Constitutional Law: Limitations on Power and State Action Requirement

Question 1

Constitutional Restrictions on Power over Individuals

Answer 1

The Constitution provides individuals with a number of rights that restrict the power of the
government (e.g., the right to speak freely). Some rights/restrictions are applicable only to the
federal government, some are applicable only to state and local governments, and some are applicable to all governmental bodies. A few even apply to private action. Several constitutional provisions also give Congress the power to adopt legislation to protect individual rights.

Note: The Constitution sets the minimum level of protection for individuals. States generally are
free to grant broader protections than those granted in the United States Constitution.

Question 2

Constitutional Restrictions on Power over Individuals: Bill of Rights

Answer 2

The Bill of Rights (first 10 Amendments to the Constitution) is the most important source of
limitations on the federal government’s power. By its terms, the Bill is not applicable to the
states, although most of its safeguards have been held to be applicable to the states through
the Fourteenth Amendment Due Process Clause.

Question 3

Constitutional Restrictions on Power over Individuals: Bill of Rights - Rights Applicable to States

Answer 3

The Supreme Court has stated that only those safeguards in the Bill of Rights that are
“essential to liberty” are applicable to the states through the Fourteenth Amendment.
Included in this concept are: all the First Amendment guarantees (speech, press,
assembly, right to petition, free exercise, and nonestablishment of religion); the Second
Amendment right to bear arms; the Fourth Amendment (unreasonable search and
seizure); some elements of the Fifth Amendment (privilege against self-incrimination;
compensation for taking of private property for public use); the Sixth Amendment (speedy and public trial by impartial jury, notice and right of confrontation, compulsory
process, and right to legal counsel in all serious criminal proceedings); and the Eighth
Amendment (cruel and unusual punishment, excessive bail, and excessive fine provisions).

Question 4

Constitutional Restrictions on Power over Individuals: Bill of Rights - Rights Not Applicable to States

Answer 4

There are three provisions of the Bill of Rights that have not yet been incorporated into
the Due Process Clause:

(i) The Third Amendment prohibition against quartering troops in a person’s home;
(ii) The Fifth Amendment right to a grand jury indictment in criminal cases; and
(iii) The Seventh Amendment right to a jury trial in civil cases.

[See McDonald v. Chicago, 561 U.S. 742 (2010)] The Tenth Amendment, by its terms,
limits the federal government’s power over states, and so is inapplicable to the states.

Question 5

Constitutional Restrictions on Power over Individuals: 13th Amendment

Answer 5

The Thirteenth Amendment provides that neither slavery nor involuntary servitude shall
exist in the United States.

Question 6

Constitutional Restrictions on Power over Individuals: 13th Amendment - No Requirement of State Action

Answer 6

The amendment contains no language limiting its effect to governmental action (e.g.,
“no state shall . . . ”); thus, it is applicable even to private action.

Question 7

Constitutional Restrictions on Power over Individuals: 13th Amendment - Involuntary Servitude

Answer 7

The Court has defined involuntary servitude as forcing someone to perform work—
whether compensated or not—through the use or threatened use of physical injury
or restraint (such as imprisonment), or through the use or threat of legal sanction.
Psychological and other forms of coercion alone are generally inadequate to show involuntary servitude. [See United States v. Kozminski, 487 U.S. 931 (1988)] The Thirteenth
Amendment does not prohibit all forms of labor that one person is compelled to perform
for the benefit of another: It does not apply to compulsory military service, civic obligations such as jury duty, convicted prisoners who must perform work as part of their
criminal sentence, or even recipients of medical scholarships who are required to work
pro bono. However, courts are reluctant to order specific performance of a personal
service contract because the order would be tantamount to involuntary servitude.

Question 8

Constitutional Restrictions on Power over Individuals: 13th Amendment - Congressional Power

Answer 8

The enabling clause of the Thirteenth Amendment gives Congress the power to adopt
appropriate legislation, and the Supreme Court apparently will uphold legislation
proscribing almost any private racially discriminatory act that can be characterized as a
“badge or incident of slavery.”

EXAMPLES
The Supreme Court has upheld legislation:
1) Prohibiting private parties from refusing to rent or sell housing to a person because
of race [Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)];
2) Prohibiting private, nonsectarian schools from refusing to admit nonwhite children
[Runyon v. McCrary, 427 U.S. 160 (1976)]; and
3) Prohibiting a private employer from discriminating in hiring on the basis of race
[Patterson v. McLean Credit Union, 491 U.S. 164 (1989)].

Note: The above are examples of where Congress used its power to adopt statutes
prohibiting “badges of slavery”; the proscribed activities would not necessarily be held
to violate the Thirteenth Amendment absent the legislation.

Question 9

Constitutional Restrictions on Power over Individuals: 14th Amendment

Answer 9

The Fourteenth Amendment prohibits states (not the federal government or private persons)
from depriving any person of life, liberty, or property without due process and equal protection of the law. As discussed above, this amendment is a most important source of limitations
on the states’ power over individuals, because, through the Due Process Clause, most of the
protections of the Bill of Rights are applicable to the states.
Note: The meaning of due process and equal protection will be discussed later in this
outline.

Question 10

Constitutional Restrictions on Power over Individuals: 14th Amendment - Requirement of State Action

Answer 10

The Fourteenth Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements
for state action (see B., below).

Question 11

Constitutional Restrictions on Power over Individuals: 14th Amendment - Scope of Congressional Power

Answer 11

Section 5 of the Fourteenth Amendment is an enabling clause giving Congress the
power to adopt appropriate legislation to enforce the rights and guarantees provided
by the Fourteenth Amendment. Under Section 5, Congress may not expand existing
constitutional rights or create new ones—it may only enact laws to prevent or remedy
violations of rights already recognized by the courts. To adopt a valid law, Congress
must point to a history or pattern of state violation of such rights and adopt legislation
that is congruent and proportional (i.e., narrowly tailored) to solving the identified
violation. Note, however, that when Congress is dealing with a type of discrimination
that the Supreme Court reviews using heightened scrutiny (i.e., race, national origin, or
gender—see XVIII.D., E., infra), Congress will generally have more power to act.

See pg 57-58 of barbri outline for examples

Question 12

Constitutional Restrictions on Power over Individuals: 15th Amendment

Answer 12

The Fifteenth Amendment is a limitation on both the states and the federal government.
It prohibits them from denying any citizen the right to vote on account of race or color. As
indicated above, the Fifteenth Amendment contains an enabling clause that allows Congress
to adopt legislation protecting the right to vote from discrimination.

Question 13

Constitutional Restrictions on Power over Individuals: 15th Amendment

Limitations

Answer 13

Fifteenth Amendment legislation can be limited by other constitutional principles. For
example, the Supreme Court found that the Tenth Amendment and principles of equal
sovereignty among the states require Congress to have extraordinary justification to
adopt legislation requiring some, but not all, states to obtain federal approval before
changing any voting law. [Shelby County v. Holder, 570 U.S. 529 (2013)—subjecting
states to pre-clearance based on formula containing decades-old data unconstitutional]

Question 14

Constitutional Restrictions on Power over Individuals: Commerce Clause

Answer 14

The Supreme Court has allowed Congress to use the Commerce Clause to limit the power of
individuals over other individuals—by adopting legislation barring private racial discrimination in activities “connected with” interstate commerce. Recall that under the affectation
doctrine, almost any activity can be said to be connected with interstate commerce. (See
II.A.4.a.1), supra.)

Question 15

Constitutional Restrictions on Power over Individuals: Commerce Clause - Civil Rights Act

Answer 15

Provisions of the Civil Rights Act of 1964 barring discrimination in places of public accommodation are proper and valid exercises of commerce power.

Question 16

Constitutional Restrictions on Power over Individuals: Commerce Clause - Extent of Commerce power

Answer 16

The reach of the commerce power is broad. Any business that is open to interstate
travelers or that uses products shipped in interstate commerce is covered. [Daniel
v. Paul, 395 U.S. 298 (1969)—private resort held to be a public place of accommodation encompassed within the Act because drinks and entertainment facilities had been
purchased and shipped through interstate commerce]

Question 17

Constitutional Restrictions on Power over Individuals: Rights of National Citizenship

Answer 17

The Supreme Court has also allowed Congress to limit the power of private individuals to
infringe upon others’ rights of national citizenship (e.g., the right of interstate travel, the right
to assemble to petition Congress for redress), without pointing to any specific constitutional
source for the power. [Griffin v. Breckenridge, 403 U.S. 88 (1971)]

Question 18

State Action Requirement

Answer 18

As indicated above, the Constitution generally prohibits only governmental infringement of
constitutional rights. Thus, to find some action unconstitutional, it is generally necessary to
attribute the action to the state, which includes government agencies and officials acting under
the color of state law. However, this does not mean that the act must be directly by a government
actor; “state action” can be found in the actions of seemingly private individuals who (i) perform
exclusive public functions, or (ii) have significant state involvement in their activities.

Question 19

State action requirement: exclusive public functions

Answer 19

The Supreme Court has found that certain activities are so traditionally the exclusive
prerogative of the state that they constitute state action even when undertaken by a private
individual or organization. To date, only running a town and running an election for public
office have been found to be such exclusive public functions.

Question 20

State action requirement: exclusive public functions - (a) Must Be Traditional and Exclusive Function

Answer 20

To be state action, the activity must be both a traditional and exclusive government
function. Thus, the Court has held that a warehouseman authorized by statute to sell
goods stored with him for unpaid charges is not exercising state action when he makes
the sale, because while resolution of private disputes is a traditional public function, it is
not exclusive—the bailor had state law remedies to check abuses by the warehouseman. [Flagg Brothers v. Brooks, 436 U.S. 149 (1978)] State action exists, and due process
guarantees apply, only if the creditor uses judicial or executive agencies to secure
properties in the possession of the debtor.

Question 21

State action requirement: significant state involvement

Answer 21

“State action” also exists whenever a state affirmatively facilitates, encourages, or authorizes
acts of discrimination by its citizens. Note, however, that there must be some sort of affirmative
act by the state approving the private action; it is not enough that the state permits the
conduct to occur.

Question 22

State action requirement: significant state involvement -

(1) Official Encouragement

Answer 22

Purportedly private action will be given state action status if the action is encouraged
or sanctioned by the state.

Question 23

State action requirement: significant state involvement -

(1) Official Encouragement
(a) judicial Approval

Answer 23

State court enforcement of restrictive covenants prohibiting sale or lease of
property to blacks constitutes state action even in civil proceedings between
private parties. [Shelley v. Kraemer, 334 U.S. 1 (1948)]

Question 24

Does the use of peremptory challenges constitute state action?

Answer 24

yes. The use of peremptory challenges, even by a private party, constitutes
state action, both because jury selection is a traditional public function
and because there is overt, significant participation by the government
(the judge) in the jury selection process. Thus, private litigants
and defendants are prohibited from using peremptory challenges in a
discriminatory manner. [See Edmonson v. Leesville Concrete, 500 U.S.
614 (1991); Georgia v. McCollum, 505 U.S. 42 (1992)]

Question 25

State action requirement: significant state involvement -

(1) Official Encouragement
(b) official acts

Answer 25

State action may be found in the absence of an unconstitutional statute or
ordinance if it appears that the state sanctions constitutional violations by its
own officers.

Question 26

State action requirement: significant state involvement -

(1) Official Encouragement
(b) official acts - Discriminatory Law Enforcment

Answer 26

The Court reversed a conviction of sit-in demonstrators where no
statute or ordinance required segregation but the mayor and police had
announced publicly that they would invoke trespass and breach of the
peace laws to enforce a local custom of racial separation in eating places.
[Lombard v. Louisiana, 373 U.S. 267 (1963)]

Question 27

State action requirement: significant state involvement -

(1) Official Encouragement
(b) official acts - Apparent Legal Authority

Answer 27

Even if a state forbids officers from acting in a certain way (e.g.,
depriving persons of their constitutional rights), the forbidden action
may still constitute state action if the state puts the actor in a position to
commit the unconstitutional act.

Question 28

Can a public defender’s actions be considered “state actions”?

Answer 28

No. A public defender does not act for the state when he represents an
indigent client. Therefore, negligence or malpractice by the public
defender is not a denial of due process because the public defender’s
actions are not “state actions.” [Polk County v. Dodson, 454 U.S. 312
(1981)]

Question 29

State action requirement: significant state involvement -

Can states authorize private discrimination by repealing laws banning it?

Answer 29

No. In Reitman v. Mulkey, 387 U.S. 369 (1967), the Court invalidated a state constitutional
provision that repealed all existing state laws banning discrimination in
the sale or lease of property and prohibited reenactment of such laws in the future
because such laws “authorize” private discrimination.

Question 30

State action requirement: significant state involvement - The State as Lessor for a Racially Discriminatory Lessee

Answer 30

In Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), Delaware was
held responsible under the Fourteenth Amendment Equal Protection Clause for
the exclusion of blacks from a coffee shop which was located in a public building.
The shop was constructed by and leased from the state. The maintenance of the
facility was paid for with public funds and Delaware was able to charge a higher
rent because it allowed the restaurant owner to cater to the prejudices of its white
customers.