Structure of the Constitution's Protection of Individual Liberties

Question 1

The US Constitution only applies to certain actors - who are they?

Answer 1

Government action (not private conduct).

Question 2

How can Congress apply constitutional norms to private conduct?

Answer 2

1. By statute
2. 13th Amendment prohibits private race discrimination by prohibiting slavery
3. Commerce clause

Question 3

How is a private entity treated when they take over a traditional government function?

Answer 3

Like a government actor. The constitution applies to them! (This is the public function exception)

Question 4

What is the entanglement exception to the rule that the constitution does not apply to private conduct?

Answer 4

When the government affirmatively authorizes, encourages, or facilitates (but a privat actor actually commits) unconstitutional activity.

Question 5

What are the three key examples of private conduct that is deemed unconstitutional state activity?

Answer 5

1. racially discriminatory covenants
2. when government leases premises to a restaurant that racially discriminates
3. when government provides free books to private schools that racially discriminate

Question 6

What are four key examples of private conduct (that looks tangled up with government) that is NOT considered state action?

Answer 6

1. private school 99% funded by government fires a teacher because of his/her speech.
2. NCAA orders suspension of a basketball coach at a state university for his/her speech.
3. Private entity that regulates interscholastic sports within a state.
4. Private club with a state liquor license is racially discriminating.

Question 7

How is the Bill of Rights applicable to the states?

Answer 7

Through section 5 of the 14th Amendment.

Question 8

Which Bill of Rights rights are not incorporated to the states?

Answer 8

1. 3rd A - quartered soldiers
2. 5th A - grand jury indictment in criminal cases
3. 7th A - jury trial in civil cases
4. 8th A - right against excessive fines

Question 9

Define rational basis scrutiny, and who has the burden of proof?

Answer 9

Law must be rationally related to a legitimate government interest. The plaintiff has the burden of showing arbitrariness.

Question 10

Define intermediate scrutiny, and who has the burden of proof?

Answer 10

Law must be substantially related to an important government interest. The government must prove these elements.

Question 11

Define strict scrutiny, and who has the burden of proof?

Answer 11

Law must be narrowly tailored to a compelling government interest (aka least restrictive alternative). The government must prove these elements.