The Structure of the Constitution’s Protection of Individual Liberties

Question 1

Types of Conduct/Action within the Constitution Congress’ Scope to legislate:

Answer 1

• The Constitution applies only to government action. Private conduct need not comply with the Constitution
• Congress, by statute, may apply constitutional norms to private conduct
  
  • i.e. race-discrimination - Congress holding private individuals to same standard as the government

Question 2

Ways in which Congress can Apply Constitutional Norms to Private Conduct

Answer 2

1. The Thirteenth Amendment can be used to prohibit private race discrimination
2. The commerce power can be used to apply constitutional norms to private conduct

Question 3

The Thirteenth Amendment

Answer 3

a) People cannot be or own slaves
b) Congress has broad power to limit race discrimination

Tip: Discrimination never violates the 13th Amendment, only Slavery violates the 13th amendment - but discrimination can violate a federal law adopted by Congress under the 13th Amendment.

Question 4

Limitation to Congress’s Ability to Apply Constitutional Norms to Private Activity

Answer 4

Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior

Can only regulate State/local governments under this; not private

Question 5

Exceptions: situations where private conduct must comply with the Constitution

Answer 5

1. The public function exception.
2. The entanglement exception.

Question 6

The Public Function Exception -where private conduct must comply with the constitution

Answer 6

The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government.

• Running a utility does not fall under this

Question 7

The entanglement exception -where private conduct must comply with the constitution

Answer 7

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

• Either the government must stop what it is doing or the private conduct must comply w/ Cosntitution

Question 8

Key Examples of he entanglement exception - where private conduct must comply with the constitution:

Answer 8

1. Courts cannot enforce racially restrictive covenants.
2. There is state action when the government leases premises to a restaurant that racially discriminates.
3. There is state action when a state provides books to schools that racially discriminate.
4. There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
   
   • govt subsidy is insufficient to be a state action
5. There is no state action when the NCAA orders the suspension of a basketball coach at a state university.
   
   • NCAA is private entity
6. There is state action when a private entity regulates interscholastic sports within a state.
   
   • In comparison to NCAA, NCAA regulates to all states, whereas this is within a state
7. There is not state action when a private club with a liquor license from the state racially discriminates.

Question 9

The application of the Bill of Rights

Answer 9

1. The Bill of Rights applies directly only to the federal government
2. The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.

Question 10

Provisions of the Bill of Rights that do not Apply to State/Local Governments:

Answer 10

1. The Third Amendment right to not have a soldier quartered in a person’s home.
2. The Fifth Amendment right to grand jury indictment in criminal cases.
   
   • States don’t have to use a grand jury
3. The Seventh Amendment right to jury trial in civil cases.
4. The Eighth Amendment right against excessive fines
   
   • The other parts of the 8th amendment apply though

Question 11

Levels of scrutiny

Answer 11

1. Rational basis test
2. Intermediate scrutiny
3. Strict scrutiny

Question 12

Rational Basis Test

Answer 12

1. Rationally related to a
2. legitimate government purpose
   
   • (conceivable legitimate purpose is enough, not the actual purpose)

challenger has BoP

Question 13

Intermediate Scrutiny

Answer 13

1. Substantially related to an
2. important government purpose
   
   • (more than just a permissible goal - court will only look at the government’s actual objective)
   • (means must narrowly tailored, not necessary, be pretty good to achieve the objective)

Government has the BoP

Question 14

Strict Scrutiny

Answer 14

1. Necessary to achieve a
2. compelling government purpose
   
   • Must be vital goals
   • Court will only look at the actual objective
   • Means must be necessary:
     
     • Government must demonstrate there is no less-restrictive alternative to achieve objective
   • Means must also be narrowly tailored

Government has BoP