Structures of Individual Liberties

Question 1

Process for determining whether a government action has occurred:

Answer 1

1. Constitution applies only to government action; Private conduct is not covered;
2. Congress can apply constitutional norms to private conduct by passing laws:
   a. 13th amendment - prohibit race discrimination;
   b. commerce clause
   c. Cannot use Section 5 of the 14th amendment to regulate private behavior.

Question 2

When must private conduct comply with the Constitution?

Answer 2

1. Public Function Exception: If a private entity is performing a task traditionally, exclusively done by the government. (private town, voting)
2. Entanglement Exception: government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
   a. Courts cannot enforce racially restrictive covenants;
   b. Government leases premises to a restaurant that racially discriminates;
   c. State provides books to schools that discriminate;
   d. No state action: private school that is 99% funded by the government fires a teacher based on her speech;
   e. No state action: NCAA orders suspension of BBall coach at state U;
   f. private entity regulates interscholastic sports within a state;
   g. No state action when a private club with a liquor license from the state racially discriminates.

Question 3

What rights are and are not incorporated from the Bill of Rights?

Answer 3

All except:
1. 3rd Amendment to not have soldiers quartered in a person’s home;
2. 5th Amend. right to grand jury in criminal cases;
3. 7th Amend. right to jury in civil cases;
8th Amend. right against excessive fines.

Question 4

What are the three levels of scrutiny?

Answer 4

1. Rational Basis Test: law upheld if rationally related to a legitimate government purpose;
2. Intermediate: Law upheld if substantially related to an important government purpose.
3. Strict: Law upheld if necessary to achieve a compelling government purpose; must be crucial, vital, and compelling to fulfill the actual government purpose.