Structure of the Constitution's Protection of INdividual Liberties Flashcards
Is there government Action?
- 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
Instances where Congress has applied constititutional norms to private conduct
- 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
- 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.
Exceptions where private conduct is regulated by the Constitution
- Public Function Exception
- Entaglement
Public Function Exception
Private entity is performing a task traditionally, exclusively done by the government
Entaglement Exception
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
Incorporation of Bill of Rights
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
Amendments that Except to Incorporation
- 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)
Levals of Scrutiny
- Rational Basis
- Intermediate Scrutiny
- STrict Scrutiny
Rational Basis
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
Intermediate Scrutiny
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.
Strict Scrutiny
Law will be upheld if:
- necessary to achieve
- a compelling government purpose.
Government has the burden of proof