Individual Liberties

Question 1

The 14A incorporates the bill of rights to apply to state govts as well, EXCEPT for:

Answer 1

• 5A prohibition against criminal trials w/o grand jury indictment
• 7A right to jury trial in civil cases

Question 2

What power does Section 5 of the 14A give Congress?

Answer 2

Power to enact laws appropriate to enforce rights guaranteed by 14A. Congress may NOT create new rights. For the law to be valid, Congress must point to history/pattern of state violation + adopt legislation congruent + proportional to solving the issue.

Question 3

Which types of actors may be considered state actors and therefore covered by the 14A?

Answer 3

• public actors
• private actors who perform duties traditionally thought to be exclusively public functions (e.g. company town running parks)
• private actors who have significant state involvement - i.e. state affirmatively facilitates/encourages/authorizes discriminatory conduct - sufficient entwinement

Question 4

To which claims do the levels of scrutiny apply?

Answer 4

14A equal protection and due process (and 5A for federal govt), and 1A

Question 5

What are the 3 levels of scrutiny & the differences between each?

Answer 5

(1) rational basis review: law must be rationally related to a legit govt purpose (low bar
- applies to regulations that do not impact fundamental rights or involve suspect/quasi-suspect classes
- burden is on P/challenger to law

(2) intermediate scrutiny: law must be substantially related to an important govt purpose
- - applies to quasi-suspect classes (gender, legitimacy)
- - burden is usually on the govt

(3) heightened scrutiny: law must be necessary to achieving compelling govt purpose - i.e. least restrictive means to do so
- - applies to fundamental rights (interstate travel, voting, 1A) + suspect classifications (race, national origin, alienage)
- - govt has burden of proof