Structure of Individual Liberties Flashcards
What are the rules for when government can apply constitutional norms to private conduct?
- Generally private conduct need not comply with the Constitution
- Congress, by statute, may apply constitutional norms to private conduct
When may Congress apply constitutional norms to private conduct? (2)
What is one way it may not?
- The 13A can be used to prohibit private race discrimination (note, discrimination doesn’t violate 13A, just a statute under 13A)
- The commerce power can be used to apply constitutional norms to private conduct
- Congress cannot use Section 5 of the 14A to regulate private behavior
What are the exceptions to the requirement of government action?
- The public function exception
2. The entanglement exception
What is the public function exception?
The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government
(e.g., running a city or elections)
What is the entanglement exception?
Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity
(see examples)
What are the bar exam examples of the entanglement exception? (7)
(If discrimination is racial, entanglement exception GENERALLY applies, 1-3)
(If discrimination is other, courts are less likely to apply entanglement exception, 4-5)
(6-7)
- Courts cannot enforce racially restrictive covenants
- There IS state action when the government leases premises to a restaurant that racially discriminates
- There IS state action when a state provides books to schools that racially discriminate
- There is NO state action when a private school that is over 99% funded by the government fires a teacher because of her speech (subsidy is NOT state action)
- There is NO state action when the NCAA orders the suspension of a basketball coach at a state university
- There IS state action when a private entity regulates interscholastic sports within a state
- There is NOT state action when a private club with a liquor license from the state racially discriminates
What is the applicability of the Bill of Rights?
- Applies directly only to the federal government
- Is applied to state and local governments through its incorporation into the due process clause of 14A (but see exceptions)
What are the exceptions of applicability of the Bill of rights to state governments?
(I.e., which BOR rights have not (yet) been applied to the states through 14A?)
- 3A quartering
- 5A right to grand jury in indictment in criminal cases
- 7A right to jury trial in civil cases
- 8A right against excessive fines
What are the four scrutiny elements that must be memorized?
Means
Ends
(Least restrictive analysis)
Burden on whom to show un/constitutionality?
What is the test for rational basis?
Rationally related
Legitimate conceivable purpose
(No least restrictive analysis)
Burden on Challenger
What is the test for intermediate scrutiny?
Substantially related
Important actual purpose
No least restrictive analysis
Burden on Government
What is the test for strict scrutiny?
Necessary
Compelling actual purpose
Least restrictive means
Burden on Government
How does the 13A prohibit private race discrimination?
13A sec. 2 gives congress power to enact statues prohibiting race discrimination.
Discrimination doesn’t violate 13A, only slavery does. BUT discrimination can violate laws enacted by congress under 13A(2).
What are the levels of scrutiny?
Rational basis
Intermediate scrutiny
Strict scrutiny
What is the RB test?
Law will be upheld if it is rationally related to a legitimate government purpose.
Lowest burden for govt
Challenger has burden of proof
