constitutional Law was combined with Corporations and LLCs in July 2020.
2. Be aware of the highly tested Constitutional Law issues
The examiners tend to test several of the same issues 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 highly tested Constitutional Law Multistate Essay Exam issues include:
Commerce Clause and Dormant Commerce Clause
These are NCBE favorites! You should be aware of Congress’s power to regulate commerce, as well as the states’ power to regulate commerce in the absence of congressional regulation.
- Commerce Clause: 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 state regulation discriminates against interstate commerce, it is usually unconstitutional as it must undergo a strict scrutiny analysis. If the regulation 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— when Congress is regulating, when the state is acting as a market participant, and when the law favors a government entity performing a traditional governmental activity (such as waste disposal).
Equal Protection Clause (EPC)
To perform well on an EPC MEE question, you need to memorize the standards of review under the EPC. This will help boost your score not only for the MEE but also for the MBE. You should also memorize the standards of review under the Due Process Clause, although so far, the EPC has shown up more frequently on the MEE, with issues involving age and gender.
- Strict scrutiny: The government must prove that the law is narrowly tailored (necessary) to achieve a compelling governmental interest. The government usually loses under a strict scrutiny analysis. Strict scrutiny applies to fundamental rights, racial or ethnic discrimination, and alienage (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).
- Intermediate scrutiny: The government must prove the law is substantially related to an important government interest. Intermediate scrutiny applies to classifications of gender and illegitimacy.
- Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government interest. The plaintiff usually loses under rational basis. Rational basis applies to every other classification—poverty, wealth, age, education, etc.
First Amendment free speech
First Amendment free speech is heavily tested on the MEE. Some highly tested free speech topics are:
- Government action required
- Content-based versus content-neutral speech restrictions: A content-based restriction seeks to forbid communication about certain ideas or content. Content-based restrictions are usually subject to strict scrutiny.
- Content-neutral restrictions do not seek to forbid the content of the speech and usually restricts the time, place, or manner that the speech may be expressed (see below).
- Time-place-and-manner restrictions
- Public forum versus private forum
3. Memorize the important Constitutional amendments and clauses
To build credibility with the grader, it is helpful to know 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.
- Eminent domain: a restriction on takings arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.
Stating the applicable Constitutional amendment/clause is a great way to begin your rule statement on a Constitutional Law MEE question. Also, knowing ahead of time what you will write when you see one of these topics tested can help boost your confidence on exam day.
4. Understand the trickier Constitutional Law tested issues
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 First Amendment free speech issues, and distinguishing between Equal Protection Clause and substantive Due Process Clause issues.
Some examinees memorize these concepts, 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, try the following:
- Attend (or rewatch) your bar review course lecture if you found it helpful.
- Seek a tutor for Constitutional Law (or consult with a study group, if you have one).
- Practice MEE 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 the more nuanced issues—they tend to be the most highly tested ones on the MEE!
Practice is critical if you want to master Constitutional Law on the MEE. As an added bonus, you may also see your MBE score improve if you practice Constitutional Law essays.
Here, we provide you with 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.)
- February 2016 Constitutional Law MEE: this MEE covers the Dormant Commerce Clause.
- February 2015 Constitutional Law MEE: this MEE covers the Equal Protection Clause under the Fourteenth Amendment.
- February 2013 Constitutional Law MEE: this MEE covers state action and First Amendment free speech.
- July 2011 Constitutional Law MEE: this MEE covers state action, the Equal Protection Clause, and the Eleventh Amendment.
Go to the next topic, Contracts and Sales.
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