ConLaw 5

  1. Individual liberties are protected from what types of action?
    • State action:
    • Constitutional protections apply only against the government |
    • Private action:
    • The Constitution itself does not protect individual liberties from private action, although Congress may by statute apply constitutional norms to private conduct (e.g., the Civil Rights Act of 1964)
  2. In what situations must Private Conduct comply with the Constitution?
    • Public Functions:
    • When the private entity is performing a task traditionally and exclusively done by the government (e.g., running of a private town) |
    • Entanglement:
    • The Constitution also applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity (see next card for key examples)
  3. Examples of Government Entanglement
    • In the following examples, a private party must comply with Constitutional protections of individual liberties because state action is (or is not) deemed to apply. |
    • State Action 1: Court enforcement of racially restrictive covenants
    • State Action 2: Government leases premises to a restaurant that racially discriminates
    • State Action 3: State provides books to private schools that racially discriminate
    • State Action 4: Private entity regulates interscholastic sports within a state|
    • But, there is NO state action in the following examples—|
    • No state action 1: Private school that is over 99% funded by the government fires a teacher because of her speech
    • No state action 2: NCAA orders suspension of a basketball coach at a state university
    • No state action 3: Private club with a liquor license from the state racially discriminates
  4. Against whom does the Bill of Rights apply?
    • Federal Government: The Bill of Rights applies directly only against the federal government.
    • State/Local Governments: However, portions of it are applied to state and local governments through the due process clause of the Fourteenth Amendment (subject to exceptions)
  5. Some Amendments in the Bill of Rights are not applied against the states through the Fourteenth Amendment due process clause. Which ones are they?
    • • Second Amendment right to bear arms (but, individuals do have a right to self-defense)
    • • Third Amendment right to not have a soldier quartered in a person's home
    • • Fifth Amendment right to grand jury indictment in criminal cases
    • • Seventh Amendment right to jury trials in civil cases in state court
    • • Eighth Amendment right against excessive fines
  6. Rational Basis review
    • Test:
    • A law will be upheld if it is "rationally related to a legitimate government purpose." |
    • Burden of Proof:
    • A challenger has the burden of proof to show either that there is no conceivable legitimate purpose or that the law is not rationally related to it.|
    • Note: Challenger usually fails
  7. Intermediate Scrutiny
    • Test:
    • Law will be upheld if it is "substantially related to an important government purpose."|
    • Burden of Proof:
    • Government has burden to prove substantial relation and important govt purpose.
  8. Strict Scrutiny
    • Test:
    • Law will be struck down as unconstitutional unless it is "necessary to achieve a compelling government purpose." |
    • Burden of proof:
    • on the Government
Card Set
ConLaw 5
ConLaw 5 - The Structure of the Constitution's Protections of Individual Liberties