The Structure of the Consitution's Individual Liberties

Question 1

Is There Government Action?

Answer 1

The Constitution applies only to government action. Private conduct need not comply with the Constitution

Congress, by statute, may apply constitutional norms to private conduct
* The Section 2 of Thirteenth Amendment can be used to prohibit private race discrimination
* The commerce power can be used to apply constitutional norms to private conduct
* Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior

Exceptions: situations where private conduct must comply with the Constitution
* The public function exception. The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.

The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Key examples:
* Courts cannot enforce racially restrictive covenants.
* There is state action when the government leases premises to a restaurant that racially discriminates.
* There is state action when a state provides books to schools that racially discriminate.
* There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
* There is no state action when the NCAA orders the suspension of a basketball coach at a state university.
* There is state action when a private entity regulates interscholastic sports within a state.
* There is not state action when a private club with a liquor license from the state racially discriminates.

Question 2

The Entanglement Exception (Governmental Action)

Answer 2

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

Key Examples of State Action:
* Courts cannot enforce racially restrictive covenants.
* Government leases premises to a restaurant that racially discriminates.
* State provides books to schools that racially discriminate.
* State action when a private entity regulates interscholastic sports within a state.

Key Example of NO State Action:
* When a private school that is over 99% funded by the government fires a teacher because of her speech. (government subsidy by itself is not enough for the consitution to apply)
* When the NCAA orders the suspension of a basketball coach at a state university.
* When a private club with a liquor license from the state racially discriminates.

Question 3

Application of the Bill of Rights

Answer 3

The Bill of Rights applies directly only to the federal government

The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except:
* The Third Amendment right to not have a soldier quartered in a person’s home.
* The Fifth Amendment right to grand jury indictment in criminal cases.
* The Seventh Amendment right to jury trial in civil cases.

Question 4

Levels of Scrutiny

Answer 4

Rational Basis Test:
* Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.
* Government usually wins
* Burden on challenger

Intermediate Scrutiny:
* Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.
* Burden on government

Strict Scrutiny:
* Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose.
* Government usually loses
* Burden on givernment
* Least restrictive alternative analysis