framework for protecting individual liberties Flashcards
whose action does the constitution restrict?
government action
(except 13th Am)
can states give you more rights than the constitution?
yes
constitution is minimum threshold
exceptions to incorporation doctrine
(1) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment
(2) the Seventh Amendment’s right to a jury trial in civil cases.
incorporation
14th Am due process clause incorporates bill of rights against state governments [because bill of rights is technically just against federal governments]
who are state actors for purposes of state action principle
(1) LAWS
(2) OFFICERS – state, local, or federal government officers acting in official capacity (even if acting illegally or contrary to policy)
(3) PRIVATE INDIVIDUALS if:
* Perform exclusive public functions,
or
* Have significant state involvement
(4) ANYONE IF EXCLUSIVE PUBLIC FUNCTION
activities are so traditionally the exclusive prerogative of the state
what are some exclusive public functions
running a town (company running company town is state action)
running prison
conducting an election
how to determine whether state action is there when there is mixed public private action
There must be significant state involvement in the challenged conduct, or sufficient entwinement between state and private action that it is fair to say the government is responsible
NOT licensing or regulating private businesses or occupations
NOT granting a monopoly to a utility
NOT granting a corporation its charter and exclusive name
NOT organization with some members who are gov’t actors (like NCAA)
examples of state action
A state leases a premises to a restaurant that racially discriminates. Is there state action here? YES
A state grants a liquor license to a private club that racially discriminates. Is there state action here? NO
The NCAA, a voluntary association of public and private universities that regulates collegiate sports, ordered the firing of a state college coach. Is there state action here? NO
A voluntary association of mostly public and some private high schools, and run mainly by public school officials during school hours, regulates sports within a state. Is there state action here? YES
are states constitutionally required to outlaw discrimination?
No
They are only forbidden to facilitate, encourage, or authorize it.
levels of scrutiny
rational basis
intermediate
strict
when does rational basis review apply
laws that do not burden fundamental rights
laws that do not discriminate against suspect classes such as race
laws do not discriminate against quasi-suspect class such as gender
what is rational basis review
rationally related to legitimate government purpose
super permissive
government almost always wins
intermediate scrutiny applies when?
laws that discriminate against quasi-suspect classification
what is intermediate scrutiny test
The law is upheld if it is substantially related to an important government purpose.
there must be an exceedingly persuasive justification
law does not have to be perfect fit or least restrictive
burden probably on government but outcome varies
strict scrutiny applies when
Regulations affecting fundamental rights (for example, interstate travel, voting, and First Amendment rights) or involving suspect classifications (that is, race, national origin, and alienage)
