Structure of the Constitution's Protection of Individual Liberties

Question 1

The Constitution only applies to . . .

Answer 1

Government Action

Question 2

As a general rule, private conduct need/need not comply with the Constitution

Answer 2

Need not

Question 3

True or False: Congress may apply constitutional norms to private conduct via statute

Answer 3

True

Question 4

Explain how the 13th Amendment can be use to prohibit race discrimination.

Answer 4

The discrimination would not violate the 13th itself (that governs slavery and involuntary servitude only), but it can violate a statute adopted pursuant to Congress’ power under the 13th.

Question 5

In which two ways can Congress apply constitutional norms to private conduct?

Answer 5

Statute

Commerce Power

Question 6

Congress can/cannot use Section 5 of the 14th Amendment to regulate private behavior.

Answer 6

Cannot

Question 7

As a general rule, private conduct need not comply with the Constitution. What are the two primary exceptions?

Answer 7

The Public Function Exception

The Entanglement Exception.

Question 8

Explain the Public Function Exception to the general rule that private conduct need not comply with the Constitution.

Answer 8

The Constitution applies if a private entity is performing a task traditionally, exclusively done by the gov’t (utilities don’t count–why? many private utility companies)

Question 9

Explain the Entanglement Exception to the general rule that private conduct need not comply with the Constitution.

Answer 9

The Constitution applies if the gov’t affirmatively authorizes, encourages, or facilitates unconstitutional activity.

Question 10

The rule that courts cannot enforce racially restrictive covenants is an example of the ___ Exception to the general rule that . . .

Answer 10

Entanglement

Exception to the general rule that private conduct need not comply with the Constitution.

Question 11

Is there gov’t action when the gov’t leases premises to a business that is racially discriminatory?

Answer 11

Yes

Question 12

A gov’t subsidy alone is/isn’t enough to support a finding of state action

Answer 12

Is NOT

Question 13

There is/isn’t state action when a state provides books to public school that racially discriminate?

Answer 13

Isn’t

Question 14

There is/isn’t state action when a private school that is over 99% funded by the gov’t fires a teacher because of her speech. Explain

Answer 14

Isn’t.

A gov’t subsidy alone is/isn’t enough to support a finding of state action. Here, gov’t had nothing to do with it.

Question 15

There is/isn’t state action when the NCAA orders the suspension of a basketball coach at a state university.

Answer 15

Isn’t

Question 16

There is/isn’t state action where a private entity regulates interscholastic sports within a state.

Answer 16

IS

Question 17

There is/isn’t state action where a private club with a liquor license from the state racially discriminates.

Answer 17

Is not

Question 18

To whom does the Bill of Rights apply directly?

Answer 18

Federal Government

Question 19

The Bill of Rights is applied to state and local gov’t through its incorporation into the due process clause of . . .

Answer 19

14th Amendment

Question 20

What are the 4 exceptions to the Bill of Rights incorporation to state and local gov’t via the 14th Amendment.

Answer 20

The 3rd Amnd right to not have soldiers quartered in your home

The 5th Amnd right to grand jury indictment in criminal cases

The 7th Amnd right to jury trial in civil cases

The 8th Amnd right against excessive fines (just this portion of the 8th)

Question 21

In order to pass at the rational basis test, what must be true of the law?

Answer 21

It must be rationally related to a legitimate conceivable gov’t purpose

Question 22

In order to pass at the intermediate scrutiny, what must be true of the law?

Answer 22

It must be substantially related to an important actual gov’t purpose.

Question 23

In order to pass strict scrutiny, what must be true of the law?

Answer 23

It must be necessary to achieve a compelling (actual) gov’t purpose AND be the least restrictive means of doing so