5. The Structure of the Constitution’s Protection of Individual Liberties

Question 1

What do the Constitution’s protections of individual liberties apply to?

Answer 1

1. The Constitution applies only to government action. Private conduct need not comply with the Constitution
2. Congress, by statute, may apply constitutional norms to private conduct

Question 2

The Thirteenth Amendment

Answer 2

The Thirteenth Amendment prohibits slavery and involuntary servitude.

Discrimination never violates the Thirteenth Amendment, only slavery or involuntary servitude does, but discrimination can violate a federal statute passed under the Thirteenth Amendment.

Question 3

May Congress use section 5 of the Fourteenth Amendment to regulate private behavior

Answer 3

Congress can only regulate state and local governments under this amendment.

Question 4

The public function exception

Answer 4

The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.

Question 5

The entanglement exception

Answer 5

The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Question 6

The application of the Bill of Rights

Answer 6

The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except:

1. The Third Amendment right to not have a soldier quartered in a person’s home.
2. The Fifth Amendment right to grand jury indictment in criminal cases.
3. The Seventh Amendment right to jury trial in civil cases.
4. The Eighth Amendment right against excessive fines

Question 7

Rational basis test

Answer 7

1. A law will be upheld if it is rationally related to a legitimate government purpose.
2. The challenger has the burden of proof that there is either no conceivable legitimate purpose, or that the law is not rationally related to it.

Question 8

Intermediate scrutiny

Answer 8

1. A law will be upheld if it is substantially related to a legitimate government purpose.
2. The law must be narrowly tailored to achieve the goal, but it does not have to be the best way.
3. The government has the burden of proof.

Question 9

Strict scrutiny

Answer 9

1. A law will be upheld if it is necessary to achieve a compelling government interest.
2. The government must prove that there was no less restrictive alternative could have achieved the objective.
3. The Court will look only to the government’s actual purpose.