Limits on Power Over Individuals, State Action, Retroactive Legislation

Question 1

Bill of Rights

Answer 1

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.

Question 2

13th Amendment

Answer 2

Prohibits slavery and involuntary servitude.

Question 3

13th Amendment: Enabling Clause

Answer 3

Congress can prohibit racially discriminatory action by anyone, including private citizens.

Question 4

Bill of Rights: Major exceptions to applicability to states?

Answer 4

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

Question 5

14th Amendment

Answer 5

Prevents STATES from depriving any person of life, liberty, or property without due process and equal protection of law.

Question 6

15th Amendment

Answer 6

Prevents FEDERAL and STATE governments from denying a citizen the right to vote on account of race or color.

Question 7

Do the 14th and 15th Amendments prohibit private action?

Answer 7

No.

However, purely private conduct may be prohibit on a separate constitutional basis.

Question 8

Section 5 of the 14th Amendment

Answer 8

Gives Congress power to adopt “appropriate legislation” to enforce 14th Amendment rights.

Question 9

What is “appropriate legislation” under Section 5 of the 14th Amendment?

Answer 9

Congress can only enact laws to prevent or remedy violations of judicially recognized rights.

It cannot expand existing constitutional rights or create new ones.

Question 10

What type of showing must Congress make when enacting laws under Section 5 of the 14th Amendment?

Answer 10

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.

Question 11

How can Congress prohibit private racial discrimination?

Answer 11

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.

Question 12

Can Congress protect rights to citizenship?

Answer 12

Yes.

Congress has inherent power to protect such rights, e.g., right to interstate travel, assemble, petition Congress for redress.

Question 13

What is the significance of “state action”?

Answer 13

The Constitution generally applies only to governmental action. A state action is required to show a constitutional violation.

Question 14

When can private action become state action?

Answer 14

1. Private actor is performing exclusive public functions (“traditionally the exclusive prerogative of the state”).
2. When a state affirmatively facilitates, encourages, or authorizes acts of private discrimination.

Question 15

Do the following constitute state action, and why or why not?

1. Running a town
2. Conducting an election

Answer 15

Yes, these are state action because they are public functions.

Question 16

Do the following constitute state action, and why or why not?

1. Enforcing restrictive covenants preventing sale/lease of property through use of state courts.
2. Leasing premises to a discriminatory lessee where the state derives extra benefit from the discrimination.

Answer 16

Yes, these are state actions because of significant state involvement.

Question 17

Do the following constitute state action, and why or why not?

1. Running a shopping center
2. Holding a warehouseman’s lien sale

Answer 17

No, these are not state actions. Such actions are not exclusive public functions.

Question 18

Do the following constitute state action, and why or why not?

1. Granting a monopoly to a utility
2. Granting a corporation its charter and exclusive name

Answer 18

No, these are not state actions. There is no significant state involvement regarding discrimination.

Question 19

How significant must a state’s involvement be in private action to turn it into “state action”?

Answer 19

Mere acquiescence is not enough. The involvement in the private entity must be significant.

Question 20

Are states constitutionally required to outlaw discrimination?

Answer 20

No.

States are only forbidden to facilitate, encourage, or authorize discrimination.

Question 21

Contract Clause

Answer 21

Prohibits STATES from enacting a law that retroactively impairs contract rights.

Question 22

Does the Contract Clause apply to the FEDERAL government?

Answer 22

No.

However, flagrant contract impairment may violate the 5th Amendment Due Process Clause.

Question 23

If an existing PRIVATE contract is substantially impaired by state legislation, what level of scrutiny applies?

Answer 23

Intermediate scrutiny. Two parts:

The legislation must:

1. Serve an important and legitimate public interest +
2. is a reasonable and narrowly tailored means of promoting that interest

Question 24

If an existing PUBLIC contract (state is a party) is impaired by state legislation, what level of scrutiny applies?

Answer 24

Same as that for private contracts, but a little stricter, especially if the legislation reduces the state’s contractual burdens

Question 25

What are “ex post facto” laws?

Answer 25

Laws that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Question 26

How do you identify an “ex post facto” law?

Answer 26

A law is retroactively altered in a substantially prejudicial manner if it:

Makes criminal an act that was innocent when done, or

Prescribes greater punishment for an act that was prescribed when the act was done, or

Reduces the evidence required to convict a person of a crime from what was required when the act was done

Question 27

Do the Ex Post Facto Clauses apply to civil cases?

Answer 27

No. They apply only to criminal cases.

Question 28

What are bills of attainder?

Answer 28

Legislative acts that inflict punishment on individuals without a judicial trial.

Question 29

Who can pass bills of attainder?

Answer 29

No one.

Both FEDERAL and STATE governments are prohibited from passing bills of attainder.

Question 30

If a retroactive law does not violate the Contracts, Ex Post Facto, and Bill of Attainder Clauses, is it constitutional?

Answer 30

No, unless it passes muster under the Due Process Clause.

If no fundamental right is involved, the retrospective law need only be rationally related to a legitimate state interest.