Structure of Con's Protection of Civil Rights & Liberties Flashcards
Con Amendment Process
○ Proposalàapproval by 2/3 members of both chambers of congress or by 2/3 statesàratification by ¾ of statesàamendment becomes part of the constitution
§ The ratification by the people allows the ratification to be a source of supreme law
Doctrine of Incorporation RULE
A provision of the Bill of Rights is applicable to the states through the operation of the…
14th Amendment’s Due Process Clause
§ Rights that are protected under the Due Process Clause:
RULE
1) Those that are “fundamental to our scheme of ordered liberty”;
2) AND “deeply rooted in this Nation’s history and tradition”.
For Selective Incorporation–you apply….
Strict Scrutiny TEST
Necessary & Compelling
Reverse Incorporation RULE
is the 14th Amendment applies to the federal government through the 5th Amendment’s Due process.
State Action Doctrine
what is it generally?
○ The Con limits only governmental action (as oppose to private action) conforming with the EP Clause of 14th Amendment
State Action Doctrine RULE
Where there is such a close nexus between the State and the challenged action, private behavior may be fairly treated as that of the State itself
○ To bring an EP claim, P must show state action in which… state authorizes, encourages, and/or enforces private action, the Court will find state action if it believes that the weight and authority of the state are supporting the private action.
Public Function Exception
The private organization is performing a traditional and exclusive state function
Look to see if there is a sufficiently close nexus between State & challenged action so that the action of the private actor may be fairly treated as that of the State itself
PF Exception examples
Operation of a company town OR parks
But not shopping centers
Entanglement Exception
The level of entanglement has risen to a threshold level or the level of a symbiotic relationship
Entanglement examples
} Gov licensing or regulation alone is insufficient for finding of state action – Unless, there is other gov action encouraging or facilitating of the unconstitutional conduct
} Funding alone is not sufficient (unless the funding is tied directly to the discrim action in a way that shows the state is involved in the decision-making process or is otherwise aiding/ encouraging the discrim action)
■ Voter Initiatives Permitting Discrimination:
} Anytime a state puts additional obstacles that is going to be a state action, they are making it easier to have discrimination
Entwinement Exception
There is not only passive regulation but active authorization, encouragement or enforcement, almost to the point of requiring commandment
