Limits on Power Over Individuals, State Action, Retroactive Legislation Flashcards
Bill of Rights
The first 10 Amendments to the Constitution.
Limits federal power.
Extends to the states via the 14th Amendment Due Process Clause, with 4 major exceptions.
13th Amendment
Prohibits slavery and involuntary servitude.
13th Amendment: Enabling Clause
Congress can prohibit racially discriminatory action by anyone, including private citizens.
Bill of Rights: Major exceptions to applicability to states?
The following parts of the Bill of Rights are not incorporated to the states:
(1) 3rd Amendment right to not have a soldier quartered in one’s home.
(2) 5th Amendment right to grand jury indictment in criminal trials
(3) 7th Amendment’s right to jury trial in civil cases.
(4) 8th Amendment right against excessive fines
14th Amendment
Prevents STATES from depriving any person of life, liberty, or property without due process and equal protection of law.
15th Amendment
Prevents FEDERAL and STATE governments from denying a citizen the right to vote on account of race or color.
Do the 14th and 15th Amendments prohibit private action?
No.
However, purely private conduct may be prohibit on a separate constitutional basis.
Section 5 of the 14th Amendment
Gives Congress power to adopt “appropriate legislation” to enforce 14th Amendment rights.
What is “appropriate legislation” under Section 5 of the 14th Amendment?
Congress can only enact laws to prevent or remedy violations of judicially recognized rights.
It cannot expand existing constitutional rights or create new ones.
What type of showing must Congress make when enacting laws under Section 5 of the 14th Amendment?
Congress must point to a history or pattern of state violation of such rights and adopt legislation that is narrowly tailored (“congruent and proportional”) to solving the identified violation.
How can Congress prohibit private racial discrimination?
If there is racial discrimination in activities that might have a substantial effect on interstate commerce, Congress may use its broadly construed commerce power to prohibit such discrimination.
Can Congress protect rights to citizenship?
Yes.
Congress has inherent power to protect such rights, e.g., right to interstate travel, assemble, petition Congress for redress.
What is the significance of “state action”?
The Constitution generally applies only to governmental action. A state action is required to show a constitutional violation.
When can private action become state action?
- Private actor is performing exclusive public functions (“traditionally the exclusive prerogative of the state”).
- When a state affirmatively facilitates, encourages, or authorizes acts of private discrimination.
Do the following constitute state action, and why or why not?
- Running a town
- Conducting an election
Yes, these are state action because they are public functions.
Do the following constitute state action, and why or why not?
- Enforcing restrictive covenants preventing sale/lease of property through use of state courts.
- Leasing premises to a discriminatory lessee where the state derives extra benefit from the discrimination.
Yes, these are state actions because of significant state involvement.
Do the following constitute state action, and why or why not?
- Running a shopping center
- Holding a warehouseman’s lien sale
No, these are not state actions. Such actions are not exclusive public functions.
Do the following constitute state action, and why or why not?
- Granting a monopoly to a utility
- Granting a corporation its charter and exclusive name
No, these are not state actions. There is no significant state involvement regarding discrimination.
How significant must a state’s involvement be in private action to turn it into “state action”?
Mere acquiescence is not enough. The involvement in the private entity must be significant.
Are states constitutionally required to outlaw discrimination?
No.
States are only forbidden to facilitate, encourage, or authorize discrimination.
Contract Clause
Prohibits STATES from enacting a law that retroactively impairs contract rights.
Does the Contract Clause apply to the FEDERAL government?
No.
However, flagrant contract impairment may violate the 5th Amendment Due Process Clause.
If an existing PRIVATE contract is substantially impaired by state legislation, what level of scrutiny applies?
Intermediate scrutiny. Two parts:
The legislation must:
- Serve an important and legitimate public interest +
- is a reasonable and narrowly tailored means of promoting that interest
If an existing PUBLIC contract (state is a party) is impaired by state legislation, what level of scrutiny applies?
Same as that for private contracts, but a little stricter, especially if the legislation reduces the state’s contractual burdens
