5) The Structure of the Constitution's Protection of Individual Liberties

Question 1

What type of action does the constitution apply to?

Answer 1

Constitution only applies to government action. Private conduct does not count.

Question 2

When can Congress apply constitutional norms to private conduct?

Answer 2

1. 13th Amend.: can prohibit private race discrimination and has broad powers to adopt laws to enforce this position.
2. Commerce Clause: Congress can apply constitutional norms to private conduct
3. Sec. 5 of 14th Amend.: cannot use to regulate private behaviour, only regulate state/local governments

Question 3

What are exceptions where private conduct must comply with the constitution?

Answer 3

1. If private entity performing task traditionally exclusively done by government (public functions exception)
2. If government affirmatively authorizes, encourages, or facilitates (entanglement exception)

Question 4

Who does the Bill or Rights apply to?

Answer 4

1. Applies directly only to federal government

2. Applied to state/local governments through incorporation into due process clause of 14th Amend.

Question 5

What rights are not incorporated?

Answer 5

1. 2d Amend. right to bear arms, except right to own weapons for self defense
2. 3d Amend. right not to have soldiers quartered in person’s home
3. 5th Amend. right to grand jury indictment in criminal cases
4. 7th Amend. right to jury trial in civil cases
5. 8th Amend. right against excessive fines

Question 6

What is the concept around levels of scrutiny when SC addresses individual liberties under the constitution?

Answer 6

The outcome will depend on the level of scrutiny used by the Court 1) Rational basis, 2) Intermediate or 3) Strict.

Question 7

what is the rational basis test?

Answer 7

1. Law upheld if rationally related legitimate government purpose
2. Challenger has burden of proof to show either there is no conceivable legitimate purpose OR law not rationally related to it

Question 8

What is intermediate scrutiny?

Answer 8

1. Law upheld if substantially related to important government purpose
2. Must be narrowly tailored
3. Government has burden of proof

Question 9

What is strict scrutiny?

Answer 9

1. Law upheld if law necessary to achieve compelling government purpose
2. Must be least restrictive means
3. Government has burden of proof