Constitutional Law: Has there
been a violation that’s
redressible under the U.S.
Constitution?
Washburn University School of Law, Bar Services | Constitutional Law MBE Flow Chart | 1
Don’t forget the different types of standing
(e.g., 3d party standing, organizational
standing, taxpayers, etc.)
Was there Standing?
Was there Ripeness?
1. Threshold
question: If P is
suing, is the case
justiciable?
Was there Mootness?
Were there Political Questions?
Will the Fed court here abstain from hearing the case?
Were there 11th Amendment issues?
Legislative Branch issues (sources of powers & limits [see below])
Separation of Powers
issue?
Executive Branch issues (domestic affairs & foreign policy)
Judicial Branch issues (judicial review & justiciability issues [see
above])
Federal Legislative
Powers issue?
2. What kind of
Constitutional
issue has arisen?
Note: This flow chart
was prepared by
Washburn Bar Services
and is merely intended
as a supplement to
helping students gain
practical comprehension
of the MBE subject that
it reflects. There may
be more issues or more
depth of issues that will
need to be covered by
students in a usual bar
study. It is not intended
to replace materials for
a comprehensive bar
program, such as BarBri
or Kaplan.
Did Congress’s actions come from a legitimate and
Constitutional source of power, such as the following?
1. Commerce Clause (Intestate & Dormant)
2. War Powers
3. Tax and Spending Powers
4. Necessary and Proper Clause
5. Takings Power
6. Citizenship
7. Postal Monopoly
Was Congress’s powers limited in some legitimate and
Constitutional way by perhaps the following?
1. 10th Amendment?
2. Section 5 of the 14th Amendment (civil rights)?
3. No plenary police powers?
4. Geographic neutrality?
Pre-emption?
State limits or
interference with
Federal powers issue?
Dormant Commerce Clause?
Intergovernmental immunity?
State Privileges & Immunities?
Federal Privileges & Immunities?
Contracts Clause?
Full Faith & Credit?
Washburn University School of Law, Bar Services | Constitutional Law MBE Flow Chart | 2
Content based
regulations (including
defamation)
Speech
Content neutral
regulations
Prior Restraints
Privacy
1st
Amendment
issues
Reasonableness
(vagueness &
overbreadth, etc)
Free Exercise
Individual
rights
issue?
Always analyze
first if there was
state action. Then
move onto the
constitutional
issues involving
individual rights.
Religion
Establishment Clause
Press
Association
Equal
Protection
Note: This flow chart
was prepared by
Washburn Bar Services
and is merely intended
as a supplement to
helping students gain
practical comprehension
of the MBE subject that
it reflects. There may
be more issues or more
depth of issues that will
need to be covered by
students in a usual bar
study. It is not intended
to replace materials for
a comprehensive bar
program, such as BarBri
or Kaplan.
Substantive
Due Process
Know the scrutiny tests and
what kind of violations will
trigger what corresponding
test. For instance,
discrimination based on race
will trigger strict scrutiny.
Know the scrutiny tests and
what kind of rights violations will
trigger what corresponding test.
For instance, right to vote will
always trigger strict strutiny.
Procedural
Due Process
Takings
Ex post facto laws
Retroactive
legislation
Contracts Clause
Bills of Attainder