How to Approach an MEE Con Law Question

The goal of this lecture is to give you some advice on how to approach con law questions on the MEE. If you haven't already listened to the lectures about general MEE advice, pause here and go do that first. Those lectures will give you a toolkit to prepare for, read, and write MEE answers in a way that will score maximum points in minimum time.

Now, I've reviewed all the con law MEE questions going back to 2008, along with the bar examiners' notes on grading them, and based on that, I've got some thoughts and pieces of advice on the topics you're most likely to see, the best way to read and prepare for a con law MEE question, and the things to keep in mind as you're writing.

Topics

Let's start with topics. A few things stand out in terms of which issues the bar examiners like to cover, and first things first, there have been a lot of First Amendment questions. A few of them have been religion questions, Free Exercise or Establishment Clause, but the vast majority have been straight-up freedom of speech. And that's not a huge surprise since there's a lot of free speech law to cover, and since some of that law doesn't really lend itself to the MBE's multiple-choice format.

It's just really hard to write a multiple-choice question about whether something is a public forum for First Amendment purposes, because there are so many maybes and caveats built into that analysis. Like a lot of constitutional law, it's hard to boil down to a single ABCD answer. But that makes for a good essay prompt, and the bar examiners seem to have taken advantage of that over and over on the MEE. So, if you're thinking about one single area of constitutional law to brush up on for the MEE, the First Amendment is probably the place to start.

Beyond that, there's a pretty broad range of coverage. There've been a handful of equal protection and takings questions, again, maybe because they lend themselves to essay questions. Things like applying heightened scrutiny or evaluating whether something is a public use can make for a nice essay, though they're hard to phrase as a multiple-choice question.

Outside of the rights context, the biggest remaining category is the federalism questions. These are questions about the scope of the federal government's power and about the relationship between the federal government and the states. Now, this includes questions about the Commerce Clause and Section 5 of the Fourteenth Amendment, which are among Congress's most important powers, but it also includes things like the Dormant Commerce Clause, which involves issues of horizontal federalism, that is, the relationship among the states.

Now, with the exception of some Eleventh Amendment issues having to do with state immunity from suit, I haven't seen much on the power of the federal courts, like questions about federal jurisdiction and so on. Now, that's not to say the bar examiners won't test that in the future, but if you're looking for low-hanging fruit, I wouldn't worry too much about it.

One topic that comes up on a fair number of questions, not as the overall question but as one of multiple prompts, is the issue of state action. Now, remember that the Constitution only restricts the government, not private actors. You generally can't make a First Amendment claim against a private business, for example, unless that business has become thoroughly intertwined with the government in some way. That's one of the relatively few bright-line rules in con law, and it makes for a pretty convenient little essay prompt.

Reading and Preparing

So that hopefully gives you a sense of what to expect on the MEE in terms of substantive doctrine and what you might want to study in order to be fully prepared. The next question is how you should attack the questions once you've got one in front of you.

As I mentioned in the general MEE lecture, I prefer to glance at the prompts before I start work on any MEE question. And that's especially valuable if it turns out to be a con law question, because the prompts will nearly always tell you that it's a con law question.

You'll be asked to evaluate whether something's constitutional or whether it complies with the First Amendment, or something similarly on the nose, and that's great because it primes you to start thinking about the relevant rules before you read the fact pattern, which will probably make it easier for you to zero in on the most relevant facts. And that's really great for con law questions, because if you don't have that priming, a con law question can look like something else.

It might start by describing someone who's engaged in illegal conduct, for example. So you start thinking you're dealing with a criminal law question and you start looking for facts that might be relevant to things like mens rea. But then it turns out that the question is really about whether Congress had power to pass the law that this person is violating. That's a constitutional question and it requires attention to a completely different set of facts.

Now, nearly all con law questions have two or three prompts to them. In some other areas of law, like maybe property or evidence, you might see questions with more than three prompts, but that's just really hard to do in con law because very few of the rules are straightforward enough that you could address more than three of them in 30 minutes.

And con law prompts are usually very closely related. Now, this is true for the MEE more generally, so no surprise there, but it's certainly a prominent feature in constitutional law and it comes up in a few different ways. You might get two prompts that ask you to apply alternative rules for constitutional rights.

Like, is this ordinance constitutional if it's content based? How about if it's content neutral? That's the same basic principle. It's free speech and content neutrality, but from two different angles, and, of course, each of those angles involves a different set of rules, so you're not going to be cut-and-pasting your answer from one down to the other. In fact, you're probably not going to reach the same conclusion for both. It's a fair bet that one will be constitutional and the other not.

For questions that have to do with the federal government's power to do something, like to pass a particular law, you'll often be presented with two alternative ways to do that same thing. So Congress might try to justify an action based both on the Commerce Clause and on Section 5 of the Fourteenth Amendment, which are two important enumerated powers that have very different scope and effect.

And the same basic thing applies here as for the rights questions. There'll be a difference between the alternatives, and probably only one of them will work. So maybe one prompt will ask about Congress trying to commandeer state governments into doing something, which is a no-no, and prompt two will ask about Congress giving states financial incentives to do that same thing, which is okay so long as Congress complies with the relevant restrictions on the spending power.

In terms of the fact pattern, you can mostly read just like you would for any other MEE subject. Now, it's worth paying special attention to the identity of the parties or characters in the fact pattern since constitutional law depends a lot on who is acting. Obviously, there's a categorical difference between state actors and private actors.

Only the former, that is, the government, are bound by the Constitution. But even among governmental actors, there's a big difference between, for example, the federal government and the states. Some rules, like the Commerce Clause, only really apply to the federal government, while others, like the Dormant Commerce Clause, only apply to the states.

And there are special rules, like the Eleventh Amendment, that kick in when you're trying to apply a federal statute to a state, as opposed to a private individual. All of which means that it's important to keep track of who is who in your fact pattern, since which rules apply depends on who is in play.

Now, you might come across con law MEE questions that feel somewhat familiar. If so, that might be because they're modeled on actual cases. I'd say that's true of maybe one in five of the questions I reviewed. Like, there will be a local ordinance on yard signs that's really similar to the one that the Supreme Court struck down in Reed v. Gilbert, or Congress is contemplating an anti-drug law very similar to the one that was upheld in Raich, or a state has created a gender-exclusive university program that looks like a version of the one struck down in the VMI case, United States v. Virginia.

If that happens, great. You'll have an inside track on the right area of doctrine and the relevant doctrinal rules. But still be sure to pay close attention to the fact pattern, because it might be different in ways that change outcomes. Like, maybe that sign ordinance has different exceptions than the one in Reed, or the new federal law lacks the same evidentiary basis as the one in Raich.

Writing

Con law questions generally fit pretty easily into the CRAC framework, so stick with that plan, the C-R-A-C, when you start writing. When it comes to conclusions, that's the C, keep in mind that a lot of constitutional rules set themselves up so that you can really come out either way, which means that you're probably not going to be graded based on whether you answered yes or no to a prompt asking about whether a particular government action is constitutional.

If you're applying intermediate scrutiny, for example, or Section 5' s congruence and proportionality test, there's likely to be plenty of leeway in either direction. You're going to be evaluated primarily based on your reasoning and how well you apply the rule to the facts, and not on whether you answer yes or no.

Now, there are some exceptions, of course. Con law does have a few bright lines. That state action requirement I mentioned earlier is one of them. If there's no state action, there's generally no rights claim. State sovereign immunity is another one. You can't sue a state for money damages without proper congressional authorization. And if the prompt involves one of those bright-line rules and the conclusion is clear, then, great. Feel free to say so, but don't worry if you're left with a maybe.

There's no real trick to writing your rule statements, that's the R in CRAC, in your con law essays. Lots of constitutional rules are pretty short and they might not take you more than a sentence to write. If you've got a multi-part rule, like, for example, the rule for time, place, and manner restrictions on speech, I think it's best to number each part.

So put in parentheses numeral 1: (1) the regulation must be content neutral; (2) it must serve a significant governmental interest; (3) it must be narrowly tailored to that interest; and (4) it must leave open ample alternative channels for communicating the speaker's message. Now, if you do that and put numerals and number each part, it'll make it easier for you to ensure that you address everything in the application section. And it'll also make it easier for your grader, which, of course, is always important.

One thing to keep in mind on the rule statements: make sure you focus on the rules as they stand today. When you took constitutional law in law school, you might've learned a lot about how the doctrine has evolved over the years, like how the Supreme Court takes a much different approach to the Commerce Clause today than it did in the 1930s.

And that stuff is great to know. It will help you understand the nuances of law when you're out there practicing. But for the bar, we're focused on current law. So you don't need to explain the doctrinal rules that the Supreme Court has tried out and rejected in the past.

If you're dealing with a federalism question, remember the fundamental principle that the federal government only has enumerated authority. That means it always has to be able to point to something in the Constitution giving it authority to act. If your prompt is about Congress wanting to pass a law, then there'd better be a basis for it in something like the Commerce Clause.

Lots of areas of constitutional rights law involve the tiers of scrutiny: strict scrutiny, intermediate scrutiny, and rational basis review. And those three tiers all have a similar two-part structure. Is the governmental interest important enough, that is, compelling, important, or legitimate? And is the law sufficiently tailored to that interest: narrowly, substantially, or rationally?

It's best to think about and write this as a two-part test. First talk about the governmental interest, and then talk about tailoring, which is usually going to be the more fact-intensive of the two parts when it comes to the application section.

One trap you want to be sure you avoid in your con law essays, and you'll probably remember this from learning con law in law school, is that con law questions can sometimes feel like policy questions. And it's really easy here, maybe more than in other areas of law, to slip into writing an essay about, for example, how unfair it is that State X discriminates against people on the basis of age or whatever.

And the reason that's a trap is that you're not being asked to write an op-ed or an evaluation of fairness. You're writing for the bar exam, so that kind of analysis only gets you points if it's part of your legal analysis, like State X has no legitimate state interest here and thus fails rational basis review. And I've seen it again and again where these questions are written so that your sense of justice can lead you away from the right answer.

Maybe what State X is doing is absolutely morally wrong and they should stop discriminating against the elderly or the young or whatever. But if our prompt asks about a person suing the state for damages on the basis of that discrimination, then whether it's morally wrong isn't the whole story. We need to be looking for a federal statute authorized by the Section 5 power that enables such a lawsuit.

Or if it's a private actor who's doing the discrimination, then no matter how horrible it is, the Constitution itself probably has no role to play because, again, the Constitution only applies to state actors.

Now, you've heard me say this before in the MEE general advice lecture, but I really want to emphasize it again when it comes to constitutional law: don't treat the analysis documents provided by the bar examiners as if they're model answers. Those are way, way more advanced and detailed than you need to aim for. And in particular, the constitutional law analysis documents have a whole lot of case citations.

Sometimes that can be helpful and sometimes it's worth it to cite a case, like if the essay is about a gender-exclusive university program, you might want to cite United States v. Virginia, which is a big gender discrimination case that's on point. But for the most part, focus on stating the rules rather than worrying about which cases establish them.

Finally, the prompts on constitutional law questions tend to be roughly evenly weighted. So if there are two, then each one's probably worth between 40 and 60%. If there are three, then each one's probably worth 30 or 35%. Lots of them break down 50/50, or 35/35/30, and again, I think that's a function of the fact that there aren't so many bright-line, easy-to-apply, clear conclusion kinds of rules in constitutional law.

That means that nearly any prompt is going to require a full CRAC treatment. And that's a good place for us to conclude, just with a reminder that the CRAC format is our default, and it, like the other general rules you've learned, should be your default starting position on con law questions, just like anything else for the MEE.