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

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TheoneandonlyMJ
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93964
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Constitutional Law 5: The Structure of the Constitution's Protection of Individual Liberties
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2011-07-13 20:22:07
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MBE Constitutional Law Part 5 Structure of the Constitution's Protection of Individual Liberties
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  1. To whom does the Constitution apply?
    The Constitutional applies only to government action. Private conduct need not comply with the Constitution.

    EXCEPTIONS:

    1. Public Functions Exception

    2. Entanglement Exception
  2. What is the PUBLIC FUNCTIONS EXCEPTION?
    When a private entity is performing a task traditionally and exclusively done by the government. The private entity must abide by the Constitution.
  3. What is the ENTANGLEMENT EXCEPTION?
    The Constitution applies if the government affirmatively AUTHORIZES, ENCOURAGES, or FACILITATES unconstitutional activity.
  4. Can the principles contained in the Constitution EVER apply to private individuals?
    Yes, is Congress passes a statue that applies constitutional norms to private conduct.
  5. What are TWO examples in which Congress has applied 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).
  6. Can Congress use Section 5 of the Fourteenth Amendment to regulate private conduct?
    No - only to regulate state and local governments.
  7. What are key exmaples of the ENTANGLEMENT EXCEPTION?
    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.
  8. To whom does the Bill of Rights apply to?
    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.
  9. What parts of the BILL OF RIGHTS does NOT apply to STATES?
    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.
  10. What is the RATIONAL BASIS TEST?
    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.
  11. What is INTERMEDIATE SCRUTINY?
    A law is upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT government purpose.

    The GOVERNMENT has the burden of proof.
  12. What is STRICT SCRUTINY?
    a law is upheld if it is NECESSARY to achieve a COMPELLING goernment purpose.

    The GOVERNMENT has the burden of proof.

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