The Scope of Constitutional Coverage

Question 1

The Scope of Constitutional Coverage Part I

Answer 1

A. The Application of the Bill of Rights to State and Local Governments
B. The Application of the Bill of Rights to Private Actors

Question 2

Key Questions

Answer 2

• Who is subject to the Bill of Rights?
• How is the Bill of Rights made applicable to these actors?

Question 3

The application of the BOR to state and local governments

Answer 3

• Barron v. Mayor & City Council of Baltimore
• The Slaughter-House Cases
• Saenz v. Roe
• Duncan v. Louisiana
• McDonald v. City of Chicago
• Timbs v. Indiana

Question 4

Cont BOR

Answer 4

• Originally, the Bill of Rights only applied to the federal government.
• The adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments extended certain constitutional norms to state and local governments.
• However, the application of the Bill of Rights to state and local governments was still unclear.
• Gradually, the Supreme Court began applying individual provisions of the Bill of Rights to state and local governments through a process of selective incorporation.

Question 5

Methodology of Selective Incorporation

Answer 5

Step One: Does state or local government action implicate a provision in the Bill of Rights?
Example: freedom of speech; right to bear arms; right to jury trial
Step Two: Determine whether the applicable provision in the Bill of Rights references a fundamental right.
Is the particular right fundamental to our scheme of ordered liberty or is the right deeply rooted in our nation’s history and tradition?

Step Three: If so, apply the applicable provision of the Bill of Rights to the state or local government through the Due Process Clause of the Fourteenth Amendment.

Question 6

Development of Selective Incorporation

Answer 6

• Most provisions in the Bill of Rights have already been incorporated and apply to state and local governments.
• And so, there is no need to engage in incorporation analysis.
• Today, there are only three provisions in the Bill of Rights that have not been incorporated (and therefore do not yet apply to state and local governments).
  1. Third Amendment right to not have soldiers quartered in a person’s home.
  2. Fifth Amendment right to a grand jury indictment in criminal cases.
  3. Seventh Amendment right to jury trial in civil cases.

Question 7

Key Dates

Question 8

Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833)

Answer 8

• John Barron owned a shipyard in Baltimore. He brought a claim for damages against the city government, alleging that construction work had adversely affected the sandbanks near his shipyard. As a result, most ships could no longer access the shipyard.
• The state court ruled in favor of Barron, and this decision was reversed by the state appellate court.
• The U.S. Supreme Court held that the Fifth Amendment did not apply to regulate state behavior.
• According to Justice Marshall, “the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.”

Question 9

Key dates

Question 10

Fourteenth Amendment (1868)
Section 1.

Answer 10

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.]
[No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;]
[nor shall any state deprive any person of life, liberty, or property, without due process of law;]
[nor deny to any person within its jurisdiction the equal protection of the laws.]

Question 11

The Slaughter-House Cases, 83 U.S. 36
(1872)

Answer 11

• The Louisiana legislature and the city of New Orleans adopted legislation to regulate the slaughterhouse industry.
• Members of the Butchers’ Benevolent Association challenged the constitutionality of the law, claiming that it violated the Thirteenth and Fourteenth Amendments
  (including the Equal Protection, Due Process, and Privileges or Immunities Clauses).
• The Supreme Court offered a narrow interpretation of the Fourteenth Amendment and rejected each of the constitutional claims.

Question 12

Saenz v. Roe,
536 U.S. 489 (1999)

Answer 12

• The right to travel is an unenumerated right and is a fundamental right.
• The right to travel encompasses three components:
  1. The right to enter and leave another state;
  2. The right to be treated as a welcome visitor while temporarily present; and
  3. For those who want to become permanent residents, the right to be treated like other state citizens.
• The third component of the right to travel implicates the Privileges or Immunities Clause of the Fourteenth Amendment.

Question 13

Exam purposes

Question 14

What is the first step in exam

Answer 14

First, it will need to be determined whether the Bill of Rights (BOR) applies to the actors involved.
Here, we have a local actor–________ (town).

Question 15

What is the rule for the exam

Answer 15

Rule: Historically, the BOR only applied to the federal government. The Supreme Court has engaged in a process of selective incorporation wherein individual provisions of the BOR are applied to the state and local governments through the due process clause of the 14th amendment. Today, nearly all of the provisions have been incorporated with the exception of the 3rd , 5th , and 7th amendments. The provisions of the BOR that are implicated here have been incorporated, and, thus, are applied to the Town of ________ through the due process clause of the 14th amendment.

Question 16

What if it is a private actor?

Answer 16

(I like this) Can also put here [Generally, the Constitution protects against wrongful conduct by the government, not private parties. Thus, state action is required to trigger an individual’s constitutional protections. However, state action may exist in cases of private parties when: (1) a private person carries on activities that are traditionally performed exclusively by the state; or (2) there are sufficient mutual contacts between the conduct of a private party and the government.

Here, [Discuss whether the government or private party is infringing on the plaintiffs constitutional rights. Absent other exception, if the wrongdoer is a private party – the plaintiffs constitutional protections are not triggered.].

Therefore, State action [is/is not present], and _____[the individuals] constitutional rights are triggered.

Question 17

Supreme court has carved out three exceptions or methods in deciding whether a private actor is acting as a state actor, and thus must comply with the US Constitution

Answer 17

This is the State Action Doctrine. they are public function, entanglement (public support) and entwinement. They are not mutually exclusive

Question 18

Public function

Answer 18

asks whether the private actor is taking part in actions that are traditionally and exclusively performed by the government. The court have used both a balancing test and nexus test to decide.

We are looking for private actors who do things that a city or government would do. Will this apply. private town, parks.

Question 19

Entanglement (public support)

Answer 19

This asks whether the government affirmatively, authorizing, encouraging or facilitating private conduct. If yes, then they may rise to the level of a co-particpant. Generally simple government licensing, funding or acknowledgment is not enough to meet this threshold.

is the state providing significant funding?

Question 20

entwinement

Answer 20

this asks whether the state and the private actor have an interdependent relationship with one another or a symbiotic relationship with the private actor.

in other words entwinement will make it hard to discern where the private actor ends and the state actor begins. if the support was withdrawn would it crumble.
in Brentwood the public school was 84 percent of the private group

always look at funding and other benefits.