the structure of the Constitution's protection of Individual liberties Flashcards
What is the first thing you should always think of?
State Actor doctrine
what does the const applies to
only state actors.
what does const not apply to
private conduct does not need to comply with const.
when can congress apply const norms to private people
when it is by statute (ex: commerce clause)
X/C when private conduct MUST comply with const
1) public functions: if private entity is performing a task traditionally, exclusively done by government
2) entanglement: authorizes, encourages or facilities unconst activity
examples for entanglement
1) courts CANNOT enforce racially restrictive covenants
2) state action when govt leases premises to restaurant
3) there is state action when state provides free books to private schools that racially discriminate
4) NO state action when private school that is over 99% funded by govt fires teacher b/c of her speech
5) NO state action when NCAA orders the suspension of a coach at a state college
6) IS state action when private entity regulates interscholastic sports within a state
7) NO state action when private club with liquor license from state racially discriminates
- Usually if race entanglement but not always
what amendments have not been incorportated to state
1) 3rd amendment right to solider quartered soliders
2) 5th amendment: right to grand jury indictment in criminal cases
3) 7th amendment: right to jury trials in civil cases
4) 8th amendment: right against excessive fines
3 types of level of scrutiny
1) rational basis review
2) intermediate scrutiny
3) strict scrutiny
when do levels of scrutiny come into play?
when the SC addresses individual liberties under the const
Rational basis review std
a law is upheld if it is RATIONALLY RELATED TO ANY LEGITIMATE government purpose.
- does not need to be actual purpose
who is the burden on for rational basis review
on the challenger to show that there is no conceivable legitimate purpose or that the law is not rationally related to it
intermediate scrutiny
a law will be upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose
who is the burden on in intermediate scrutiny
on the government.
- Must be actual purpose of the government
- Has to be narrowly tailored but not less intrusive way
strict scrutiny
a law will be upheld if it is NECESSARY for a COMPELLING government purpose
Who is the burden on in strict scrutiny
on the government
- has to be actual purpose
- has to be no lessor discriminatory way
