Words Unsaid

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

In the following constitutional law question, the key was to spot the words or phrases left unsaid and force test takers to fill in those blanks.

Congress enacted a law requiring all civil service employees to retire at age 75, except when such employees are employed by the armed services. Civil service employees of the armed services are required to retire at age 65. An employee of the armed services just turned 65 years old. He files suit in the federal district court seeking a declaratory judgment that would prevent his employers from requiring him to retire before age 75.

The employee’s strongest argument in support that the statute’s provisions regarding civil service employees of the armed services are invalid is that this provision:

A.   Denies him the privileges and immunities of natural citizenship.

B.   Denies him a property right without just compensation.

C.   Is invidious discrimination on the basis of age in violation of the Fifth Amendment.

D.   Is not within the enumerated powers of Congress under Article I, Section 8.

Granted this is pretty much a no-brainer through process of elimination of A, B, and D.

What’s interesting is the language in the correct response C: “invidious discrimination.”

The 800-pound gorilla not mentioned by name in the fact pattern is “Due Process” and the derivative incorporated concept of “Equal Protection,” both applicable to the federal government through the Fifth Amendment’s Due Process clause.

I reckon that because the question was so easily disposed of by process of elimination, there was no reason to beat test takers over the head by using either of those phrases in the fact pattern or in explaining the basis of the employee’s suit.

On the positive side --- and making a pleasant change from the constant criticism of questions usually found in this blog --- the phrase “invidious discrimination” is so colorful that it’s bound to have resided prominently in students’ memory, even though there is only a case or two from the constitutional classroom that actually uses it.

My thanks to drafters here for throwing an occasional bone.

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Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.