Chapter 7: How to Conquer Constitutional Law on the California Bar Exam

Constitutional Law on the California Bar Exam

Here, we tell you how to approach Constitutional Law on the essay portion of the California Bar Exam so you can maximize your points and increase your chances of passing! Constitutional Law is regularly tested on the California Bar Exam and is somewhat predictable in terms of how it is tested.

Constitutional Law on the California Bar Exam

1. First, know how Constitutional Law is tested. 

Constitutional Law does not appear on the essay portion of every California Bar Exam. Instead, it shows up about once every two to three California Bar Exam administrations. Constitutional Law tends to be tested on its own, although it is sometimes combined with Real Property or Criminal Law. (When Constitutional Law is combined with Real Property, takings and the substantive Due Process Clause tend to be tested.)

The good news is that you can apply general MBE law to a Constitutional Law essay question, as California law has not been tested on Constitutional Law essay questions.

2. Be aware of the highly tested issues. 

The State Bar of California tests certain Constitutional Law issues repeatedly. (We have a more detailed overview of these issues in our California Bar Exam One-Sheets.)

Some of the most frequently tested Constitutional Law issues on the essay portion of the California Bar Exam include:

• Standing: In particular, the examiners like to test standing of organizations or associations. Note that an organization can sue for an injury to itself and can also sue for injuries to its members if a member or members have standing, the member’s injury is related to the purpose of the association, and individual members are not required to participate in the lawsuit.

• The Dormant Commerce Clause: States may not discriminate against interstate commerce or unreasonably burden interstate commerce. Laws that discriminate against interstate commerce are struck down unless they can pass strict scrutiny. A law that burdens interstate commerce but does not discriminate against interstate commerce is upheld if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.

• The Due Process Clause and Equal Protection Clause standards of scrutiny: Under the Due Process Clause, strict scrutiny applies to fundamental rights. Fundamental rights are privacy rights (marriage, contraception and procreation, sexual conduct, obscenity, family relations, and abortion), the right to vote, the right to interstate travel, First Amendment rights, and the right to refuse medical treatment. Rational basis applies to all other rights.

• • Under the Equal Protection Clause, strict scrutiny applies to fundamental rights, race, and alienage [term used by the examiners] (for states—not the federal government—unless the political function doctrine applies). Intermediate scrutiny applies to gender and illegitimacy [term used by the examiners]. Rational basis applies to all other classifications.

• Free speech: This is a broad topic that is frequently tested. The examiners particularly like to test time-place-and-manner restrictions and general free speech principles. The government can place reasonable regulations on the time, place, and manner of speech. If the area where the speech is regulated is a traditional or designated public forum, the regulation must be content neutral, narrowly tailored to an important governmental interest, and allow alternative channels of communication (mnemonic = CNA).

• • If the area where speech is regulated is a nonpublic (private) forum, the regulation must be viewpoint-neutral and reasonably related to a legitimate governmental interest.

• The Establishment Clause and Free Exercise Clause
  • Establishment Clause: The laws must be neutral. Laws that favor one religion over another = strict scrutiny. Where the government legislation or program is neutral on its face, the Establishment Clause must be interpreted by “reference to historical practices and understandings.”

• • Free Exercise Clause: a state may regulate or prohibit the conduct or activity if the regulation is neutral and of general applicability.

3. Be aware of ways to approach highly tested topics. 

We recommend looking at past California Bar Exam essays so you can see how to approach the highly tested Constitutional Law issues.

For example:

• When free speech is an issue, you should give a brief overview of how the plaintiff needs to have standing and how a government actor must be found.
• When the Equal Protection Clause or Due Process Clause is tested, you should give an overview of all the levels of scrutiny before focusing on the appropriate one.
• When standing is tested, you should state the general requirements of injury in fact, causation, and redressability before addressing any specific issues of standing (e.g., standing of an organization).

• • Preparing a general approach for these highly tested issues will help you maximize your score and will save you time since you will not have to spend as much time thinking about what to write.

4. Practice!

The best way to get good at Constitutional Law on the California Bar Exam is to practice writing answers to essay questions. Not only will you become acquainted with how Constitutional Law is tested on the essay portion of the California Bar Exam, but you will also help boost your MBE score, since you will see 25 scored Constitutional Law questions on the MBE!

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Constitutional Law essay questions:

• July 2019 Constitutional Law essay (combined with Remedies): this essay covers standing of an organization, ripeness, mootness, the Free Exercise Clause, the Establishment Clause, and free speech (see essay question #2 on the exam).
• July 2018 Constitutional Law essay: this essay covers the Dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, the Equal Protection Clause, the substantive Due Process Clause, and the Contracts Clause (see essay question #5 on the exam).
• February 2018 Constitutional Law essay: this essay covers the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive Due Process Clause (see essay question #2 on the exam).
• July 2016 Constitutional Law essay: this essay covers procedural due process, free speech, standing, and the Eleventh Amendment (see essay question #4 on the exam).
• July 2015 Constitutional Law essay (combined with Real Property): this essay covers takings and the substantive Due Process Clause (see essay question #6 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 8: Contracts.

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