Whose action does the Constitution apply to?
How can Congress apply constitutional norms to private conduct?
Under which two constitutional provisions can congress adopt statutes to regulate private behaviour?
Under which one provision can they not?
1. Thirteenth Amendment
2. Commerce Clause
Section 5 of Fourteenth Amendment
Pursuant to the Thirteenth Amendment, what can Congress enact statutes to prevent?
Private race discrimination
Can private race discrimination violate the Thirteenth Amendment itself?
No, only slavery can
What are two situations where private conduct must comply with the Constitution, even absent Congress enacting a statute?
1. Public function
What is the public function exception?
Constitution applies if a private entity is performing a task traditionally and exclusively done by the government
What is the entanglement exception?
Constitution applies if the government affirmatively authorises, encourages, or facilitates unconstitutional activity
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
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
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
To whom does the Bill of Rights apply?
Federal government only
Generally, how is the Bill of Rights applies to state and local governments?
Via the due process clause of the Fourteenth Amendment
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
What are the three levels of scrunity?
1. Rational basis
2. Intermediate scrutiny
3. Strict scrutiny
What is the rational basis test?
Law will be upheld if it is rationally related to a legitimate government purpose
For rational basis, does the government's legitimate purpose have to be actual?
No, it must just be conceivable
For rational basis, on whom is the burden of proof?
What is intermediate scrutiny?
Law will be upheld if it is substantially related to an important government purpose
For intermediate scrutiny, does the government's important purpose have to be actual?
Yes, it cannot be important if it is not actual
For intermediate scrutiny, on whom is the burden of proof?
What is strict scrutiny?
Law will be upheld if it is necessary to achieve a compelling government purpose
For strict scrutiny, does the government's compelling purpose have to be actual?
Yes, it cannot be compelling if it is not actual
For strict scrutiny, on whom is the burden of proof?
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