MEE Subject Guide
Constitutional Law on the MEE: What to Know and How to Practice
Constitutional Law appears on roughly half of MEE administrations and tests your ability to apply frameworks like levels of scrutiny and First Amendment doctrine to new fact patterns. It is also tested on the MBE. Here is what to expect and how to prepare.
What the MEE Tests in Constitutional Law
Constitutional Law essays on the MEE typically involve government action that restricts individual rights or raises federalism concerns. The most heavily tested areas are the First Amendment (free speech, free exercise, establishment clause) and the Fourteenth Amendment (equal protection and due process).
Equal protection questions require you to identify the classification at issue (race, gender, age, or another category) and apply the correct level of scrutiny. Due process questions may test either substantive due process (fundamental rights, rational basis) or procedural due process (notice and hearing requirements). Knowing when each framework applies is critical.
The Commerce Clause and state action doctrine also appear regularly. Commerce Clause questions test whether Congress has the power to regulate a particular activity under the substantial effects test from United States v. Lopez. State action doctrine asks whether the Constitution applies at all to the actor in question. Dormant Commerce Clause issues, where a state law discriminates against or unduly burdens interstate commerce, are a frequent testing target. The Privileges and Immunities Clause of Article IV often appears alongside Dormant Commerce Clause analysis.
How to Approach a Constitutional Law Essay
Begin by identifying whether there is state action. If a private party is involved, you need to address whether the conduct qualifies as government action before reaching any substantive constitutional analysis. Next, identify the constitutional provision at issue. The facts will signal this: a law restricting speech points to the First Amendment; a law treating groups differently points to equal protection.
Once you have identified the provision, apply the correct framework. For equal protection, state the level of scrutiny and explain why it applies to the classification at issue. For free speech, determine whether the regulation is content-based or content-neutral, then apply the appropriate test. Graders reward methodical application of the framework to the specific facts. Do not skip steps or jump to a conclusion.
Common Mistakes to Avoid
Skipping the state action analysis. The Constitution restricts government conduct, not private conduct. If the fact pattern involves a private actor, you must first determine whether state action exists before reaching any substantive constitutional analysis. Many examinees skip this threshold question and jump straight to scrutiny analysis, losing points on the state action framework entirely.
Applying the wrong level of scrutiny. Each classification triggers a specific level of scrutiny, and the level determines the outcome in most cases. Applying strict scrutiny to an age-based classification (which receives rational basis) or rational basis to a racial classification (which receives strict scrutiny) produces a fundamentally flawed analysis. Memorize the classifications and their corresponding scrutiny levels.
Confusing content-based and content-neutral speech regulations. Content-based restrictions on speech receive strict scrutiny. Content-neutral time, place, and manner restrictions receive intermediate scrutiny. Many examinees misidentify a content-neutral regulation as content-based or vice versa. A regulation is content-based if it targets speech because of its subject matter or viewpoint. A regulation is content-neutral if it restricts speech regardless of its message (such as a noise ordinance). Note that "narrowly tailored" means different things under each test.
Failing to identify the specific constitutional provision. Do not write a generic "constitutional rights" analysis. Identify whether the issue is First Amendment free speech, free exercise, establishment clause, equal protection, substantive due process, procedural due process, or the Commerce Clause. Each provision has its own test. Naming the provision and its specific test shows the grader you know the framework.
Scoring Tips
Memorize the scrutiny frameworks cold. Con Law essays are framework-driven. For each level of scrutiny, know (1) who bears the burden of proof, (2) the required government interest (legitimate, important, or compelling), and (3) the required fit between the law and the interest (rational relation, substantial relation, or narrowly tailored). State these elements precisely in your rule section.
Apply the facts to each element of the test. After stating the scrutiny framework, walk through each element with the specific facts. What government interest does the law serve? How closely tailored is the law to that interest? Are there less restrictive alternatives? Graders award most of the points in the application section. A correct framework with thin application earns fewer points than a correct framework with detailed fact application.
Address the Dormant Commerce Clause separately from the Commerce Clause. The Commerce Clause grants Congress the power to regulate interstate commerce. The Dormant Commerce Clause restricts states from burdening interstate commerce. These are different issues with different tests. If a state law affects interstate commerce, analyze the Dormant Commerce Clause. If Congress passed the law, analyze the Commerce Clause power.
Watch for crossover with procedural due process. If the fact pattern involves the government taking away a benefit, license, or liberty interest without a hearing, procedural due process is at issue. Apply the Mathews v. Eldridge balancing test: (1) the private interest affected, (2) the risk of erroneous deprivation and the value of additional safeguards, and (3) the government's interest in efficiency. Many examinees analyze only substantive due process and miss the procedural component.
Frequently Asked Questions
Is Constitutional Law tested frequently on the MEE?
Constitutional Law appears on roughly 46% of MEE administrations. While not the most frequent subject, it is tested consistently and often raises First Amendment or Fourteenth Amendment issues in a single fact pattern.
What topics in Constitutional Law are most commonly tested on the MEE?
The most commonly tested topics are First Amendment freedoms (speech, religion), the Fourteenth Amendment (equal protection, due process), the Commerce Clause and federalism, and state action doctrine. Substantive due process and levels of scrutiny appear regularly.
How should I study Constitutional Law for the bar exam?
Focus on the framework of scrutiny levels (strict, intermediate, rational basis) and when each applies. Know the major First Amendment doctrines and equal protection classifications. Practice identifying which constitutional provision is at issue from a fact pattern and applying the correct test.
What are the three levels of scrutiny and when does each apply?
Strict scrutiny (law must be narrowly tailored to a compelling government interest) applies to race, ethnicity, national origin, alienage, and fundamental rights. Intermediate scrutiny (law must be substantially related to an important government interest) applies to gender and legitimacy classifications. Rational basis (law must be rationally related to a legitimate government interest) applies to everything else, including age, wealth, and education. The government usually loses under strict scrutiny. The challenger usually loses under rational basis.
How do I distinguish Equal Protection from Due Process on the MEE?
Equal Protection applies when the government treats groups differently. The key question is whether the classification is justified under the appropriate level of scrutiny. Due Process applies when the government restricts individual liberty or property. Substantive due process asks whether the restriction is justified; procedural due process asks whether adequate notice and a hearing were provided. If the facts involve a law treating one group differently from another, start with Equal Protection. If the facts involve a restriction on an individual right, start with Due Process.
What is the Dormant Commerce Clause and how is it tested?
The Dormant Commerce Clause prohibits state laws that discriminate against or unduly burden interstate commerce, even when Congress has not acted. If a state law discriminates against out-of-state commerce on its face or in effect, it is virtually per se invalid unless the state can show no adequate nondiscriminatory alternatives. If the law is nondiscriminatory, it is valid unless the burden on interstate commerce clearly exceeds the local benefits. The Privileges and Immunities Clause of Article IV often appears alongside Dormant Commerce Clause analysis.