Constitutional Law - Protection Of Individual Liberties

Front 1

Applicable to
- Government Action vs. Private Conduct

Back 1

- Constitution applies only to government action at all levels.
- Private conduct need not comply with the Constitution.

Front 2

Congress, by statute, may apply constitutional norms to private conduct.
- How?

Back 2

1. 13th A. can prohibit use of private race discrimination - prohibit slavery & involuntary servitude & §2 of 14th A. can adopt laws to enforce it.
- Discrimination never violates 13th A. itself, but discrim. can violate fed laws adopted by the 13th A.
2. The commerce power can be used to apply constitutional norms to private conduct. (Title VII of the Civil Rights Act of 1964)
3. Congress cannot use §5 of the 14th A. to regulate private behavior.

Front 3

Exceptions (where private conduct must comply with Constitution):

Back 3

1. Public Function Exception: Constitution applies if a private entity is performing a task traditionally, exclusively done by the govt.
2. Entanglement Exception: If the government affirmatively authorizes, encourages, or facilitates unconstitutional activity, Constitution applies.

Front 4

Key examples (where private conduct must comply with Constitution):

Back 4

a. Courts cannot enforce racially restrictive covenant.
b. There is state action when govt leases premises to a restaurant that racially discriminates.
c. There is state action when a state provides books to schools that racially discriminate.
d. There is NO state action when a private school that is over 99% funded by govt fires a teacher because of her speech.
--> Gov’t subsidy is insufficient by itself for finding a state action.

Front 5

Other key examples
(where private conduct must comply with Constitution):

Back 5

e. There is NO state action when the NCAA orders the suspension of a basketball coach at a state university
f. There is state action when a private entity regulates interscholastic sports w/i a state.
g. There is NO state action when a private club w/ a liquor license from the state racially discriminates.

Front 6

Application of the Bill of Rights

Back 6

- Applies directly only to the federal govt
- ALL of the Bill of Rights apply to state and local govts through incorporation into the due process clause of the 14th A. but exceptions

Front 7

The following exceptions of Bill of Rights DO NOT apply to state/local govts through DPC of 14th A.:

Back 7

2nd A. right to bear arms
3rd A. right not to have a soldier quartered in a person’s home
5th A. right to grand jury indictment in criminal cases
7th A. right to jury trial in civil cases
8th A. right against excessive fines

Front 8

3 Levels of Scrutiny:

Back 8

1. Rational Basis
2. Intermediate Scrutiny
3. Strict Scrutiny

Front 9

Rational Basis Test

Back 9

Law is upheld if it’s rationally related to a legitimate govt interest (P has burden)

Front 10

Intermediate Scrutiny

Back 10

Law is upheld if it’s SUBSTANTIALLY RELATED to an IMPORATANT govt purpose (Govt has burden).
- Plus: Exceedingly Persuasive Justification

Front 11

Strict Scrutiny

Back 11

Law is upheld if it is NECESSARY to achieve a COMPELLING govt purpose (Govt has burden).
- Demonstrate that NO LESS RESTRICTIVE ALTERNATIVE could achieve the objective