Constitutional Law: MBE Topics to Understand

Constitutional Law MBE Topics to Understand

Constitutional law was one of the more interesting law school courses, at least for me. The evolution of our founding document, and the cycles of interpretation it goes through, are fascinating from the standpoint of both an attorney and a citizen. Much of the material we’re forced to review can be quite dry, but between constitutional law and torts, you’ve got plenty of go-to topics for cocktail hour small talk.

The constitutional law mbe portion is somewhat slanted in favor of the large “Individual Rights” portion below, but you’ll need to know all the concepts mentioned. Here is a comprehensive outline of MBE testable subjects provided by the NCBE, with con law outlined briefly below.

I. Judicial Review and its Nature

The nature of judicial review is an important element to constitutional law. This includes understanding both the organization, and the relationship between, state and federal courts (overlapping somewhat with civil procedure). Congressional power to define and limit jurisdiction and the Eleventh Amendment / state sovereign immunity are also relevant.

Judicial review also includes the “case or controversy” requirement, in addition to the prohibition on advisory opinions, and the concepts of standing, ripeness, and mootness. You will also need to know how “adequate and independent state ground,” political questions, and justiciability relate to the overarching concept of judicial review.

II. Separation of Powers

The powers between the various branches of government is foundational to a proper understanding of constitutional law. You will need to know the powers granted to congress, including commerce, taxing, and spending powers, as well as powers concerning war, defense, and foreign affairs. Additionally, you’ll need to know of congress’ power to enforce the 13th, 14th, and 15th amendments, and other powers afforded to congress.

The powers granted to the president as chief executive, commander and chief, and the “take care” clause regarding faithful execution of laws are also relevant to the topic governmental powers. This also includes the president’s treaty and foreign affairs powers, and the powers of appointment and removal concerning officials.

Finally, the relationships between the branches of government are important to the concept of powers. This includes congressional checks on the executive branch, the presentment requirement and the president’s power to veto or withhold action, the “nondelegation doctrine” concerning legislatures and agencies, and executive, legislative, and judicial immunities.

III. The Relation of Nation and States in a Federal System

Intergovernmental immunities, such as federal immunity from state law and state immunity from federal law (including the 10th Amendment), is testable. Additionally, various federalism-based limits on state authority, such as the negative implications of the commerce clause, the supremacy clause/preemption, and the authorization of otherwise invalid state action, are all relevant for constitutional law mbe purposes.

IV. Individual Rights

Finally we have individual rights, a massive subtopic that accounts for approximately half of all constitutional law MBE questions. Individual rights apply mainly to what embodies a “state action,” a relevant concept for mbe purposes. The different types of due process, substantive due process (fundamental rights / other rights) and procedural due process, are also important.

Additionally, the fundamental rights applicable to equal protection under constitutional law is essential, as are the various classifications of heightened scrutiny and the concept of “rational basis review.” The takings clause, and other miscellaneous protections such as the privileges and immunities clause, contracts clause, unconstitutional conditions, bills of attainder, and ex post facto laws should be known as well.

First Amendment freedoms are also very important. This includes freedom of religion and separation of church and state, and their accompanying free exercise and establishment clauses. Freedom of expression, including content-based and content-neutral regulation of protected expression, are also relevant. Also, you’ll need to know about the regulation of unprotected expression, regulation of commercial speech, and regulations/impositions that can apply to public school students, public employment, licenses, or benefits based on exercise of associational or expressive rights. The regulation of expressive conduct and the concepts of prior restraint, vagueness, and overbreadth are also relevant.

Lastly, you’ll need to know about the constitutional protections and individual rights that apply to freedom of the press, and to freedom of association.

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