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MBE - Constitutional Law > 5. Structure of Individual Liberties > Flashcards

Flashcards in 5. Structure of Individual Liberties Deck (25)
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1

Whose action does the Constitution apply to?

Government action

2

How can Congress apply constitutional norms to private conduct?

Via statute

3

Under which two constitutional provisions can congress adopt statutes to regulate private behaviour?

Under which one provision can they not?

Can

1. Thirteenth Amendment

2. Commerce Clause

Cannot

Section 5 of Fourteenth Amendment

4

Pursuant to the Thirteenth Amendment, what can Congress enact statutes to prevent?

Private race discrimination

5

Can private race discrimination violate the Thirteenth Amendment itself?

No, only slavery can

6

What are two situations where private conduct must comply with the Constitution, even absent Congress enacting a statute?

1. Public function

2. Entanglement

7

What is the public function exception?

Constitution applies if a private entity is performing a task traditionally and exclusively done by the government

8

What is the entanglement exception?

Constitution applies if the government affirmatively authorisesencourages, or facilitates unconstitutional activity

9

Where there is government entanglement, one of which two things must occur?

1. Government must stop the entanglement, or

2. Private conduct must comply with the Constitution

10

On an MBE question regarding entanglement, what four things will be considered state action?

1. Government leasing building to company

2. State providing books to school

3. Private entity regulating interscholastic sports

4. Court enforcing racially restrictive covenant 

11

On an MBE question regarding entanglement, what three things will not be considered state action?

1. Private school over 99% funded by government

2. NCAA suspends coach at state university

3. Private club with state liquor license

12

To whom does the Bill of Rights apply?

Federal government only

13

Generally, how is the Bill of Rights applies to state and local governments?

Via the due process clause of the Fourteenth Amendment

14

In what instances will the Bill of Rights apply directly to state and local government?

1. Fifth Amendment right to grand jury indictment in criminal cases

2. Seventh Amendment right to a jury trial in civil cases

3. Eighth Amendment right against excessive fines

15

What are the three levels of scrunity?

1. Rational basis

2. Intermediate scrutiny

3. Strict scrutiny

16

What is the rational basis test?

Law will be upheld if it is rationally related to a legitimate government purpose 

17

For rational basis, does the government's legitimate purpose have to be actual?

No, it must just be conceivable

18

For rational basis, on whom is the burden of proof?

The challenger

19

What is intermediate scrutiny?

Law will be upheld if it is substantially related to an important government purpose

20

For intermediate scrutiny, does the government's important purpose have to be actual?

Yes, it cannot be important if it is not actual

21

For intermediate scrutiny, on whom is the burden of proof?

The government

22

What is strict scrutiny?

Law will be upheld if it is necessary to achieve a compelling government purpose

23

For strict scrutiny, does the government's compelling purpose have to be actual?

Yes, it cannot be compelling if it is not actual

24

For strict scrutiny, on whom is the burden of proof?

The government

25

For strict scrutiny, how does the government show that the law is necessary?

Government must show that there is no less restrictive alternative to achieve the compelling purpose