Bill of Rights (Minus the First)(Minus Family Law) Flashcards
(40 cards)
Barron v. Baltimore (1833)
Pre-Civil War SCOTUS denial to extend the Constitution to govern state action.
14th Am. Sec. 1
Birthright Citizenship
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.
Slaughter-House Cases (1872)
->Privileges and Immunities clause was not intended to incorporate all provisions of the bill of rights against the states.
->To so hold would “fetter and degrade state governments by subjecting them to the control of congress, in exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character.”
->Privileges and immunities clause protects rights associated with U.S. citizenship, as opposed to state citizenship, such as: right to travel between states, access seaports, petition federal government.
Saenz v. Roe (1999) [Stevens]
–>Law limiting welfare benefits that new residents could receive violated the privileges or immunities clause of the Fourteenth Amendment.
Reasoning (Stevens):
-3 components of the right to travel: Right to enter and to leave the states; right to be treated equally while in a state (Privileges and Immunities of Art. IV, Sec. 2); and right of new citizens of a state to be treated the same as other citizens of the state.
-Strict scrutiny applies: “Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the state for less than a year.”
–>Relevance: Example of the rights protected under the privileges and immunities clause of the Fourteenth Amendment after Slaughter-House.
How Rights are Incorporated Through the Due Process Clause
Relevance: Establish that rights are incorporated under the Due Process Clause if they are fundamental to our scheme of ordered liberty, or deeply rooted in Nation’s tradition and history, and that rights have the same meaning when applied to states.
McDonald v. Chicago (2010)
Provisions of the bill of rights are incorporated via due process clause if they are fundamental to our scheme of ordered liberty, or deeply rooted in Nation’s tradition and history.
Timbs v. Indiana (2019)
Extends the 8th Am. excessive bail prohibition to the states
Ramos v. Louisiana (2022)
The Sixth Amendment right to “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.
Incorporates the 6th Am. to the States
Incorporation doctrine
The privileges and immunities clause of the Fourteenth A. does not incorporate the provisions of the bill of rights. Slaughter-House Cases (1872)
Provisions of the bill of rights are incorporated through the due process clause if they are fundamental to our scheme of ordered liberty, or deeply rooted in Nation’s tradition and history. (E.g., McDonald v. Chicago (2010); Timbs v. Indiana (2019))
All rights now incorporated through due process clause, except: 3rd, 5th, & 7th
For most rights, the scope of right protected by the Fourteenth Amendment is the same as the scope of the substantive federal right (Ramos v. Louisiana (2020))
The Civil Rights Act of 1875
Sec. 1: [everyone] shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement
Civil Rights Cases: U.S. v. Stanley (1883) [Bradley]
Holding: Congress does not have power under the Thirteenth or Fourteenth amendment to enact provisions of the Civil Rights Act of 1875 prohibiting discrimination in public accommodations.
Relevance: Establishes the “state action” doctrine: That the Fourteenth Amendment applies only to government action, not private individuals.
When private conduct may be state action
- Public functions: If a private entity is performing a task traditionally, exclusively done by government, it may be considered a state actor.
- Entanglement: if government authorizes, facilitates, encourages private conduct, the conduct may be considered state action.
- Entwinement?: “pervasive entwinement of public institutions and public officials in [a private organization’s] composition and workings”
Public Function Exception: State Action Found
A company-owned town prohibiting speech on public sidewalk (Marsh v. Alabama (1946))
Private association operating an all-White primary (Terry v. Adams (1953))
A tract of land, granted by a trust to the City for use as a public park open to White people only, where state was involved in maintaining and operating the park. (Evans v. Newton (1966))
Public Function Exception: No State Action Found
A private utility company with a public convenience to service an area is not a state actor, as this was not traditionally, exclusively a state function or municipal duty. (Jackson v. Metropolitan Edison Co. (1974))
Operating a private enclosed shopping mall that is a public gathering space. (Hudgens v. NLRB (1976))
Public Function Exception: Relevance
Relevance/rule: Establish that a private entity may qualify as a state actor when it exercises powers traditionally, exclusively reserved to the state.
And for the public function exception to apply, it is not enough that the government exercised the function in the past, or that the function serves the public interest in some way.
Manhattan Community Access Corp. v. Halleck (2019) [Kavanaugh]
Relevance: Illustrates how the public function exception applies, and that it is not enough that the government delegated its responsibility to a private actor.
A private entity can qualify as a state actor in a few limited circumstances including: (1) performing traditional, exclusive public function; (2) when gov’t compels the private entity to take a particular action; (3) when the gov’t acts jointly w/private entity.
Entanglement Exception: State Action Found
Courts enforcing racially discriminatory real estate covenants (Shelley v. Kraemer (1948))
State law procedural scheme for attaching a debtor’s property, whereby upon private party’s application, sheriff executed writ sequestering the disputed property (Lugar v. Edmonson Oil (1982))
Race based peremptory challenges in a civil trial (Edmonson v. Leesville Concrete Co. (1991))
Gov’t agency leasing a portion of a public building to a business that discriminated based on race (Burton v. Wilmington (1961))
Entanglement Exception: No State Action
Granting liquor license to a private club that discriminated based on race. (Moose Lodge v. Iris (1972)).
Entanglement Exception: Relevance
Relevance/rule: Establish that if the government affirmatively authorizes, encourages, and facilitates private conduct that violates the Constitution, that conduct may be considered state action.
The fact that a private entity receives some kind of benefit from the state, or is regulated by the state, is not enough to make it a state actor.
Entwinement: Brentwood Academy v. TN Secondary School Athletic Ass’n (2001) [Souter]
Relevance: Establishes that “entwinement” between government actors and private association, or government officials’ pervasive involvement in a private association, may render that association a state actor.
There is “pervasive entwinement of public institutions and public officials in [the Association’s] composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.”
Public Function Exception: Summary
Public function: If a private entity is performing a task traditionally, exclusively done by government, it may be considered a state actor.
Examples: Company-owned town (Marsh v. Alabama); White primary (Terry v. Adams); Operating a segregated park (Evans v. Newton)
But not: private utility company with a monopoly from state to provide power (Jackson v. Metro. Edison Co.); privately owned shopping mall Hudgens v. NLRB (1976); private corporation operating public access channels (Manhattan Community Access Corp. v. Halleck)
Entanglement Exception Summary
Entanglement: if government authorizes, facilitates, encourages private conduct, the conduct may be considered state action.
Examples: Courts enforcing racially-discriminatory restrictive covenants (Shelley v. Kraemer); private entity working with state actors to attach a debtor’s property (Lugar v. Edmonson Oil); racial discrimination in civil jury selection (Edmonson v. Leesville Concrete); coffee shop leasing property from a government building (Burton v. Wilmington)
But not: Liquor license for a private club that discriminates based on race (Moose Lodge v. Iris)
Entwinement Exception Summary
Entwinement: “pervasive entwinement of public institutions and public officials in [a private organization’s] composition and workings”
Example: State athletic organization comprised almost entirely of public-school officials (Brentwood v. TN Secondary School Athletic Ass’n)
But not: Nationwide athletic association comprised of many members from many different states (Id.)
Lochner v. New York (1905) [Peckham]
Relevance: Anti-cannon (see Jamal Greene, The Anticannon), overruled by West Coast Hotel v. Parrish and Carolene Products v. U.S., but often cited as an example of the problems of recognizing unenumerated substantive due process rights.
General right to make a contract in relation to one’s business, and to purchase and sell labor, is part of the liberty of the individual protected by the 14th Amendment, and this includes the right to purchase or sell labor.
State can interfere with freedom of contract only if it is a valid exercise of police power—to regulate safety, health, morals, general welfare.
