Incorporation and State Action Doctrine

Question 1

Doctrine of Incoporation

Answer 1

The concept that personal rights protected in first 8 amendments are incorporated by virtue of 14th amendment through the word “liberty” because a denial of those rights would be a denial of due process of law

Question 2

Which theory has the court adopted and define it: total incorporation or selective incorporation?

Answer 2

The court uses selective incoporation. Instead of incoporating all of the first 8 amendment into the 14th Amendment, the court determines which rights are so central to idea of liberty that to deny would be a denial of due process on a case-by-case basis.

Question 3

Which two Amendments out of the first eight has the court deemed NOT to be an essential right incorporated into the 14th Amendment?

Answer 3

5th Amendement right to have ajury indictment and 7th Amendment right to to jury trial in civil cases.

Question 4

Duncan v. Louisiana: Holding and Takeaway

Answer 4

Holding:

A right to trial by jury is a fundamentl right incorporated into the 14th Amendment because it words to prevent government oppression

Takeaway:

1. Court will use selective incorporationg to determine which rights are incorporated into 14th Amendment
2. There is no clear test the Court uses to determinewhat is applicable to states under 14th amendment. Key language includes rights that are “Basic” “Fundamental” and “Essential”

Question 5

State Action Doctrine

Answer 5

In order for constitutional principles to apply or for an individual to invoke the constitutional protections, there must be state action

Question 6

Exception to the State Action Doctrine

Answer 6

1. 13th Amendment – Private entities cannot own slaves
2. Public Function Exception – When a private entity is performing a public function, the court may find the state action requirement satisfied
3. Entanglement Exception – When the government affirmatively authorizes, encourages, or facilitates private conduct the court may find the state action requirement satisfied

Question 7

Test for the Public Function Exception to the State Action Doctrine

Answer 7

Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. To satisfy state action, it has to be the sort of function that is traditionally exclusively reserved to the state

Question 8

The Civil Rights Cases: United States v. Stanley: Holding and* *Takeaway

Answer 8

Holding:

Civil Rights Act of 1875 is unconstitutional for attempting to regulate private rights

Takeaway:

The Fourteenth Amendment of the Constitution does not give Congress the power to
regulate private rights.

Question 9

Marsh v. Alabama: Holding and Takeaway

Answer 9

Holding:

Distributing flyers outside the post office of a private town is protected by the Constitution

Takeaway:

1. The more an owner for his advantage opens his property for public use, the more rights become circumscribed by the statutory and constitutional rights of those who use it
2. Running a town is a public function, even if performed by a private entity, and therefore it must follow the Constitution

Question 10

Jackson v. Metropolitan Edison Co.: Holding and Takeaway

Answer 10

Holding:

Although the Pennsylvania Public Utilites Company had state conferred monopoly over utitlies, it is not serving a traditionally an exclusive public function, and so is not limited to following the rights in the Constitution

Takeaway:

Court narrows the public function exception to functions that are traditionally exclusively
reserved to the state

Question 11

Shelley v. Kramer: Holding and Takeaway

Answer 11

Holding:

Racially motivated residential restrictive covenant enforced by Missouri Court is not Consitutional

Takeaway:

A state acts between its judicial and legislative departments therefore judicial enforcement is state action (Affirmative state action entangled with private conduct)

**Post-Shelly courts have limited the influence of this holding mostly to areas involving
racial discrimination