Constitutional Law - Individual Rights - INTRO

Question 1

Generally speaking, the Constitution applies only to government (ie “the state”) action

When may Congress apply constitutional norms to PRIVATE CONDUCT?

Answer 1

Congress, by statute, may apply constitutional norms to PRIVATE conduct in the following circumstances

(a) 13th Amendment - Pursuant to 13th amendment (which prohibits slavery and involuntary servitude) Congress can prohibit PRIVATE RACE DISCRIMINATION and has broad powers to adopt laws to enforce this provision

(b) COMMERCE CLAUSE - Congress can apply can apply constitutional norms to private conduct as it did when it adopted the Civil Rights Act of 1964 pursuant to this clause
- e..g Olly’s BBQ - congress regulated private discriminatory conduct as violating “Commerce Clause”

NOTE** Congress CANNOT use Section 5 of 14th Amendment to regulate PRIVATE behavior…only to regulate state and local governments

Question 2

First Issue under Individual Liberties questions: IS THERE GOVERNMENT ACTION?

If not, no issue because generally private citizens don’t have to conform conduct to constitution (Constitution protects ppl from GOVT ACTION)

Answer 2

To find some action UNCONSTITUTIONAL, it is generally necessary to find some STATE ACTION

STATE ACTION includes

(1) Government agencies and officials acting under color of state law
(2) Certain PRIVATE ACTIVITIES can be considered “State Action”

Question 3

Situations where PRIVATE CONDUCT constitutes STATE ACTION and therefore MUST COMPLY with Constitution

Answer 3

“State Action” can be found in the actions of seemingly private individuals who

(i) PUBLIC FUNCTIONS EXCEPTION - constitution applies if a private entity is performing a task traditionally, exclusively done by the govt
- - e.g. Marsh v. Alabama - company-owned town tried to preclude Jehovah Witnesses from handing out literature on sidewalks, claiming whole town was private property. Ct said town must comply with constitution bc Co. was performing traditional public function

(ii) ENTANGLEMENT EXCEPTION (significant state involvement) Constitution applies if the GOVT AFFIRMATIVELY authorizes, or encourages or facilitates unconstitutional activity

**Note: not enough for govt to simply let something happen

Question 4

Key Examples where “State Action” was found

Answer 4

(1) Courts cannot enforce RACIALLY RESTRICTIVE COVENANTS (ie Judicial Approval)
(2) There is state action when the govt LEASES PREMISES TO A RESTAURANT THAT RACIALLY DISCRIMINATES
(3) state action found when a state provides free books to Private Schools that racially discriminate

(4) State action when a private entity regulates interscholastic sports WITHIN a STATE
(TN athletic association, 85% of members public schools and only operates within the state)

(5) Use of Peremptory Challenges, even by private parties constitutes STATE ACTION

Question 5

Key Examples where “NO STATE ACTION” was found

Answer 5

(1) No state action when a private school that is over 99% funded by govt fires teacher because of her speech
(2) There is no state action when the NCAA orders the suspension of a basketball coach at a state university
(3) no state action when a private club with a liquor license from the state RACIALLY discriminates

Question 6

Bill of Rights applies directly to Federal Government. But Bill of Rights is applied to State and Local governments through its incorporation into the DUE PROCESS clause of the 14th AMENDMENT

Which Amendments are NOT incorporated into due process clause of 14th amendment (and therefore not applied to the states)?

Answer 6

(a) The Third Amendment right to not have a soldier quartered in a person’s home
(b) Fifth Amendment right to GRAND JURY Indictment in criminal cases
(c) The Seventh Amendment right to Jury Trial in civil cases
(d) The 8th Amendment right against EXCESSIVE FINES (but note: other 8th amendment rights HAVE BEEN applied to the states)

Question 7

LEVELS OF SCRUTINY for Individual Liberties

Answer 7

RATIONAL BASIS REVIEW - law upheld if it is “RATIONALLY RELATED to a LEGITIMATE government purpose”
—- Challenger has burden of proof

INTERMEDIATE SCRUTINY - law upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT GOVT PURPOSE
—- Govt has burden of proof

STRICT SCRUTINY - law will be upheld if the law is NECESSARY to achieve a COMPELLING GOVT PURPOSE

• — Govt has the burden of proof
• — here we look at the Actual purpose and ask if the government is using the least restrictive means