Flashcards in Structures of Individual Liberties Deck (4)
Process for determining whether a government action has occurred:
1. Constitution applies only to government action; Private conduct is not covered;
2. Congress can apply constitutional norms to private conduct by passing laws:
a. 13th amendment - prohibit race discrimination;
b. commerce clause
c. Cannot use Section 5 of the 14th amendment to regulate private behavior.
When must private conduct comply with the Constitution?
1. Public Function Exception: If a private entity is performing a task traditionally, exclusively done by the government. (private town, voting)
2. Entanglement Exception: government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
a. Courts cannot enforce racially restrictive covenants;
b. Government leases premises to a restaurant that racially discriminates;
c. State provides books to schools that discriminate;
d. No state action: private school that is 99% funded by the government fires a teacher based on her speech;
e. No state action: NCAA orders suspension of BBall coach at state U;
f. private entity regulates interscholastic sports within a state;
g. No state action when a private club with a liquor license from the state racially discriminates.
What rights are and are not incorporated from the Bill of Rights?
1. 3rd Amendment to not have soldiers quartered in a person's home;
2. 5th Amend. right to grand jury in criminal cases;
3. 7th Amend. right to jury in civil cases;
8th Amend. right against excessive fines.