Constitutional Law 5: The Structure of the Constitution's Protection of Individual Liberties

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

EXCEPTIONS:

1. Public Functions Exception

2. Entanglement Exception

When a private entity is performing a task traditionally and exclusively done by the government. The private entity must abide by the Constitution.

The Constitution applies if the government affirmatively AUTHORIZES, ENCOURAGES, or FACILITATES unconstitutional activity.

Yes, is Congress passes a statue that applies constitutional norms to private conduct.

1. Prohibition of private RACE DISCRIMINATION (pursuant to the Thirteenth Amendment): Congress has broad powers to adopt laws to enforce this provition.

2. Civil Rights Act of 1964 (Title 2) (pursuant to the COMMERCE CLAUSE).

No - only to regulate state and local governments.

1. Courts cannot enforce racially restrictive covenants.

2. There is state action when the government leases premises to a restaurant that racially discriminates.

3. There is state action when a state provides free books to private schools that racially discriminate.

4. There is NO state action when a private school that is over 99% funded by the government fires a teacher because of her speech.

5. There is NO state action when the NCAA orders the suspension of a basketball coach at a state university.

6. There is state action when a private entity regulates interscholastic sports within a state.

7. There is NO state action when a private club with a liquor license from the state racially discriminates.

It applies DIRECTLY only to the FEDERAL government.

It applies INDIRECTLY (through its incorporation into the DUE PROCESS CLAUSE of the 14th amendment) to the STATE & LOCAL governments.

1. Third Amendment right not to have a soldier quartered in a person's house.

2. Fifth Amendment right to grand jury indictiment in criminal cases.

3. Seventh Amendment right to a jury trial in civil cases.

4. Eighth Amendment right against excessive fines.

It is one level of scrutiny to determine the legitimacy of a law.

A law is upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose.

The 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.

A law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose.

The GOVERNMENT has the burden of proof.

a law is upheld if it is NECESSARY to achieve a COMPELLING goernment purpose.

The GOVERNMENT has the burden of proof.