Structure of the Constitution's Protection of INdividual Liberties Flashcards

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1
Q

Is there government Action?

A
  • Constitution applies only to government (or state) action.
  • Private conudct does not need to comply with the Constitution.
  • Congress may apply constitutional norms to private conduct through statute
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2
Q

Instances where Congress has applied constititutional norms to private conduct

A
  1. 13th Amendment: Congress can prohibit private race discrimination and is granted broad powers to enforce it. Amendment consideres only slavery but granted Congress power to broadly construe its enforcement
  2. Commerce Clause: apply constitutiona norms to private conudct such as Civil Rights Act of 1964 (Olly’s bbq)

CANNOT USE Sec. 5 of 14th Amendment to regulate private behavior. Can only regulate state and local governments.

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3
Q

Exceptions where private conduct is regulated by the Constitution

A
  1. Public Function Exception
  2. Entaglement
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4
Q

Public Function Exception

A

Private entity is performing a task traditionally, exclusively done by the government

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5
Q

Entaglement Exception

A

Constitution applies if the government affirmatively authorizes, encourages or facilitates an unconstitutional activity

EXAMPLES OF STATE ACTION:

  • court enforcing racially restrictive covenants
  • when government leases space to an entitty that racially discriminates
  • free books to private schools that discriminate
  • private entity regulates interscholastic sports within a state

EXAMPLES OF NO STATE ACTION:

  • private schools w/ over 99% funding by government fires teacher over their speech
  • NCAA orders the supsension of a basketball coach at state university
  • private club with a liquor license from the state racially discriminates
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6
Q

Incorporation of Bill of Rights

A

Generally, bill of rights applies only to federal government

  • Bill of rights applies to state and local government through its incorporation in the due process clause of the 14th Amendment
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7
Q

Amendments that Except to Incorporation

A
  • 3rd Amenmdent: Quartering Soldiers
  • Fifth Amendment right to Grand jury indictment in federal cases
  • Seventh Amendment right to trial by jury in civil cases
  • Eigth Amendment right against excessive fines (other partys read into it)
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8
Q

Levals of Scrutiny

A
  1. Rational Basis
  2. Intermediate Scrutiny
  3. STrict Scrutiny
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9
Q

Rational Basis

A

Upheld if:

  • it is rationally related
  • to a legitimate government purpose

Burden of challenger to establish that there is no conceivable legit purpose or the law is not rationally related to it

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10
Q

Intermediate Scrutiny

A

a law is upheld if:

  • it is substantially related
  • to an important government purpose

Government has burden of proof to show actual purpose and that it is narrowly tailored to achieve objective.

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11
Q

Strict Scrutiny

A

Law will be upheld if:

  • necessary to achieve
  • a compelling government purpose.

Government has the burden of proof

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