PROTECTION OF INDIVIDUAL LIBERTIES

Question 1

Government Action (“State Action) Requirement

Answer 1

Const. applies only to govt action (federal, state or local)
* Private conduct doe into have to comply with the Const. subject to the exceptions below

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, running a town)

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; govt leases premises to
restaurant that racially discriminates; private entity
regulates interscholastic sports in state

> > Examples of No State Action: Govt grants liquor license
to racially discriminatory private club; private school
receiving govt funds fires a teacher over speech; govt
subsidy insufficient to finding state action; NCAA orders
suspension of basketball coach at a state university

Note: Congress may indirectly regulate private conduct though the Commerce Clause (if it affects private commerce) or through the 13th A (enabling Congress to pass legislation enforcing the 13th A ban on slavery). Only slavery can violate the 13th A

Question 2

Bill of Rights: Application to Federal & State Govt

Answer 2

The Bill of Rights only applies directly to the federal govt
* Certain provisions of the BOR apply to state and local govts under the incorporation doctrine
* The SC has selectively held specific BOR provisions applicable to the states through incorporation into the 14th A Due Process Clause
» Most BOR provisions are now incorporated

EXCEPTIONS: Certain provisions of the BOR are not incorporated by the 14th A to states, including:

• 3rd A right to not have soldiers quartered in homes
• 5th A right to grand jury indictment in criminal cases
• 7th A right to jury trial in civil cases
• 8th A right against excessive fines

Reverse Incorporation
* The 14th A Equal Protection Clause does not apply directly to the fed govt, but has been held to apply to the federal govt through the 5th A DP Clause

Question 3

Levels of Scrutiny

Answer 3

Courts use 3 tests to analyze the constitutionality of govt acts under substantive due process and equal protection

1) Rational Basis–A law will be upheld if it 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 completely irrational or arbitrary
* BOP = Challenger of the law bears the burden of proof

2) 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
* BOP = Govt bears the burden of proof

3) Strict Scrutiny–A law will be upheld of 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
* BOP = Govt bears the burden of proof