Multistate Bar
Examination (MBE)
Constitutional Law
Questions
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 1
A generally applicable state statute requires an autopsy by the county coroner in all cases of
death that are not obviously of natural causes. The purpose of this law is to ensure the discovery
and prosecution of all illegal activity resulting in death. In the 50 years since its enactment, the
statute has been consistently enforced.
Mr. and Mrs. Long are sincere practicing members of a religion that maintains it is essential
for a deceased person's body to be buried promptly and without any invasive procedures,
including an autopsy. When the Longs' son died of mysterious causes and an autopsy was
scheduled, the Longs filed an action in state court challenging the constitutionality of the state
statute, and seeking an injunction prohibiting the county coroner from performing an autopsy
on their son's body. In this action, the Longs claimed only that the application of this statute in
the circumstances of their son's death would violate their right to the free exercise of religion
as guaranteed by the First and Fourteenth Amendments. Assume that no federal statutes are
applicable.
As applied to the Longs' case, the court should rule that the state's autopsy statute is
(A) constitutional, because a dead individual is not a person protected by the due process clause
of the Fourteenth Amendment.
(B) constitutional, because it is a generally applicable statute and is rationally related to a
legitimate state purpose.
(C) unconstitutional, because it is not necessary to vindicate a compelling state interest.
(D) unconstitutional, because it is not substantially related to an important state interest.
1
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 2
The mineral alpha is added to bodies of fresh water to prevent the spread of certain freshwater
parasites. The presence of those parasites threatens the health of the organisms living in rivers
and streams throughout the country and imperils the freshwater commercial fishing industry.
Alpha is currently mined only in the state of Blue.
In order to raise needed revenue, Congress recently enacted a statute providing for the
imposition of a $100 tax on each ton of alpha mined in the United States. Because it will raise
the cost of alpha, this tax is likely to reduce the amount of alpha added to freshwater rivers and
streams and, therefore, is likely to have an adverse effect on the interstate freshwater
commercial fishing industry. The alpha producers in Blue have filed a lawsuit in federal court
challenging this tax solely on constitutional grounds.
Is this tax constitutional?
(A) No, because only producers in Blue will pay the tax and, therefore, it is not uniform among
the states and denies alpha producers the equal protection of the laws.
(B) No, because it is likely to have an adverse effect on the freshwater commercial fishing
industry and Congress has a responsibility under the commerce clause to protect, foster,
and advance such interstate industries.
(C) Yes, because the tax is a necessary and proper means of exercising federal authority over
the navigable waters of the United States.
(D) Yes, because the power of Congress to impose taxes is plenary, this tax does not contain
any provisions extraneous to tax needs or purposes, and it is not barred by any prohibitory
language in the Constitution.
2
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 3
Water District is an independent municipal water-supply district incorporated under the
applicable laws of the state of Green. The district was created solely to supply water to an
entirely new community in a recently developed area of Green. That new community is racially,
ethnically, and socioeconomically diverse, and the community has never engaged in any
discrimination against members of minority groups.
The five-member, elected governing board of the newly created Water District contains two
persons who are members of racial minority groups. At its first meeting, the governing board
of Water District adopted a rule unqualifiedly setting aside 25% of all positions on the staff of
the District and 25% of all contracts to be awarded by the District to members of racial minority
groups. The purpose of the rule was "to help redress the historical discrimination against these
groups in this country and to help them achieve economic parity with other groups in our
society." Assume that no federal statute applies.
A suit by appropriate parties challenges the constitutionality of these set-asides.
In this suit, the most appropriate ruling on the basis of applicable United States Supreme Court
precedent would be that the set-asides are
(A) unconstitutional, because they would deny other potential employees or potential
contractors the equal protection of the laws.
(B) unconstitutional, because they would impermissibly impair the right to contract of other
potential employees or potential contractors.
(C) constitutional, because they would assure members of racial minority groups the equal
protection of the laws.
(D) constitutional, because the function and activities of Water District are of a proprietary
nature rather than a governmental nature and, therefore, are not subject to the usual
requirements of the Fourteenth Amendment.
3
Examination (MBE)
Constitutional Law
Questions
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 1
A generally applicable state statute requires an autopsy by the county coroner in all cases of
death that are not obviously of natural causes. The purpose of this law is to ensure the discovery
and prosecution of all illegal activity resulting in death. In the 50 years since its enactment, the
statute has been consistently enforced.
Mr. and Mrs. Long are sincere practicing members of a religion that maintains it is essential
for a deceased person's body to be buried promptly and without any invasive procedures,
including an autopsy. When the Longs' son died of mysterious causes and an autopsy was
scheduled, the Longs filed an action in state court challenging the constitutionality of the state
statute, and seeking an injunction prohibiting the county coroner from performing an autopsy
on their son's body. In this action, the Longs claimed only that the application of this statute in
the circumstances of their son's death would violate their right to the free exercise of religion
as guaranteed by the First and Fourteenth Amendments. Assume that no federal statutes are
applicable.
As applied to the Longs' case, the court should rule that the state's autopsy statute is
(A) constitutional, because a dead individual is not a person protected by the due process clause
of the Fourteenth Amendment.
(B) constitutional, because it is a generally applicable statute and is rationally related to a
legitimate state purpose.
(C) unconstitutional, because it is not necessary to vindicate a compelling state interest.
(D) unconstitutional, because it is not substantially related to an important state interest.
1
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 2
The mineral alpha is added to bodies of fresh water to prevent the spread of certain freshwater
parasites. The presence of those parasites threatens the health of the organisms living in rivers
and streams throughout the country and imperils the freshwater commercial fishing industry.
Alpha is currently mined only in the state of Blue.
In order to raise needed revenue, Congress recently enacted a statute providing for the
imposition of a $100 tax on each ton of alpha mined in the United States. Because it will raise
the cost of alpha, this tax is likely to reduce the amount of alpha added to freshwater rivers and
streams and, therefore, is likely to have an adverse effect on the interstate freshwater
commercial fishing industry. The alpha producers in Blue have filed a lawsuit in federal court
challenging this tax solely on constitutional grounds.
Is this tax constitutional?
(A) No, because only producers in Blue will pay the tax and, therefore, it is not uniform among
the states and denies alpha producers the equal protection of the laws.
(B) No, because it is likely to have an adverse effect on the freshwater commercial fishing
industry and Congress has a responsibility under the commerce clause to protect, foster,
and advance such interstate industries.
(C) Yes, because the tax is a necessary and proper means of exercising federal authority over
the navigable waters of the United States.
(D) Yes, because the power of Congress to impose taxes is plenary, this tax does not contain
any provisions extraneous to tax needs or purposes, and it is not barred by any prohibitory
language in the Constitution.
2
, Multistate Bar Examination (MBE) – Constitutional Law – Questions
Question 3
Water District is an independent municipal water-supply district incorporated under the
applicable laws of the state of Green. The district was created solely to supply water to an
entirely new community in a recently developed area of Green. That new community is racially,
ethnically, and socioeconomically diverse, and the community has never engaged in any
discrimination against members of minority groups.
The five-member, elected governing board of the newly created Water District contains two
persons who are members of racial minority groups. At its first meeting, the governing board
of Water District adopted a rule unqualifiedly setting aside 25% of all positions on the staff of
the District and 25% of all contracts to be awarded by the District to members of racial minority
groups. The purpose of the rule was "to help redress the historical discrimination against these
groups in this country and to help them achieve economic parity with other groups in our
society." Assume that no federal statute applies.
A suit by appropriate parties challenges the constitutionality of these set-asides.
In this suit, the most appropriate ruling on the basis of applicable United States Supreme Court
precedent would be that the set-asides are
(A) unconstitutional, because they would deny other potential employees or potential
contractors the equal protection of the laws.
(B) unconstitutional, because they would impermissibly impair the right to contract of other
potential employees or potential contractors.
(C) constitutional, because they would assure members of racial minority groups the equal
protection of the laws.
(D) constitutional, because the function and activities of Water District are of a proprietary
nature rather than a governmental nature and, therefore, are not subject to the usual
requirements of the Fourteenth Amendment.
3
