7. Con Law: Restrictions on Power Over Individuals

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rubidoux
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7. Con Law: Restrictions on Power Over Individuals
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2012-04-16 13:46:06
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  1. CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS
    Constitutional rights restrict the power of the gov't. The constitution sets a minimum level of protection for individuals.

    The bill of rights is the most important source of limitations on the federal gov't's power. It is not applicable to the states, although most of its safeguards have been held to be applicable to the states through the 14th amendment's due process clause.
  2. RIGHTS APPLICABLE TO THE STATES
    Those rights essential to liberty are applicable to the states through the 14th amendment. These include: all the 1st amendment guarantees; the 4th amendment; some elements of the 5th amendment (privilege against self-incrimination, compensation for taking of private property); the 6th amendment; and the 8th amendment.

    Rights not applicable to the states include the 2nd amendment; and the grand jury clause of the 5th amendment; the 7th amendment (jury in civil cases).
  3. 2nd AMENDMENT: THE RIGHT TO BEAR ARMS
    NOT APPLICABLE TO THE STATES
    Protects the individual's right to possess and use a firearm for a traditionally lawful purpose, such as self-defense within the home.

    The USSC has not specifically articulated a standard of scrutiny for determining the validity of gun control regulations.
  4. 13th AMENDMENT: SLAVERY
    Applicable to private action, as well as gov'tal.

    The USSC will uphold almost any legislation proscribing almost any private racially discriminatory act that can be characterized as a badge or incident of slavery.
  5. 14th AMENDMENT: DUE PROCESS AND EQUAL PROTECTION
    Prohibits states (not the fed gov't or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law.

    --> The 14th amendment applies only if there is action by a state or local gov't, gov't officer, or private individual whose behavior meets the requirements for state action.

    --> Includes an enabling clause giving congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment. To adopt a valid law, congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (ie, narrowly tailored) to solving the identified violation.

    When congress is dealing with a type of discrimination that the USSC reviews using heightened scrutiny, congress will generally have more power to act.
  6. 15th AMENDMENT
    A limitation on both the states and the federal gov't prohibiting them from denying any citizen the right to vote on account of race or color. Contains an enabling clause that allows congress to adopt legislation protecting the right to vote from discrimination.
  7. COMMERCE CLAUSE AND CIVIL RIGHTS
    The USSC has allowed congress to use the commerce clause to limit the power of individuals over other individuals -- by adopting legislation barring private racial discrimination in activities "connected with" interstate commerce.

    --> The provisions of the civil rights act of 1964 barring discrimination in places of public accommodation are proper and valid exercises of commerce power.

    --> Any business that is open to interstate travelers or that uses products shipped in interstate commerce is covered.
  8. STATE ACTION REQUIREMENT:
    GENERAL
    The constitution generally prohibits only gov't infringement of rights, so it is necessart to attribute the action to the state, which includes gov't agencies and officials acting under the color of state law.

    State action can be found in a seemingly private individual who (1) performs exclusive public functions, or (2) has significant state involvement with their activities.
  9. STATE ACTION REQUIREMENT:
    PRIVATE INDIVIDUALS PERFORMING EXCLUSIVE PUBLIC FUNCTIONS
    Certain activities are so traditionally the exclusive prerogative of the state that they constitute state action even when undertaken by a priviate individual or organization.

    Must be traditionally a state action and an exclusive public function.

    To date, only running a town and running an election for public office have been found to be such exclusive public functions.
  10. STATE ACTION REQUIREMENT:
    SIGNIFICANT STATE INVOLVEMENT -- FACILITATING PRIVATE ACTION
    State action occurs whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. There must be some sort of affirmative act by the state approving the private action. It is not enough that the state permits the conduct to occur.

    State court enforcement of restrictive covenants prohibiting sale or lease of property to blacks constitutes state action even in civil proceedings between private parties.

    The use of peremptory challenges, even by a private party, constitutes state action, both because jury selection is a traditional public function and because there is overt, significant participation by the gov't.
  11. STATE ACTION REQUIREMENT:
    SIGNIFICANT STATE INVOLVEMENT -- OFFICAL ACTS
    State action may be found in the absense of an unconstitutional statute or ordinance if it appears that the state sanctions constitutional violations by its own officers.

    Examples:

    -- discriminatory law enforcement: enforcing segregated lunch counters where there was no statutory segregation

    -- apparent legal authority: although sherrif was not authorized by the state to beat prisoner into confessing, he wa acting under the color of state law and cloaked with apparent legal authority.
  12. STATE ACTION REQUIREMENT:
    TIPS FOR EXAM QUESTIONS
    State must be significantly involved in the private entity. Merely granting a license or providing essential services is insufficient.

    States are not constitutionally required to outlaw discrimination. The constitution forbids only their encouraging or authorizing it.

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