CONSTITUTIONAL LAW BIG PICTURE OUTLINE
With Constitutional Law, we want to ask the following three questions:
1. WHAT POWER IS BEING EXERCISED?
2. WHO IS EXERCISING THAT POWER?
3. ARE THERE ANY CONSTITUTIONAL LIMITATIONS ON THE
POWER?
JUDICIAL POWER On a bar question, the power of the judiciary is usually raised through
the issue of judicial review. Typically, the Bar Examiners will tell you that a party is seeking
to challenge the constitutionality of a law or some government action, and then ask you to
determine whether the action is properly subject to judicial review. For example, if you are
told that a party is seeking to challenge the constitutionality of a state law in federal court,
you should discuss whether that party has standing, and whether any other limitations in
judicial review exist.
STANDING Requires that the litigant have a significant stake in the controversy
and has suffered some form of injury before judicial power is properly exercised.
Special rules govern whether a federal taxpayer, third parties and organizations have
“standing” to sue.
ABSTENTION The federal courts should “stay its hand” or abstain temporarily
as to give local or state courts the opportunity to settle underlying state law in
question.
ADVISORY OPINIONS The courts will not offer advisory opinions on
matters, there must be an actual case or controversy.
MOOTNESS Moot cases are dismissed whenever there is no longer an injury or
stake in the controversy.
a. Controversies that are capable of repetition yet evading review
are not moot, even though they look like it. Cases in this category
always involve disputes with an internal time limit [i.e. it does not
last long enough for the case to make its way to the courts.]
POLITICAL QUESTIONS They are non-justiciable, which means they are
questions that a court will not decide.
RIPENESS It requires that the harm be actual or that there is an immediate
threat of harm.
LEGISLATIVE POWER Legislative power is the authority to create laws granted to
Congress. Congress, which consists of the Senate and House of Representatives, has the
power to make laws and amend the Constitution. In exercising its power, Congress can
exercise only those powers specifically enumerated in the Constitution, and any auxiliary
powers that are necessary and proper to carry them out.
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Thus, we must determine what power Congress is exercising. Here are some of the more
important powers of Congress that you should know for the Bar Exam:
ALIENS, NATURALIZATION AND CITIZENSHIP Congress has broad
power, unlike the states, to distinguish entre aliens and citizens.
COMMERCE POWERCongress may regulate any activity if there is a rational
basis supporting the congressional belief that the activity affects interstate commerce,
provided the means selected are reasonably adapted to the end sought to be
achieved.
DELEGATION POWER The delegation of legislative power to administrative
agencies is permitted, so long as Congress provides standards for the exercise of the
delegated powers.
ELECTION REGULATION POWER Congress has broad powers in
regulating the election process.
ENFORCEMENT OF CIVIL RIGHTS Congress may do anything reasonable
to enforce civil rights.
FISCAL POWERS Congress holds the purse strings.
FOREIGN AFFAIRS POWER The Tenth Clause of Article I, Section 8 of the
Constitution grants to Congress the power "[t]o define and punish ... Offenses
against the Law of Nations...."
PROPERTY POWER Congress has plenary power to make rules and
regulations over federal land and territory. It covers wild animals and federal land,
reservations, federal building and items, and post offices.
SPENDING POWER Valid if “to provide for the common defense and welfare
of society.” Congress is able to force states to do things with this clause. Congress
can spend for any public purpose as long as it does not infringe on other cont.
restrictions.
TAXING POWER A taxing regulation is valid if the law is reasonably revenue.
WAR POWER Congress has broad power to remedy problems that arise because
of war. The power does not cease upon the end of the war. President can declare the
end of the war.
EXECUTIVE POWERS The executive branch of government, headed by the President of
the United States, has certain enumerated powers:
EXECUTIVE AGREEMENTS & PRIVILEGES An exec agreement or order
takes precedence over a conflicting state law.
FOREIGN AFFAIRS POWER President has the power to represent and act
for the United States in day-to-day foreign relations.
PARDON POWER Power to pardon applies to all “offenses against the US”—
not state crimes.
TREATY POWER Is vested in the President as the Supreme Law of the Land;
but with a Treatise and an act of Congress, the last in time prevails.
VETO POWERThe President is endowed by the Constitution with a veto over
congressional legislation.
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WAR POWER President can deploy troops when there is an immediate threat of
harm to the United States.
 See Powers Chart
STATE POWER Under the Constitution, the states may exercise any power that is not preempted by federal law, unconstitutional or contrary to an implied constitutional limitation on
state power. States may NOT regulate in the following areas:
FEDERAL ACTIVITIES
INTERSTATE COMMERCE
FOREIGN COMMERCE
Note: when you see State A enacting a legislation that discriminates against State B, this should be a key
that you are being asked a question about the negative implications of the commerce clause (dormant commerce
clause)
Note: the correct answer for MBE purposes is usually a company from another state who has standing
because they are affected by the legislation in a way that negatively impacts their business
Note: do not get this confused with the Privileges and Immunities Clause, which applies to discriminating
against out of state residents, not companies.
 See Commerce Clause Chart
Once you have determined what type of power is being exercised by the state, you next
consider whether any LIMITATIONS on that power exist. These limitations include:
STATE ACTION LIMITATION Requires that there be some government
action before a constitutional claim can arise.
CONSITUTIONAL LIMITATIONS Limitations found within the
Constitution.
CONTRACTS CLAUSE Forbids retroactive impairment of contracts.
EQUAL PROTECTION OF THE LAWS  Prohibits states from denying any
person the equal protection of the law. This is a comparison of classes of people, not
individual rights. The three standards that must be applied in analyzing an equal
protection claim are:
a. Strict scrutiny: narrowly tailored to a compelling government
interest.
b. Intermediate scrutiny: substantially related to an important
government interest.
c. Rational basis scrutiny: rationally related to a legitimate
government interest.
PRIVILEGES AND IMMUNITIES CLAUSE Forbids serious discrimination
against out-of-state individuals.
PROCEDURAL DUE PROCESS Ask whether or not life, liberty, or property
is taken (there are no procedural safeguards unless taken away). Then ask yourself
what kind of process is due, i.e., is the claimant entitled to a notice and a hearing?
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TAKING WITHOUT JUST COMPENSATION Private property shall not be
taken for public use without just compensation.
SUBSTANTIVE DUE PROCESS These are considered our individual
fundamental rights that are protected by the constitution. Strict scrutiny always
applies to fundamental rights.
See Chart on EP, PDP, SDP
FIRST AMENDMENT FREEDOM OF ASSOCIATION The freedom of
individuals to associate as an end in itself or with a view to pursuing common
projects.
FIRST AMENDMENT FREEDOM OF THE PRESS Generally, freedom of
the owner or the publisher, and not the public.
FIRST AMENDMENT FREEDOM OF RELIGION
a. Establishment Clause The government cannot prefer or
“establish” one religion over another.
b. Free Exercise Clause The government cannot interfere with
an individual’s free exercise of religion.
FIRST AMENDMENT FREEDOM OF SPEECH:  The freedom of speech
is a heavily protected individual right. When analyzing government regulation of
speech, first determine if it falls within constitutionally protected speech, then
determine if it is content based or content neutral, and make sure you apply the right
scrutiny to the type of speech being regulated.
 See First Amendment Chart
RETROACTIVE LEGISLATION
a. Ex Post Facto Laws: Unconstitutional because criminal liability
cannot be extended retroactively, either by creating or by
increasing penalties.
b. Bill of Attainder: Unconstitutional form of legislative
punishment by declaring someone guilty without a judicial trial.
© LawTutors 2011
MiniEssays
Question 1
To encourage minority business and foster pride in minority heritage, the state of
Miltoff, among other things, adopted legislation exempting magazines and other periodicals
from the state’s receipts tax if 20% of the magazine is devoted to articles concerning
minorities (a commission was set up to sample magazines to determine on a yearly basis
whether they should be exempt).
Linda published a sports magazine in Miltoff that occasionally contained articles about
minority athletes, but the commission determined that Linda’s magazine was not eligible for
the receipts tax exemption. After paying the tax assessed on her magazine, Linda sued for a
refund.
How should the court find?
Question 2
The state of Purple provided for a public school system based primarily on property
tax revenues from the various districts. School districts that had a property tax base below a
certain threshold received supplemental funds from the state that were derived from state
lottery revenues. The school districts receiving the supplemental funds served a
predominately Hispanic population as compared to the school districts funded only from
property tax revenues.
Because of a series of natural disasters in the state in recent years, as well as a substantial
drop in lottery revenues, the state was facing a serious budget deficit. To help balance the
budget, the Purple state legislature passed a statute terminating the supplemental funds
program and earmarking the lottery revenues for deficit reduction. A group of parents of
Hispanic schoolchildren in one of the school districts formerly receiving supplemental funds
filed suit in federal court, alleging that the state’s action in terminating the funding violates
the Equal Protection Clause of the Fourteenth Amendment.
How should the court rule?
© LawTutors 2011
CONSTITUTIONAL LAW MBE QUESTIONS
Question 1
The State A was experiencing a severe economic budget crisis that threatened to
bankrupt the state and cause long-term damage to the state’s business sector. In response,
the legislature of State A enacted a statute that required every business with annual sales in
State A over $5 million to each year purchase at least $2 million dollars of goods and services
and to hire at least 10 State A residents on a full time basis.
Which of the following parties most clearly has standing to challenge the
constitutionality of this statute in federal court?
(A)
(B)
(C)
(D)
A business in an adjacent state that provides from that adjacent state all of
the goods and services bought by a corporation that has annual sales in State
A of $8 million.
A corporation selling $3 million of goods annually in State A, but presently
purchasing only $200,000 in goods and services in State A.
The governor State B, an adjacent state, on behalf of the state and its
residents.
None of the above, because the Eleventh Amendment bars suit against the
states in federal court.
Question 2
Roller has a rollerblading rental business that he operates out of a specially equipped
van. He drives to various parks and public beaches in the Southern California area and rents
rollerblading related safety equipment and iPods to passersby on an hourly basis. He also
sells rollerblading equipment.
About fifty percent of Roller’s time is spent in the city of Beachfront, and he earns
about seventy percent of his gross rental and sale income at its beach areas. After receiving
numerous complaints from beachgoers about the sidewalks congested with roller bladers,
the city council of Beachfront passes an ordinance prohibiting rollerblading on public
property between the hours of 7:00 A.M. and 9:00 P.M.
If Roller seeks to enjoin enforcement of the ordinance in federal district court, that
court will probably:
(A)
(B)
(C)
(D)
Reach the merits of Roller’s challenge to the ordinance, because it interferes
with his right to free association.
Reach the merits of the challenge, because enforcement of the ordinance will
harm Roller’s business and the rights of the public are linked to Roller’s
rights.
Decline to hear the case, because the ordinance does not prohibit the rental
of roller blading equipment.
Decline to hear the case, because skating is not prohibited on private
property or from 9:00 P.M. to 7:00 A.M.
© LawTutors 2011
Question 3
A man owned a house where he lived with his family. The man was convicted of
selling large quantities of cocaine from his house. Acting under a state law authoring the
destruction of buildings that are used for illegal activity, the city destroyed the man’s house.
The man’s family then rented a cottage and demanded that the city pay the rent and
utilities for the temporary residence. The family relied in a state law providing that any
person whose place of residence was taken due to actions of the city or their officials was
entitled to replacement housing at the city’s expense until permanent substitute housing
could be found. The city refused to pay the rent for the apartment and the man’s family sued
the city in a state trial court claiming a right to such payment under both the state law and
the due process clause of the Fourteenth Amendment of the United States Constitution.
The highest state court ruled for the family. The court decided that the family had no
right to payment under the state law, since the state law wasn’t designed to protect those
engaged in illegal activity, it did hold that the Fourteenth Amendment of the United States
Constitution entitled the family to payment of the rent for the temporary cottage. It its
opinion, the highest state court indicated that in several of its decisions it had found cities
liable for compensation in similar circumstances on the basis of the due process clause of the
state constitution. However, the court in its decision on this matter stated; “we will not be
basing our decision on the state constitution because that issue has not be raised in this
case.” The city then filed a petition for writ of certiorari in the United States Supreme Court.
Does the Court have jurisdiction to review the merits of this case?
(A)
(B)
(C)
(D)
Yes, because the highest state court based its decision wholly on federal law
grounds.
Yes, because the federal and state law issues in this case are so intertwined
that a resolution of the federal law issues is necessary to facilitate a proper
determination of the state law issues.
No, because the decision of the highest state court renders the case moot.
No, because the independent state law grounds could have been used to
justify the result in this case.
Question 4
City police officers shot and killed the plaintiff’s friend as he attempted to escape
arrest for an armed robbery he had committed. The plaintiff brought suit in federal district
court against the city police department and the city police officers involved, seeking only a
judgment declaring unconstitutional the state statute under which the police acted. That
newly enacted statute authorized police to use deadly force when necessary to apprehend a
person who has committed a felony. In his suit, the plaintiff alleged that the police would
not have killed his friend if the use of deadly force had not been authorized by the statute.
The federal district court should:
(A)
(B)
(C)
(D)
Decide the case on its merits, because it raises a substantial federal question.
Dismiss the action, because it involved a nonjusticiable political question.
Dismiss the action, because it does not present a case or controversy
Dismiss the action, because the Eleventh Amendment prohibits federal
courts from deciding cases of this type.
© LawTutors 2011
Question 5
The constitution for State A provided that all children under the age of 17 were
required to attend school until such time as they had mastered specific skills as determined
by the State A state legislature. Mom and Dad were members of a religious organization that
did not permit the children of its members to attend school in the traditional classroom
setting. Instead, education under their religious beliefs consisted of studying nature and
understanding human interaction through singing songs and studying the stars and other
planets. When local officials discovered that Mom and Dad were not sending their eightyear-old son, Son, to any recognized public or private school, they brought an action against
Mom and Dad seeking a court order compelling them to send Son to any state-approved
school. The trial court rules in favor of the local officials and issued an order compelling
Mom and Dad to enroll Son in a state-approved school.
Mom and Dad appealed the order to the highest State A appellate court claiming that
the court order violated both the First Amendment of the State A state constitution and
United States Constitution that protected freedom of religion. In its opinion, the State A
Supreme Court stated “the right of the people to practice their religious beliefs is one of the
fundamental rights implicit in the nature of a free society. However, that right must be
balanced against the rights of society to insure that all of its children are given a fair
opportunity to achieve their potential. When we read the cases interpreting our own state
constitutional guarantees for freedom of religion and the federal cases interpreting the
freedom of religion guarantee under the federal constitution we must find for the
appellants.”
If the state of State A appeals the decision to the U.S. Supreme Court, the most likely
result is that the Supreme Court will:
(A)
(B)
(C)
(D)
Hear the case, because State A’s Supreme Court opinion was based
exclusively on federal constitutional grounds.
Hear the case, because State A’s Supreme Court opinion may have been
based on decisions of the U.S. Supreme Court interpreting the U.S.
Constitution.
Refuse to hear the case, because Stat A’s Supreme Court opinion may have
been based on adequate and independent state law grounds.
Remand the case to the State A Supreme Court for a more definite statement
of the authority relied upon to support the decision.
Question 6
A federal statute prohibits the sale, or resale, in any place in this country, or any
product intended for human consumption or ingestion into the human body that contains
designated chemicals known to cause cancer, unless the product is clearly labeled as
dangerous.
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The constitutionality of this federal statute may most easily be justified on the basis
of the power of Congress to:
(A)
(B)
(C)
(D)
Regulate commerce among the states.
Enforce the Fourteenth Amendment.
Provide for the general welfare.
Promote legislation that is necessary and proper.
Question 7
In an effort to reduce the budget, Congress passed a law that taxed the owners of
buildings containing lead. A portion of the revenue was earmarked to help pay for the cost
of removing lead from public school buildings throughout the country. The lead tax law was
debated at length before ultimately passing in both the House of Representatives and the
Senate. Opponents of the bill charged that it was punitive in nature as many members of
Congress openly admitted that they had voted for the tax because they thought it might
encourage building owners to remove the lead from their buildings prior to the effective date
of the tax so as to avoid having to pay the tax.
If properly challenged, a court is most likely to rule that the tax is:
(A)
(B)
(C)
(D)
Valid, because Congress has plenary power to raise revenue any way it sees
fit.
Valid, because a tax is proper even though it may have a regulatory effect.
Invalid, because the regulatory effects of the tax render it unconstitutional.
Invalid, because this tax is an ex post facto law as applied to producers of
lead.
Question 8
The governor of a state proposed to place a Christmas nativity scene, the
components of which would be permanents donated to the state by private citizens, in the
state Capitol Building rotunda where the state legislature meets annually. The governor
further proposed to display this state-owned nativity scene annually from December 1 to
December 31, next to permanent displays that depict the various products manufactures in
the state. The governor’s proposal is supported by all members of both houses of the
legislature.
If challenged in a lawsuit, the proposed nativity scene display would be held
(A)
(B)
(C)
(D)
Unconstitutional, because the components of the nativity scène would be
owned by the state rather than by the private persons.
Unconstitutional because the nativity scene would not be displayed in a
context that appeared to depict and commemorate the Christmas season as a
primarily secular holiday.
Constitutional, because the components of the nativity scene would be
donated to the state by private citizens rather than purchased with state
funds.
Constitutional, because the nativity scene would be displayed alongside an
exhibit of various products manufactured in the state.
© LawTutors 2011
Question 9
The United States Department of Agriculture (USDA) is empowered by Congress to
purchase surplus agricultural crops and other foodstuffs produced by farmers in the United
States. Acting pursuant to a federal statute authorizing such action, the USDA distributed
surplus milk, cheese and other dairy products without charge to public schools located in
low-income communities throughout the country. Dairyman, a dairy product supplier who
sold milk to a public school in a low-income area, challenged the USDA in the appropriate
federal district court to restrain the USDA from competing with him by giving away the
surplus dairy products.
Which of the following constitutional provisions may most easily and directly justify
the federal statute authorizing this USDA distribution program?
(A)
(B)
(C)
(D)
The General Welfare Clause of Article I, Section 8.
The Federal Property Clause of Article IV, Section 3.
The Commerce Clause of Article I, Section 8.
The Necessary and Proper Clause of Article VI.
Question 10
Small retailers located in State A are concerned about the loss of business to certain
large retailers located nearby in bordering states. In an effort to deal with this concern, the
legislature of State A enacted a statute requiring all manufacturers and wholesalers who sell
goods to the retailers in State A to do so at prices that are no higher than the lowest prices at
which they sell them to retailers in any of the states that border State A. Several
manufacturers and wholesalers who are located in states bordering State A and who sell their
goods to retailers in those states and in State A bring an action in federal court to challenge
the constitutionality of this statute.
Which of the following arguments offered by these plaintiffs is likely to be most
persuasive in light of applicable precedent? The state statute:
(A)
(B)
(C)
(D)
Deprives them of their property or liberty without due process of the law.
Imposes an unreasonable burden on interstate commerce.
Deprives them of a privilege or immunity of national citizenship.
Denies them the equal protection of the laws.
Question 11
To keep its public school expenditures under control in a time of increasing costs, a
state passed a law providing that children who have not lived in the sate for at least one year
cannot attend public schools in the state.
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Which of the following statements about this law is most accurate as a matter of
constitutional law?
(A)
(B)
(C)
(D)
The one-year residence requirement is valid because it does not affect any
fundamental right or suspect class
State durational residence requirements that are established for publicly
funded services are constitutional because they relate to government
operations reserved exclusively to the states by the Tenth Amendment.
Because publicly funded education is a fundamental constitutional right, a
state may not deny it to any class of persons who reside in that state.
State durational resident requirements established for this kind of publicly
funded service solely for the purpose of reducing state expenditures violate
the equal protection clause of the Fourteenth Amendment.
Question 12
A federal statute sets up a program of gasoline conservation. The statue provides
that the Secretary of Transportation “shall, on a current basis, spend all of the money
appropriated funds” by a specified formula to state transportation departments that agree to
participate in the program. In the current year Congress has appropriated $100 million for
expenditure on this program.
In order to ensure a budget surplus in the current fiscal year, the President issues an
executive order directing the various cabinet secretaries to cut expenditures in this year by 10
percent in all categories. He also orders certain programs to be cut more drastically because
he believes that “they are not as important to the general welfare as other programs.” The
President identifies the gasoline conservation program as such a program and orders it to be
cut by 50 percent. Assume that no other federal statutes are relevant.
To satisfy constitutional requirements, how much money must the Secretary of
Transportation distribute for the gasoline conservation program this year?
(A)
(B)
(C)
(D)
$50 million, because the President could reasonably determine that this
program is not as important to the general welfare as other programs.
$50 million, because as Chief Executive, the President has the constitutional
authority to control the actions of all of his subordinates by executive order.
$90 million, because any more drastic cut of this program would be a denial
of equal protection to beneficiaries of this program as compared to
beneficiaries of other programs.
$100 million, because the President may not unilaterally suspend the effect of
a valid federal statute imposing a duty to spend appropriated monies.
© LawTutors 2011
Question 13
The State Occupational Health and Safety Board of State recently issued regulations
valid under its statutory mandate requiring all employers in the state provide an air
purification systems for all employee work areas. These regulations replaced previous
guidelines for employee air quality, which were generally not mandatory and did not specify
the method of air purification used.
The requirements regarding air purification systems are LEAST likely to be
constitutional as applied to which of the following employers?
(A)
(B)
(C)
(D)
ComputersRUs a wholly owned Indian subsidiary of India Electronics, an
Indian corporation. ComputersRUs provides personalized instruction for
private citizens in the use of home computers and has seven outlets all within
the state.
The State Supreme Court, which recently completed construction of its new
courthouse without air purification systems which are serviced under a fiveyear contract signed prior to enactment of the new regulations.
The United States Armed Forces Recruiting Center in Capitol City, State.
The Rainbow Rec Center, a privately operated community service center
funded by donations and constructed through the use of a loan provided by
the Federal Recreation Administration and repayable to that agency.
Question 14
Congress passed the Age Discrimination in Employment Act to protect older
workers from being discriminated against in the workplace. By its language, all workers in
the country are protected under the ADEA. Employee is a 64-year-old male employed as a
computer programmer by State R. Two months before his 65th birthday, Employee received
a note in his paycheck envelope informing him that he would be forced to retire under the
state’s mandatory retirement policy requiring the termination of all state government
workers at the age of 65. The mandatory retirement policy was a critical component of the
State R fiscal responsibility program because it enabled the state to hire younger workers at a
pay rate of 42% less than the older workers who retired.
What is the most likely result of an action brought by Employee challenging the
mandatory retirement policy?
(A)
(B)
(C)
(D)
Employee will prevail because the state law is an unconstitutional
interference with a fundamental right.
Employee will prevail because the state law is in violation of the Equal
Protection Clause of the Fourteenth Amendment because age is a suspect
category.
Employee will prevail because the ADEA is a reasonable exercise of
Congress’ power under the Constitution.
State R will prevail because the ADEA is an unconstitutional interference
with a necessary state economy measure.
© LawTutors 2011
Question 15
City, established in a time long ago, had narrow streets. Main Street was the primary
artery leading through the center of town and the most congested street in City due to its
narrowness. Faced with the prospect of gridlock, the state ordered City to reduce the traffic
problem by banning parking on one side of Main Street.
After hearing the concerns of traffic experts and the local merchants whose
businesses were located on Main Street, City’s council decided that the only fair way to
decide which side of the street would lose its parking privileges would be by flipping a coin.
Mayor, the City Mayor, flipped the coin and the council decided that the south side of Main
Street was thereafter a no parking zone. Owner, the owner of Saloon that was located on the
south side of Main Street, protested that the action was unfair to his customers who would
have to stagger when drunk across the street to reach their vehicles. In addition, many of his
customers indicated that they would now be frequenting a competitor Saloon located on the
north side of Main Street so they wouldn’t have to stagger across the street to their car and
instead only stagger down the sidewalk to get into their cars. The city council was unmoved
and stuck by their decision, advising Owner that if his patrons were “staggering to their car”
they “shouldn’t be even getting into their car.”
If Owner challenges the parking ban in the federal district court, will his action be
successful?
(A)
(B)
(C)
(D)
Yes, because this decision violates the equal protection clause by providing
Owner’s competitor an unfair advantage.
Yes, because this decision violates the Privileges and Immunities of Article
IV, Section 2.
No, because City is immune from suit under the Eleventh Amendment.
No, because this is a reasonable regulation.
Question 16
City does not provide a fire department for its residents, but licenses various private
companies to offer protection from fire inside the city limits for a profit. One of theses
businesses is Fire Protection Agency (FPA), which has about 1,000 customers who pay a
monthly fee in exchange for a smoke alarm/radio transmitter device that will detect most
fires and brings FPA’s fire fighters to the scene within a few minutes of the alarm. These
alarms can be manually activated, and FPA maintains an emergency phone number for
reports of fire. It is FPA’s policy to discontinue service to any customer who makes more
than two false reports of fire (by manually activating the alarm or by phone).
Customer, an FPA customer, purchased a new toaster oven and discovered that
whenever he tried to toast bread in the toaster his smoke alarm would send a signal to the
local FPA’s station that his house was on fire (this did not happen when he tried to toast
other things, like cookies or bananas), Several false alarms were sent in this manner before
Customer realized what was causing the problem and obtained a replacement oven that did
not activate the smoke alarm with bread (or any other item he chose to toast). A few days
later, Customer was surprised when a FPA’s technician arrived to remove the smoke
alarm/transmitter from his home.
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Customer tried to explain to the technician and later in several phone calls, letters, and visits
to the main offices that he had not purposefully activated the alarm, but FPA refused to
reinstate his service.
If Customer brings an action to reinstate his service on the grounds that his rights to
due process were violated by the discontinuance of service without any notice or hearing,
Customer will probably:
(A)
(B)
(C)
(D)
Lose, because FPA has no constitutional obligation to give him notice or a
hearing in connection with the termination of fire protection service.
Lose, because the city has no constitutional duty to provide him with fire
protection, can cut off service at will, and FPA enjoys the same privileges as
a government operated fire department.
Win, because the fact that a private company provides an essential
government service does not relieve the government from its obligation to
afford its citizens due process of law.
Win, because persons may not be deprived of fundamental rights without
due process of law regardless of the nature of the organization engaging in
the adverse action.
Question 17
A city decides to conduct interviews for their security guard force in response to a
series of break-ins in various city buildings. A guard who worked for a private mall for ten
years applied for the job and was denied the position without an interview. If the guard
claims that his constitutional rights were violated since he did not get an interview.
A hearing, or a statement of why he was denied the position, the court will rule:
(A)
(B)
(C)
(D)
For the guard, since he had a property interest in obtaining the job.
For the guard, because he was denied the equal protection of the laws.
For the city, since the guard is not a member of a protected class.
For the city, since it had no obligation to give the guard procedures to ensure
he was treated fairly in the job selection process.
Question 18
A state statute prohibits the use of state-owned or state-operated facilities for the
performance of abortions that are not “necessary to save the life of the mother.” That
statute also prohibits state employees from performing any such abortions during the hours
they are employed by the state.
A woman was in her first trimester, second month of pregnancy. She sought an abortion
at a state-owned and state-operated hospital. The woman did not claim that the requested
abortion was necessary to save her life, but she didn’t have the financial means to take care
of the child and her boyfriend had threatened her during their last arguments that he would
“do something bad” if she had the baby. The officials in charge of the hospital refused to
perform the requested abortion solely on the basis of the state statute. The woman
immediately filed suit against those officials in an appropriate federal district court.
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She challenged the constitutionality of the state statute and requested the court to order the
hospital to perform the abortion she sought. In this case, the court will probably hold that
the state statute is
(A)
(B)
(C)
(D)
Unconstitutional, because a limit on the availability of abortions performed
by state employees or in state-owned or state-operated facilities to situations
in which it is necessary to save the life of the mother impermissibly interferes
with the fundamental right of the woman to decide whether to have a child.
Unconstitutional, because it impermissibly discriminated against poor
persons who cannot afford to pay for abortions in privately owned and
operated facilities and against persons who live far away from privately
owned and operated abortion clinics.
Constitutional, because it does not prohibit a woman from having an
abortion or penalize her for doing so, it is rationally related to the legitimate
governmental goal of encouraging childbirth, and it does not unduly burden
the voluntary performance of abortions by private physicians in private
facilities.
Constitutional. Because the use of state-owned or state-operated facilities and
access to the services of state employees are privileges and not rights and,
therefore, a state may condition them on any basis it chooses.
Question 19
Auditorium is a large facility owned and operated by City, a municipality in State.
The facility extends over several acres and can easily accommodate both indoor and outdoor
meetings for gatherings of several hundred people. City regularly rents the facility out to
various groups for fees that provide City with a substantial profit over and above the cost of
building and operating the facility. The Businessmen are a religious group whose
parishioners are predominately middle-aged businessmen who meet on a weekly basis to
discuss the problems and concerns of American business while wearing a pink bowtie.
At the close of each Businessmen meeting, it is customary for all the members to
build a giant bonfire and dance around it chanting secret Businessmen spiritual prayers. Due
to the unusual and hazardous nature of this ritual, the Businessmen have been asked to leave
every meeting facility in the local area. When the Businessmen requested permission to use
the outdoor meeting facility at Auditorium, City immediately amended the ordinances
governing use of the facilities to prohibit the renting of Auditorium to any religious group.
Thereafter, the law was enforced even-handedly to deny the Businessmen and every other
religious group the opportunity to rent the meeting facility.
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If the Businessmen challenge the new City ordinances restricting access to the
Auditorium, the most likely result is that the ordinances will be:
(A)
(B)
(C)
(D)
Upheld, because the ordinances are valid under the Equal Protection clause
since all religions are treated alike.
Upheld, in order to avoid violating the First Amendment Establishment
Clause.
Struck down, because the ordinances interfere with the Businessmen’s right
to free exercise of religion.
Struck down, because the ordinances discriminate against the fundamental
right of freedom of speech.
Question 20
Woman and Man were co-workers in the City Health Department. Each had been
on the job for two years and held the same position: Junior Accountant Class II. When an
opening for Senior Accountant became available, both Woman and Man applied for the
position. Although Man scored slightly higher on the promotion exam administered by the
health department, the promotion was given to Woman under an affirmative action program
reserving the first two promotions in any job category to women applicants.
If Man brings suit to challenge this program, what is the strongest argument the city
can advance to support the hiring preference?
(A)
(B)
(C)
(D)
City statistics showing that men in City are promoted twice as often as
women.
An internal health department memo indicating that male employees earned,
on average, nearly twice as much as female employees for comparable jobs.
A prior judgment against the health department holding that the health
company had purposefully discriminated against female employees in hiring
and promotion.
Congressional findings that female employees were systematically
discriminated in government employment nationwide.
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Subject Matter for Constitutional Law MBE Questions
1.
Standing
2.
Standing
3.
Adequate Independent State Grounds
4.
Standing
5.
Adequate Independent State Grounds
6.
Commerce Clause
7.
Taxing Power
8.
Establishment Clause
9.
Property Power
10.
Dormant Commerce Clause
11.
Equal Protection Clause
12.
Separation of Powers
13.
Supremacy
14.
Supremacy
15.
State Police Power/Reasonable Basis
16.
State Action
17.
Procedural Due Process
18.
Substantive Due Process
19.
Freedom of Speech
20.
Equal Protection Clause
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Constitutional Law MBE Questions Answer Sheet
1.
A
2.
B
3.
A
4.
C
5.
B
6.
A
7.
B
8.
B
9.
B
10.
B
11.
D
12.
D
13.
C
14.
C
15.
D
16.
A
17.
D
18.
B
19.
D
20.
C
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