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Constitutional Law II
Elon University School of Law
Garza, Sonya

CON LAW II

GARZA

SPRING 2013

I) INCORPORATION AND STATE ACTION

State Action Doctrine

The state has to be the actor for there to be constitutional claim, can’t be a private individual

Exceptions: public functions exception and the entanglement exception

Example, may be a private actor but the government is funding it

Incorporation

All you have to know is we have adopted a selective incorporation of the Bill of Rights

Trying to figure out if all rights should be incorporated or just certain rights

All rights are incorporated except these four: 3rd am. Right to quarter soldiers, 5th am right to grand jury indictment, 7th am right to a jury trial in civil cases, and 8th am prohibition against excessive fines

A) Introduction

1) Early History

a) Barron v. Baltimore (1833)

· Issue- Whether the Bill of Rights applies to the states or just the federal government?

· Holding- The Bill of Rights only applies to the federal government

· Reason- At this time, in 1833, court reasoned that the purpose of the Constitution was to establish individual rights federally, and not to state citizens

· Eventually court realizes that individuals have the same fundamental rights on either level

2) Privileges or Immunities of the 14th Amendment

a) Slaughter House Cases (1873)

· The court upheld a Louisiana law which ordered all slaughter houses to close except for one- a statutory monopoly

· The court held that the law did not violate the 13th or 14th amendments, including the due process and privileges and immunities clause, reasoning that the amendments only protect citizens against federal regulation

· Court stated that states have broad “police power”- can regulate anything not already enumerated to the federal government

b) Saenz v. Roe (1999)

· California had a law that limited the amount of welfare you can get during your first year of residency- CA had the highest welfare payments so wanted to make sure they were permanent residents first

· Court found the law to be unconstitutional under the Privileges and Immunities clause of the 14th Amendment

· Court stated that the 14th Amendment applies to state action

· Court used the Privileges and Immunities clause because welfare is a privilege, not a right, but it is a privilege that citizens of all states are entitled to

3) Incorporation

· Incorporation- what rights listed in the Bill of Rights should be incorporated to the States?

· Beginning in the 19th century, the court began to apply the Bill of Rights to the states by incorporating it through the 14th Amendment Due Process clause

· Now, the court interprets the due process clause to protect only the fundamental rights in the Bill of Rights

a) Adamson v. California (1947)

· Court held that the right against self-incrimination should not be incorporated through the 14th Amendment Due Process clause to the states because it is not implicit in the text

· The concurrence and dissent are important in this case

· The dissent argues for “total incorporation”- all of the Bill of Rights should be deemed to be included in the due process clause of the 14th amendment

· The concurrence argues for “selective incorporation”- not all of the rights in the Bill of Rights are fundamental and states are capable of selecting which ones are fundamental and should be incorporated

· Total incorporation gives courts less discretion, but does selective incorporation give states too much discretion?

· After Adamson there are a series of cases where the court looks at whether certain rights should be incorporated

b) Mc Donald v. City of Chicago (2010)

· In a 5-4 decision, the court held that the right to bear arms is incorporated through the 14th Amendment due process clause

· It was not incorporated up until this case

· The four provisions that have not been incorporated since McDonald are: (1) 3rd amendment right to quarter soldiers (2) 5th amendment right to a grand jury indictment (3) 7th amendment right to a jury trial in civil cases (4) 8th amendment right to prohibit excessive fines

· All other provisions in the bill of rights have been incorporated to the states

B) The State Action Doctrine

1) The General Requirement of State Action

· The Constitution generally imposes limits on state and federal governments and government officials, but not on private parties

a) The Civil Rights Cases (1883)

· The Civil Rights Act of 1875 broadly prohibited private discrimination by hotels, restaurants, transportation, etc.

· The court held that Congress could not use its power under the 14th Amendment to regulate private behavior- the Constitution only applies to the government

· The Civil Rights Act ended up being passed under the Commerce clause for this reason- The Constitution does not regulate private behavior

2) The Public Function Exception

· Private parties may be deemed to be state actors when they engage in activities “traditionally exclusively reserved to the state

while the court is a public forum, the parties within the court are private actors

· But there is a distinction between a private attorney and a prosecutor/ public defender

c) National Athletic Collegiate Association v. Tarkanian (1988)

· The UNLV basketball coach had a bunch of recruiting violations

· The NCAA (private organization) told UNLV (public actor) that they could either fire Jerry or there would be large monetary fines

· The school considered its options, one of which would be to drop out of the NCAA

· But this wasn’t really an option, the school would suffer, lose funding- so they fired Jerry

· Jerry brought suit, but the court found that even though the NCAA was acting jointly with UNLV, it did not meet the Joint Participation Exception because they had differing interests and differing goals. As a side note they said it was voluntary to be in the NCAA

II) JUDICIAL REVIEW

A) The Political Question Doctrine

· Some issues are not “justiciable”, or capable of being resolved by the courts because they present “political questions” that only the political branches (Congress and the President) may resolve

1) Baker v. Carr (1962)

· Case established a three-part test to determine whether a political question exists:

(1) Does the issue involve resolution to questions which, in the text of the Constitution, are committed to another branch of government?

(2) Would the resolution of a question force the court to move beyond the area of judicial expertise? (Important one)

(3) Do separation of powers concerns go against judicial intervention?

2) Nixon v. United States (1993)

· The court held that challenges to the impeachment process are non-justiciable because they present political questions

· Rehnquist held that the language of Article I, Section 3 demonstrates a textual commitment of impeachment to the Senate

· Allowing a court to review impeachment would create chaos because the President could keep appealing and we would not really be sure who our President is