Select Page

Constitutional Law II
St. Johns University School of Law
Zick, Timothy

January 7, 2008

I. Bill of Rights only applies to the federal gov’t as written
a. The states are also bound by the 14th amendment- the Privileges and Immunities clause
i. Applies to the states and the state gov’ts
ii. Historically came from the civil war
1. Overruled a SC precedent- Dred Scott decision (held that slaves were not citizens or persons in terms of the constitution)
2. Provides for restrictions on the states (thinking of the southern states primarily in the 13th amendment)
iii. Protects a bundle of rights
1. Procedural due process
2. Substantive due process
3. Privileges and Immunities
b. 15th Amendment- denying newly freed slaves the right to vote
i. Poll taxes
ii. Literacy tests
iii. Grandfather clauses
iv. Property requirements
c. Incorporation- who is going to be bound by the bill of rights
i. The federal gov’t is most feared by the framers
II. Reconstruction Amendments- The framers of these amendments (13, 14, 15) gave Congress the power to enforce these rights by appropriate legislation
III. Private Actors and the Bill of Rights
a. 4th Amendment- only applies to the gov’t
b. 14th amendment- no, privacy that is protected. Permits a private person to make decisions that are precluded by a gov’t
i. Public pool- still gov’t
IV. ► STEP 1 IN ANALYSIS: You can’t start talking about a constitutional violation unless there is some arm of the gov’t doing the action
a. RD for this: Nature of the social compact between the gov’t and the people- not between people and people
i. Refers merely to the gov’t, not to individuals
V. ► STEP 2- NEGATIVE LIBERTIES: Does the constitution guarantee anything at all?
a. Income, shelter, education, ?
b. Limited in a sense that the gov’t will not do certain thing
i. Generally, it doesn’t guarantee anything affirmative, just guarantees that the gov’t will not do things
1. Exceptions: later
VI. Civil Rights Cases (pp 1179)
a. Congress passes a law that you can be liable if you interfere with access to places based on race
i. ISSUE- can Congress reach this and tell private businesses that you must deal on equal terms with blacks and whites?
1. TODAY- Commerce power allows Congress to reach this
2. THIS ISSUE- Close enough to backyard enforcement
b. Congress cannot do this-
i. No state action involved, merely private discri

stitution doesn’t apply
i. Pursue his tort remedy
ii. Cannot because the state has to be accused of doing something affirmative
iii. Doesn’t guarantee you a basic level of care from this agency
2. EXCEPTION- Someone a state has denied liberty to that the state has taken into custody
a. If the boy had been taken by the agency into custody
c. Established state action in three ways: (pp 1154)
i. Public Function Theory-
ii. Inextricable Entanglement-
iii. Directed by State
1. Difficult Line to draw between the three
VIII. PUBLIC FUNCTION THEORY
a. Private v. Public discrimination
b. If a private entity is performing a public function, that entity will be liable under the 14th amendment as a public entity
c. BLOCK PARTY HYPO- Control over access to a public street normally given to the gov’t actor- now we have taken this to ourselves. Now we’re standing in the gov’ts shoes.
Gov’t doesn’t ordinarily privatize roads