(6) The Structure of the Constitution's Protections of Individual Liberties
What is the entanglement exception?
(1) If the government affirmatively authorizes, encourages, or facilitates unconstitutional activity; THEN (2) the private acts must in accordance with the constitution OR the government must stop what it's doing.
What are the 5 primary constitutional sources of individual rights?
(1) The bill of rights (2) the 13th amendment (3) the 14th amendment (4) the 15th amendment (5) the commerce clause (Art. 1 §8)
Valid legislation made pursuant to §5 the 14th amendment must do what two things?
(1) point to a history or pattern of state violation of such rights and; (2) be congruent and proportional (i.e., narrowly tailored) to solving the identified violation
A state grants a liquor license to a private club that racially discriminates. Is there state action here?
No - when the state is generally regulating or licensing there is not significant enough state involvement.
Which 3 provisions in the bill of rights are NOT applied to the states via the 14th amendment? I.e, exceptions to incorporation.
(1) the 3rd amendment right not to quarter soldiers (2) the 5th amendment's prohibition of criminal trials without a grand jury indictment; and (3) the 7th amendment's right to a jury in civil cases
What are the 3 levels of scrutiny that can be applied to a constitutional challenege?
(1) the rational basis test (2) intermediate scrutiny (3) Strict scrutiny
If the court rules correctly, will it find the employee's termination to be constitutional? A) Yes, because no hearing was required since the supervisor witnessed the employee's misconduct. B) Yes, because the employer is free to fire employees at will. C) No, because it violates the employee's right to procedural due process. D) No, because of the state's regulation of the hiring process.
(B) The employer was free under the Constitution to fire the employee without a hearing because she was an employee at will. Unless prohibited by a state statute, a private employer usually can fire an employee for any reason or no reason at all, absent a contract providing otherwise.
Can congress use §5 of the 14th amendment to regulate private behavior?
No, Congress only may use this power to regulate state and local government.
What is an ex post facto law?
A law that retroactively alters CRIMINAL offense or punishments in a substantially prejudicial manner for purposes of punishing a person for some past activity. Neither state nor the federal government can pass such laws!
What are bills of attainder?
Acts that inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited form passing bills of attainder.
Why should you ask this?
B/c the constitution generally applies only to governmental action, to show a constitutional violation, "state action must be involved." This is the state action requirement.
Why is A incorrect?
B/c whether a hearing is required does not turn on whether the supervisor witnessed the misconduct—if state action were involved, a hearing would have been required because a public employee who is subject to removal only for "cause" has a property interest in her job that cannot be taken without fair process. Since there was no state action, no hearing was necessary.
How has SCOTUS defined slavery?
Compulsion of labor through the use or threat of physical or legal coercion
Who holds powers over the rights of national citizenship?
Congress has inherent power to protect the rights of citizenship (e.g., rights to interstate travel, assmebly, and petition congress for redress)
A private school is over 99% funded by the government fires a teacher because of her speech, state action?
No, government subsidy BY ITSELF is not enough for state action
What does the 14th amendment do?
It prevents STATES from depriving any person of life, liberty, or property without DUE PROCESS and EQUAL PROTECTION of the law
What does the 15th amendment do?
It prevents both the FEDERAL and STATE governments from denying a citizen the right to to vote on account of race or color
What does the 13th amendment do?
It prohibits slavery and involuntary servitude
Is private conduct prohibited by the 14th and 15th amendments?
No, UNLESS some state action is involved BUT NOTE: purely private conduct may be prohibited on some separate constitutional basis, such as the commerce clause)
What about a suit against a company running a shopping mall?
No - the company is not performing a public funtion
The NCAA, a voluntary association of public and private universities that regulates collegiate sports, ordered the firing of a state college coach. Is there state action here?
No - the mere fact that an organization has some members that are state actors does not convert the organization to a state actor. The public members are not a maj. and the NCAA does not primarily serve them.
Does acquiescence by the state in private conduct enough to show "entanglement?"
No - the state must be "significantly involved"
What does §5 of the 14th amendment do?
It gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment. Under §5 congress may NOT expand existing constitutional rights or create new ones - it may only enact laws to prevent or remedy violations of rights already recognized by the courts.
What is the bill or rights?
It is the first 10 amendments to the constitution.
Does the K clause apply to the federal government?
No - there is no comparable clause applicable to the federal government, but flagrant K impairment would violate the 5th amendment due process clause
Are states constitutionally required to outlaw discrimination?
No - they are only forbidden to facilitate, encourage, or authorize it
What does the bill of rights limit?
Federal power. BUT the 14th amendment's due process clause applies almost all of the bill of rights to the states
How about granting a corporation its charter and exclusive name?
No - this is no significant state involvement = no state action
Other than the Thirteenth Amendment ban on slavery, the Constitution regulates only what?
Government action, not private action.
When does a statute retroactively alter a law in a substantially prejudicial manner?
If it (1) makes criminal an act that was innocent when done; (2) prescribes greater punishment for an act than as prescribed for the act when it was done; or (3) reduces the evidence required to convict a person of a crime from what was required when the act was noticed
What private rights does the CC create?
In the broadly construed CC, congress may prohibit PRIVATE racial discrimination in activities that might have a substantial effect on interstate commerce. NOTE: b/c almost any activity taken cumulatively might have a substantial effect on interstate commerce, the CC is an important basis for civil rights laws
Under what standard of review is state legislation that substantially impairs an existing private K?
Intermediate scrutiny: (1) must serve an important and legitimate public interest; and (2) is reasonably and narrowly tailored means to promote that interest
What is the first question you should ask yourself when there is a con law q regarding individual liberties?
Is there state action?
What does the 13th amendment's enabling clause do?
It allows Congress to prohibit racially discriminatory actions by ANYONE (this means governments AND private actors)
What does the K clause not effect?
Ks that have not yet been made
The constitution sets a ______ for individual rights. Therefore states are generally free to do what?
Minimum threshold. Therefore states are generally free to grant broader rights than those granted by the constitution.
Why are C & D incorrect?
Most constitutional guarantees prohibit state action and do not impose duties on private parties. That is not to say that state action can never be found in the acts of a private party—it will be found if the private party performs exclusive public functions or has significant state involvement in its activities. However, there is no state action here. Running a lottery is not an exclusively public function, and merely being the exclusive lottery supplier for a state does not constitute significant state involvement, even where the state controls who may be hired. State action will not be found merely because the state has granted a monopoly to a business or heavily regulates it.
An employee of the company who had a poor work record and called in sick often was spotted by her supervisor dancing at a bar one evening after she had called in sick during the day. The supervisor immediately told the employee that she should consider herself terminated, although the employee tried to explain that she in fact had been sick that morning but began feeling well by mid-afternoon. A state law provided that employees of the state could not be fired from their positions except for cause. The woman sued in federal court, claiming that she was constitutionally entitled to a hearing to determine whether her supervisor had cause to fire her.
Next card
A private club with a liquor license from the state racially discriminates, state action?
No
Can courts enforce racially restrictive covenants?
No
Heavily regulating an industry?
No
How about granting a monopoly to a utlity?
No
NCAA orders the suspension of a basketball coach at a state university, state action?
No
A company runs a shopping mall. Is there state action here?
No - running a shopping mall is not a traditional or exclusive state function.
How about granting a license and providing essential services to a private club?
No - still no significant state action
A state engaged a private company to run its lottery, but the state maintained close regulation of the manufacture and distribution of lottery equipment by the private company in order to prevent frauds. One lottery regulation required the company to submit to the state all applications of persons being considered for employment. The state ran background checks on the prospective employees to ensure that they did not ave a criminal record. A prospective employee that did not pass the state background check could not be hired by the company.
Question continues on next card
What is the public function exception?
The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
Under which of these tests will the court undertake a least restrictive alternatives analysis?
Strict scrutiny.
What is the contract clause?
The K clause limits the ability of STATES to enact laws that retroactively impair K rights.
Who has the BoP under the rational basis test?
The challenger
What prohibits COURTS from retroactively interpreting criminal laws in unexpected and/or indefensible ways?
The due process clauses of the 5th and 14th amendments.
Under strict scrutiny, who bears the BoP?
The government
Who bears the BoP under intermediate scrutiny?
The government
Under what standard of review is state legislation that substantially impairs a K to which that state is a party?
The same basic test BUT with slightly stricter scrutiny, especially if the legislation reduces the K burdens on the state
Who can be a state actor? (3 possibilities)
The state action requirement applies to (1) government; (2) government officers at all levels (local, state, or federal); (3) seemingly private individuals who either perform actions that fall under the "public function" or "entanglement" excetpions.
What is the problem with questions on the entanglement exception?
There is no consistent case law on it so you just have to memorize the leading examples. However, as a general rule of thumb, if the case involves racism the court seems willing to apply the exception and if it doesn't it seems unwilling, but this is NOT always the case.
What is intermediate scrutiny?
Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.
What is strict scrutiny?
Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose.
What is the rational basis test?
Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.
Allowing a state official to act in a discriminatory manner under "color of state law"?
Yep
Leasing premise to a discriminatory lessee where the state derives extra benefit from the discrimination?
Yep - where a symbiotic relationship exists = signifianct state involvement = SAR
A private entity regulates interscholastic sports within a state, state action?
Yes
State provides books to schools that racially discriminate, state action?
Yes
The government leases premises to a restaurant that racially discriminates, state action?
Yes
An officer targets minorities contrary to department policy. Is there state action here?
Yes - a government official acting in their official capacity is a state actor regardless of whether they are following state policy/law.
A company runs a "company town" (that is, a community in which an employer provides a place for employees to live which includes most of the features a city or town would have, such as police and fire protection, schools, parks, and so on). Is there state action when the company prohibits minorities from using the town park?
Yes - a park is something traditionally provided and traditionally run by the federal government.
A state court enforces a racially restrictive covenant. Is there state action here?
Yes - even though these were private real estate contracts, they contained provisions that were discriminatory and its the states judiciary that gives the discriminatory provision power.
A state privatizes prisons. Is there state action in a private company running the prisons?
Yes - prisons are traditionally and exclusively state functions so state's can't circumvent the 8th amendment by outsourcing them.
Would a suit against a private company that runs the town meet the SAR?
Yes - the company is performing a public function
Would a suit against a private discriminatory trust that is administered by public official meet the SAR?
Yes - there is significant state involvement = entanglement exception
A state leases a premises to a restaurant that racially discriminates. Is there state action here?
Yes - there is significant state involvement b/c as a landlord the state has oversight and say in what happens on its property.
A voluntary association of mostly public and some private high schools, and run mainly by public school officials during school hours, regulates sports within a state. Is there state action here?
Yes - there was substantially more involvement of and benefit to the the public members. There was "pervasive entwinement."
How about enforcing restricting covenants prohibiting sale or lease or property through state courts?
yes - enforcement = significant state involvement = SAR
