Structure of the Constitution's Protection of INdividual Liberties

Question 1

Is there government Action?

Answer 1

• Constitution applies only to government (or state) action.
• Private conudct does not need to comply with the Constitution.
• Congress may apply constitutional norms to private conduct through statute

Question 2

Instances where Congress has applied constititutional norms to private conduct

Answer 2

1. 13th Amendment: Congress can prohibit private race discrimination and is granted broad powers to enforce it. Amendment consideres only slavery but granted Congress power to broadly construe its enforcement
2. Commerce Clause: apply constitutiona norms to private conudct such as Civil Rights Act of 1964 (Olly’s bbq)

CANNOT USE Sec. 5 of 14th Amendment to regulate private behavior. Can only regulate state and local governments.

Question 3

Exceptions where private conduct is regulated by the Constitution

Answer 3

1. Public Function Exception
2. Entaglement

Question 4

Public Function Exception

Answer 4

Private entity is performing a task traditionally, exclusively done by the government

Question 5

Entaglement Exception

Answer 5

Constitution applies if the government affirmatively authorizes, encourages or facilitates an unconstitutional activity

EXAMPLES OF STATE ACTION:

• court enforcing racially restrictive covenants
• when government leases space to an entitty that racially discriminates
• free books to private schools that discriminate
• private entity regulates interscholastic sports within a state

EXAMPLES OF NO STATE ACTION:

• private schools w/ over 99% funding by government fires teacher over their speech
• NCAA orders the supsension of a basketball coach at state university
• private club with a liquor license from the state racially discriminates

Question 6

Incorporation of Bill of Rights

Answer 6

Generally, bill of rights applies only to federal government

• Bill of rights applies to state and local government through its incorporation in the due process clause of the 14th Amendment

Question 7

Amendments that Except to Incorporation

Answer 7

• 3rd Amenmdent: Quartering Soldiers
• Fifth Amendment right to Grand jury indictment in federal cases
• Seventh Amendment right to trial by jury in civil cases
• Eigth Amendment right against excessive fines (other partys read into it)

Question 8

Levals of Scrutiny

Answer 8

1. Rational Basis
2. Intermediate Scrutiny
3. STrict Scrutiny

Question 9

Rational Basis

Answer 9

Upheld if:

• it is rationally related
• to a legitimate government purpose

Burden of challenger to establish that there is no conceivable legit purpose or the law is not rationally related to it

Question 10

Intermediate Scrutiny

Answer 10

a law is upheld if:

• it is substantially related
• to an important government purpose

Government has burden of proof to show actual purpose and that it is narrowly tailored to achieve objective.

Question 11

Strict Scrutiny

Answer 11

Law will be upheld if:

• necessary to achieve
• a compelling government purpose.

Government has the burden of proof