PART FOUR: INDIVIDUAL GUARANTEES AGAINST GOVERNMENTAL OR PRIVATE ACTION: LIMITATIONS ON POWER AND STATE ACTION REQUIREMENT Flashcards
1
Q
CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS
A
- Individuals rights restrict gov power (ex. right to speak freely).
- Some rights/restrictions are applicable only to fed gov, some only to state & local govs, & some to all gov bodies.
- A few apply to private action.
- Congress has power to adopt laws to protect individual rights.
- Note: Constit sets min level of protection for individuals.
- States can grant broader protections than those in Constit.
2
Q
Bill of Rights
A
- Bill of Rights: most important source of limits on fed gov’s power.
- Not applicable to states, although most of its safeguards have been applicable to states through 14th Amend DPC
3
Q
Rights Applicable to States
A
- Only those safeguards in the BORs that are “essential to liberty” are applicable to states through 14th Amend.
- Included:
(1) all 1st Amend guarantees (speech, press, assembly, right to petition, free exercise, & nonestablishment of religion);
(2) 2nd Amend right to bear arms;
(3) 4th Amend (unreasonable search & seizure);
(4) some elements of 5th Amend (privilege against self-incrimination; compensation for taking of private property for public use);
(5) 6th Amend (speedy & public trial by impartial jury, notice & right of confrontation, compulsory process, & right to legal counsel in all serious criminal proceedings);
(6) 8th Amend (cruel & unusual punishment, excessive bail, & excessive fine provisions).
4
Q
Rights Not Applicable to States
A
- 3 provisions of BORs that are included not in DPC
1) 3rd Amend prohibition against quartering troops in a person’s home;
2) 5th Amend right to a grand jury indictment in criminal cases; and
3) 7th Amend right to a jury trial in civil cases. - Amendment, limits fed gov’s power over states, & so is inapplicable to the states.
5
Q
Thirteenth Amendment
A
-Neither slavery nor involuntary servitude shall exist in US
6
Q
No Requirement of State Action
A
- Applicable even to private action.
7
Q
Involuntary Servitude
A
- Involuntary servitude is forcing someone to perform work—whether compensated/not—through use/threatened use of physical injury/restraint (imprisonment), or through use/ threat of legal sanction
- Psychological & other forms of coercion alone are generally inadequate to show involuntary servitude.
- 13th Amend does not prohibit all forms of labor that one person is compelled to perform for benefit of another:
- It does not apply to compulsory military service, civic obligations such as jury duty, convicted prisoners who must perform work as part of their criminal sentence, or even recipients of medical scholarships who are required to work pro bono.
- However, cts are reluctant to order specific performance of a personal service K b/c order would amount to involuntary servitude.
8
Q
Congressional Power
A
- Enabling clause of 13th Amend gives Congress power to adopt appropriate legislation forbidding almost any private racially discriminatory act that can be characterized as a “badge or incident of slavery.”
9
Q
Fourteenth Amendment
A
- 14th Amend prohibits states (not fed gov/private persons) from depriving any person of life, liberty, or property w/o due process & equal protection of the law.
- This amend is a most important source of limits on states’ power over individuals, b/c, through DPC, most of the protections of BORs are applicable to states.
- Note: The meaning of due process & equal protection will be discussed later in this outline.
10
Q
Requirement of State Action
A
-14th Amend applies only if there is action by a state/ local gov, gov officer, or private individual whose behavior meets requirements for state action
11
Q
Scope of Congressional Power
A
- 14th Amend enabling clause: gives Congress power to adopt laws to enforce 14th Amend rights
- Under Sect 5, Congress may not expand existing constitutional rights/create new ones
- It may only enact laws to prevent/remedy violations of rights already recognized by cts.
- To adopt a valid law, Congress must point to a history/pattern of state violation of such rights & adopt legislation that is narrowly tailored to solving identified violation.
- Note: If Congress is dealing w/ discrimination that SC reviews using heightened scrutiny (race, national origin, or gender), Congress will have more power to act.
12
Q
Fifteenth Amendment
A
- 15th Amend is a limit on both states & fed gov.
- It prohibits them from denying any citizen right to vote b/c of race/color.
- 15th Amend enabling clause: allows Congress to adopt laws protecting right to vote from discrimination.
13
Q
Limitations
A
- 15th Amend legislation can be limited by other constitutional principles.
- Ex. SC found that 10th Amend & principles of equal sovereignty among states require Congress to have extraordinary justification to adopt legislation requiring some, but not all, states to obtain fed approval b/f changing any voting law.
14
Q
Commerce Clause
A
- Congress can use Commerce Clause to limit power of individuals over other individuals—by adopting legislation barring private racial discrimination in activities “connected with” interstate commerce.
- Affectation doctrine: almost any activity can be said to be connected w/ interstate commerce.
15
Q
Civil Rights Act
A
Provisions of CRA of 1964 barring discrimination in places of public accommodation are proper & valid exercises of commerce power
16
Q
Extent of Commerce Power
A
- Reach of commerce power is broad.
- Any business that is open to interstate travelers/that uses products shipped in interstate commerce is covered.
- Ex. private resort held to be a public place of accommodation w/in the Act b/c drinks & entertainment facilities had been purchased & shipped through interstate commerce
17
Q
Rights of National Citizenship
A
- Congress can limit power of private individuals to infringe upon others’ rights of national citizenship (ex. right of interstate travel, right to assemble to petition Congress for redress), w/o pointing to any specific constitutional source for power
18
Q
STATE ACTION REQUIREMENT
.
A
- Constit generally prohibits only gov infringement of constitutional rights.
- Thus, to find some action unconstitutional, there must be state action, includes gov agencies & officials acting under color of state law.
- Act does not have to be directly by govt actor; “state action” can be found in actions of private individuals who
(1) perform exclusive public functions, or
(2) have significant state involvement in their activities
19
Q
Exclusive Public Functions
A
- Certain activities are so traditionally the exclusive prerogative of state that they constitute state action even when undertaken by a private individual/ organization.
- To date, only running a town & running an election for public office have been found to be such exclusive public functions.
20
Q
Must Be Traditional and Exclusive Function
A
- To be state action, activity must be both a traditional & exclusive gov function.
- Thus, Ct has held that a warehouseman authorized by statute to sell goods stored w/ him for unpaid charges is not exercising state action when he makes the sale, b/c while resolution of private disputes is a traditional public function, it is not exclusive—the bailor had state law remedies to check abuses by the warehouseman.
- State action exists, & due process guarantees apply, only if creditor uses judicial/executive agencies to secure properties in debtor’s possession
21
Q
Significant State Involvement—Facilitating Private Action
A
- “State action” exists when a state affirmatively facilitates, encourages, or authorizes discrimination by its citizens.
- Note, there must be some sort of affirmative act by state approving private action; it is not enough state permits conduct to occur.
22
Q
Instances of Significant State Involvement: Official Encouragement
A
- Private action will be state action status if action is encouraged/sanctioned by state.
23
Q
Judicial Approval
A
- State ct enforcement of restrictive covenants prohibiting sale/lease of property to blacks constitutes state action even in civil proceedings between private parties.
24
Q
Peremptory Challenges
A
- Use of peremptory challenges, even by private party, constitutes state action, both b/c jury selection is a traditional public function & b/c there is overt, significant participation by gov (judge) in jury selection process.
- Thus, private litigants & Ds are prohibited from using peremptory challenges in a discriminatory manner.
25
Official Acts
- State action may be found in absence of an unconstitutional statute/ordinance if it appears that state sanctions constitutional violations by its own officers.
26
Discriminatory Law Enforcement
- Ct reversed a conviction of sit-in demonstrators where no statute /ordinance required segregation but mayor & police had announced publicly that they would invoke trespass & breach of the peace laws to enforce a local custom of racial separation in eating places.
27
Apparent Legal Authority
- Even if a state forbids officers from acting in a certain way (depriving persons of their constitutional rights), forbidden action may still constitute state action if state puts actor in a position to commit unconstitutional act.
28
Public Defenders
- Public defender does not act for the state when he represents an indigent client.
- Therefore, negligence/malpractice by public defender is not a denial of due process b/c public defender’s actions are not “state actions
29
State Authorization
- Ct invalidated a state constitutional provision that repealed all existing state laws banning discrimination in sale/lease of property & prohibited reenactment of such laws in the future b/c such laws “authorize” private discrimination.
30
The State as Lessor for a Racially Discriminatory Lessee
- Delaware was held responsible under 14th Amend Equal Protection Clause for exclusion of blacks from a coffee shop which was located in a public building.
- The shop was constructed by & leased from the state.
- The maintenance of facility was paid for w/ public funds & Delaware was able to charge a higher rent b/c it allowed the restaurant owner to cater to prejudices of its white customers.
31
Administration of Private Discriminatory Trust by Public Officials
State action exists where city personnel maintain a park, “open to all except blacks,” under a private trust.
32
Entwinement of State and Private Entities
- TFT a state entity helps formulate & adopts the rules of a private entity, & chooses to follow the order of the private entity pursuant to those rules, does not convert the private entity’s action into state action.
- However, a state may be so entwined w/ a private org that the org’s actions will be considered state action
33
Instances of Insignificant State Involvement:
Heavily Regulated Businesses and/or Granting of a Monopoly to a Utility
Electric Company
- State action will not be found merely b/c state has granted a monopoly to a business/heavily regulates it.
Nursing Home
- A nursing home operated by a private corp did not exercise state action when it discharged Medicaid patients, even though its operation was extensively regulated by the gov.
School
- A school operated by a private corp did not exercise state action when it discharged teachers (allegedly in violation of 1st Amendment rights) even though the school had Ks w/ the state to educate/care for many of its students & it received almost all of its operating funds from the gov.
34
Licensing and Provision of Essential Services
- Granting a liquor license & providing essential services (police, fire, water, power, etc.) to a private club that imposes racial restrictions on its members & guests are not sufficient to constitute state action
35
Congressional Grant of Corporate Charter and Exclusive Name
- Congressional grant of a corporate charter & exclusive use of a name is not sufficient to constitute state action.
- Ex. congressional charter & grant of exclusive name “Olympic” does not clothe United States Olympic Committee w/ state action]
36
No Government Duty to Protect Individuals from Harm by Private Persons
- Mere refusal of gov agents to protect a vic from harm by a private person will not result in a finding that the harm was attributable to “state action,” at least when state law does not give vics right to gov protection.
- Ex. gov not responsible for harm inflicted on a child by his father, even though gov social worker had reason to believe child was being abused & did nothing to protect the child
- However, if gov employees enter into an agreement/ conspiracy w/ private persons to cause harm to a vic, vic’s injuries are result of state action; private persons & gov employees w/ whom they conspired, will have violated vic’s constitutional rights.
37
TIPS FOR BAR EXAM
(1) State Must Be “Significantly Involved” in Private Entity
- State must be “significantly involved” in the private entity.
- Merely granting a license/providing essential services is insufficient.
(2) No Constitutional Mandate to Outlaw Discrimination
- States are not constitutionally required to outlaw discrimination.
- Constit forbids only their encouraging/authorizing it.
