Protection of Individual Liberties Flashcards
Government action requirement
Const. applies only to govt action (fed state or local)
-Private conduct does not have to comply with Const subject to exceptions
-Note: Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through 13A (enabling Congress to pass legislation enforcing the 13A ban on slavery)
Government action requirement-Exceptions
Const will apply to private conduct where:
1) Exclusive public function: a private entity performs a task traditionally performed by govt (narrow exception)
-Arises only if a private entity exclusively operates a govt function (e.g. private prisons, elections)
2) Significant state involvement (entanglement): govt affirmatively authorizes or facilitates private conduct
-State must affirmatively approve or validate private conduct: permitting it alone is insufficient
-Examples of state action: court enforces a racially restrictive covenant; 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
Bill of Rights: Application to Fed and State Govs
BOR only applies directly to the fed govt
* Certain provisions of the BOR apply to state and local govts through the incorporation doctrine
* Incorporation: the SC has held specific BOR provisions applicable to the states through incorporation into the 14A Due Process Clause
-Most BOR provisions are now incorporated
BOR Application-Exceptions
Certain provisions of the BOR are not incorporated by the 14A to states, including:
* 3A right not to have soldiers quartered in homes
* 5A right to grand jury indictment in criminal cases
* 7A right to jury trial in civil cases
Reverse incorporation
14A Equal Protection Clause does not apply directly to the fed govt but has been held to apply to the fed govt through the 5A DP Clause
Enforcement of post civil war amendments
The 13, 14, and 15A each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these Amendments guarantee
13th Amendment
Prohibition on slavery and involuntary servitude
* Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a “badge or incident of slavery”
* E.g. Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race
* No state action requirement: 13A applies to private action by its terms
14th Amendment
Prohibitis 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, constitutional 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
15th Amendment
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
* Much less likley to appear on the bar exam
Rational basis
A law will be upheld if it is rationally related to a legitimate govt. purpose
* Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
* A law will almost always be upheld under rational basis review unless it is completley irrational or arbitrary
* Burden of proof: challenger bears the burden of proof
Intermediate scrutiny
A law will be upheld if it is substantially related to an important govt. purpose
* Govt. goal must be important; courts look at the actual reason the law was enacted
* Burden of proof: govt. bears the burden of proof
Strict scrutiny
A law will be upheld if it is necessary to achieve a compelling govt. interest
* Govt. must show there are no less restrictive or burdensome means of achieving its goal
* Courts look at the actual reason the law was enacted
* Burden of proof: govt. bears the burden of proof
