Constitutional Law
The MBE tests constitutional law: judicial review, federalism, separation of powers, and individual rights (due process, equal protection, First Amendment). Focus on standards of review and state action.
Judicial review and federalism
- Marbury v. Madison: courts may review acts of Congress. Political question doctrine limits review.
- Supremacy Clause: federal law preempts conflicting state law. Tenth Amendment reserves powers to states.
- Commerce Clause: Congress may regulate channels, instrumentalities, and activities substantially affecting interstate commerce (Wickard, Lopez, Morrison).
Individual rights
- Due process: procedural (notice and hearing) and substantive (fundamental rights). Strict scrutiny for fundamental rights; rational basis for economic regulation.
- Equal protection: strict scrutiny for suspect classifications (race, national origin) and fundamental rights; intermediate for sex; rational basis for others.
- First Amendment: speech protected unless incitement, obscenity, fighting words, true threats. Content-neutral time/place/manner restrictions must be narrowly tailored and leave open alternatives. State action required for constitutional claims.
Worked example
A city ordinance bans all signs on public property except traffic signs. A plaintiff challenges it under the First Amendment. The ordinance is content-based because it exempts traffic signs but not other signs, and it is not narrowly tailored. It likely fails strict scrutiny. Even if content-neutral, a total ban on signs is not narrowly tailored and does not leave open ample alternatives. The plaintiff must show state action (city ordinance) - yes. The ordinance is unconstitutional.
Traps
- State action: private conduct is not constitutional unless significant state involvement.
- Strict scrutiny is compelling interest and least restrictive means; intermediate is important interest and substantially related.
- Commercial speech gets intermediate scrutiny; false or misleading ads unprotected.
- Due process vs equal protection: substantive due process for fundamental rights; equal protection for classifications.