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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)
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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)
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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
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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 14th Amendment (subject to exceptions)
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Some Amendments in the Bill of Rights are not applied against the states through the 14th Amendment due process clause. Which ones are they?
- • 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 BUT other parts of the Amdmt have been deemed incorporated (cruel and unusual punishment and excessive bail).
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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
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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.
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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
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