Most Tested MBE Constitutional Law Topics | BarPrepPlay

Overview

Constitutional Law is easier to control when you anchor on recurring frameworks: state action, standing, scrutiny, commerce, speech, and separation of powers.

1. State Action Doctrine

Very High frequency

The Constitution only restricts GOVERNMENT action, not private conduct. State action exists when: (1) PUBLIC FUNCTION - private entity performs traditional, exclusive government function (running elections, company towns); (2) ENTANGLEMENT - government is significantly involved through regulation, subsidies, or authorization; (3) JUDICIAL ENFORCEMENT - court enforces private discrimination (Shelley v. Kraemer). Key traps: Heavy regulation alone is NOT enough. Private schools receiving tax exemptions = NO state action. Look for government compelling or encouraging the specific discriminatory act.

HYPO: A private country club refuses to admit Black members. A rejected applicant sues under the Equal Protection Clause. The club receives a state liquor license. ANALYSIS: Is there state action? Mere licensing/regulation is NOT enough. The liquor license doesn't make the state sufficiently entangled in the club's membership decisions. No public function (private clubs aren't traditionally government activities). RESULT: No state action. Constitutional claim fails. Plaintiff would need a civil rights statute (like Title II) instead.

• Exam shortcut: Private actors need government involvement

Section sources

Primary law and source anchors

• U.S. Constitution Amendment XIV, Section 1 The Equal Protection Clause text used for scrutiny-level analysis.
• U.S. Constitution Article I, Section 8, Clause 3 The Commerce Clause text underpinning congressional commerce power questions.
• The Civil Rights Cases, 109 U.S. 3 (1883) Foundational state-action decision distinguishing private from governmental conduct.