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Flashcards in Applying the Bill of Rights Deck (14)
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1

What does 14th Amend. do?

“No state shall deprive any citizens of life, liberty, or property w/o due process of law”

-Applies BOR and Const. to states because a denial of this would be denial of due process. (has not applied all)

2

What is Selective Incorp. and the test?

Majority
Most of BOR incorporated

Test: Look at rights one by one and ask if right was so fundamental to the very concept of liberty that to deny it would be to deny due process.

3

What questions to ask in applying BOR?

- Does the 14th apply the BOR to the states?
- What about federalism. If we fully inc. is it too controlling over the states?
- What role does the judicial branch play in the incorporation?

4

What Amend. Not incorporate?

3rd→ right to not quarter soldier in your homes
5th→right to grand jury in crim case
7th→jury trial in civil case
8th→prohibition of excessive fines

5

What is State Action Doctrine and policy?

Applies BOR to private conduct.
-Const. only applies to government at all levels and all action of gov. actors. Does not apply to private entities or actors. 13th amend only amend which speaks to private conduct.
(see exceptions)

State Gov. can enact laws that require that private conduct meet same standard that const. requires of gov.

Policy: enhances federalism and preserves zone of state sovereignty. Structuring the legal relationships of private citizens is for the state, not fed. Gov.

6

What is U.S. v. Stanley?

Challenge to Civil Rights Act which says everyone will enjoy accommodations,advantages, facilities, and other public places. Provides a means of redress for those discriminated against
-4 def. denied blacks access to their facilities.

Act not legitimate under 14th Amend. because it applies to private actors and 14th only applies to state actors.

7

What are the exceptions to State Action Doctrine?

-State entanglement
-Owning slaves (13th)
-Public function

8

What is Public Function Excep. and policy?

Private entity must comply w/ the Constitution if it is performing a task that has been traditionally, exclusively done by the government.

Policy: Government shouldn’t be able to avoid the const. by delegating its tasks to private actors.

Usually applies to elections and private property used for public purposes.

9

What is Marsh v. Alabama?

Public Function Exception (broad)

-A privately owned town won’t let lady hand out flyers. Appears to be a normal town
- The more a private owner opens his property up to the public the more his rights are reduced.
- Where something acts, functions, or provides public services where constitutional principles would be valuable they are subject to SAD.

10

What is Jackson v. Metro?

Public Function Exception (narrow)

-Power co. privately owned and operated but hold cert. of public convenience. Shut down utilities w/ notice after nonpayment.
Jackson- violates due process
Court- utilities not public. gov. fuction/utilities gnerally private
-Just because a business is subject to state reg. doesn’t mean its action is state action.
*Inquiry: Whether there is a sufficiently close nexus between the state and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself?

11

State Action Cases usually rely on...?

-State sanctioned monopoly(if state allowed private actor to have monopoly stronger case)
-extensive pattern of cooperation between private entity and state
-Service that is uniquely public (libraries)

12

What is Entanglement Exception? What does it typically involve?

Private conduct must comply w/ the Const. if the government has authorized, encouraged, or facilitated the unconstitutional conduct.

Usually arises under: judicial and law enforcement actions, government licensing and reg., Gov. subsidies, and voter initiatives permitting discrimination.

13

What if state action is entangled w/ private unconst. action?

Either the government must cease its involvement w/ the private actor or the private entity must comply w/ the Const.

14

What happened in Kraemer?

Judicial/Law Enforcement Action.

Judicially sanctioned restrictive covenant restricted African Americans from buying houses in neighborhood.
- Courts cannot enforce racially restrictive cov.
-State judges are state actors. Judicial remedies are state actions
- Does not matter if its civil or common law action. Only matters in whatever form whether such power has been exercised.