Protection of Individual Liberties

Question 1

govt action required

Answer 1

Const. applies ONLY to govt action (fed, state, or local)

NOTE: private conduct does NOT have to comply w/ Const. (unless exceptions apply)

Question 2

private conduct exceptions

Answer 2

Const will apply to private conduct where:
1. exclusive public function
2. significant state involvement (entanglement)

Question 3

exclusive public function

Answer 3

a private entity performs a task traditionally performed by govt (narrow exception)

NOTE: arises only if a private entity exclusively operates a govt function

eg, state prisons, elections

Question 4

significant state involvement (entanglement)

Answer 4

govt affirmatively authorizes or facilitates private conduct

NOTE: state must affirmatively approve or validate private conduct (permitting it alone is insufficient)

Examples of state action: court enforces a racially restrictive convenant; state provides books to private schools that racially discriminate
Examples of no state action: govt grants liquor license to racially discriminatory private club; private school receiving govt funds fires a teacher over speech

Question 5

Congress indirectly regulates private conduct

Answer 5

Congress may indirectly regulate private conduct through:
1. The Commerce Clause (if it affects interstate commerce), or
2. 13A (enabling Congress to pass legislation enforcing the 13A ban on slavery)

Question 6

Bill of Rights (BoR) application

Answer 6

ONLY applies to fed govt (not states govt)

BUT, now certain provisions now apply to state & local govts through the incorporation doctrine

Question 7

incorporation doctrine

Answer 7

SC has held specific BoR provisions applicable to states through incorporation into the 14A Due Process (DP) clause

NOTE: most BoR provisions are now incorporated

Question 8

non-incorporated BoR provisions

Answer 8

certain provisions of BoR NOT incorporated by 14A to states includes:
1. 3A right to not have soldiers quartered in homes
2. 5A right to grand jury indictment in criminal cases
3. 7A right to jury trial in civil cases

Question 9

reverse incoporation

Answer 9

14A Equal Protection (EP) clause does NOT apply directly to fed govt, but has been held to apply to ged govt through 5A DP clause

Question 10

state action doctrine

Answer 10

govt action needed for Const to apply:
- laws
- Acts of govt officials in official capacity
- NOT private action (except activities traditionally + exclusively performed by govt)
- significant state involvement in private conduct (NOT regulating activities)

Question 11

enforcement of post-civil war amendments

Answer 11

13A, 14A, and 15A each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these amendments guarantee

Question 12

13A

Answer 12

prohibition on slavery & involuntary servitude
* Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a “badge or incident of slavery”

NO state action requirement: 13A applies to private action by its terms

eg, Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race

Question 13

14A

Answer 13

prohibits states from depriving any person of life, liberty, or property without due process and equal protection
* Congress can adopt legislation to enforce rights and guarantees, but may NOT expand existing (or create new) Const. rights

Requirements: law passed pursuant to 14A must:
1. point to a history and pattern of state violation of rights; and
2. be proportional and congruent to solving the violation

Question 14

15A

Answer 14

prohibits state and fed govts from denying any citizen the right to vote on the basis of race or color
- can be limited by other Const. principles

NOTE: much less likely to appear on bar exam

Question 15

levels of scrutiny generally

Answer 15

Courts use 3 tests to analyze the constitutionality of govt acts under substantive due process and equal protection
1. rational basis
2. intermediate scrutiny
3. strict scrutiny

NOTE: memorize these tests verbatim

Question 16

rational basis

Answer 16

a law will be upheld if it’s rationally related to a legitimate govt purpose
- any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
- Govt. usually wins: always upheld unless its completely irrational or arbitrary
- Burden of proof: challenger bears burden of proof

no fundamental rights
no suspect classification

Question 17

intermediate scrutiny

Answer 17

a law will be upheld if it is substantially related to an important/significant govt. purpose
- govt goal must be important; courts look at actual reason the law was enacted
- Outcome varies: narrowly tailored rule
- Burden of proof: govt bears burden of proof

Does NOT have to be least restrictive

quasi-suspect classification (eg, gender)

Question 18

strict scrutiny

Answer 18

a law will be upheld if it’s necessary to achieve a compelling govt interest
- courts look at actual reason the law was enacted
- Govt usually loses
- Least restrictive alternative: govt must show there are NO less restrictive or burdensome means of achieving its goal
- Burden of proof: govt bears burden of proof

fundamental right or suspect classification (eg race)