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Constitutional Law II
University of Cincinnati School of Law
Bryant, A. Christopher

Constitutional Law II Outline

Prof. Christopher Bryant

Spring 2010

Constitutional Law II Outline

I. Requirement of Governmental Action: State Action

A. State Action and Private Power

1. Constitution applies to the government and to the states, not to private citizens.

2. Two reasons why private individuals are not subjected to the Constitution:

a) There would be no way to impose enforcement against private citizens

b) Even though private citizens are not subjected to the Constitution, the state may be instead (i.e. if a business discriminates and the state doesn’t prevent it.)

B. State Action and Federalism

1. Historical Overview

a. Originally, only the 14th Amdt was applicable to the states (rest only to the federal government.)

b. Two views on how the Constitution should be applied to Civil Rights Amdts:

1. Federal government has plenary power to protect people against public and private actors.

2. Amdts only apply when states default on their ability to enforce them.

2. Civil Rights Cases

a. Civil Rights Act of 1875 stated that all people were entitled to equal protection in housing, education, employment, etc.

b. But the Supreme Court overturned this Act, saying that private actions of private citizens are not governed by the 13th or 14th Amdts.

3. Substantive Content of State Action

a. After Civil Rights cases, it seemed that the court was holding: 14th Amdt applies only to states and federal government can only get involved if the state is not upholding the Amdt.

b. However, in US v Morrison, where the Court held that the Violence Against Women Act couldn’t reach a private citizen.

à Court therefore rejected that the feds can interject when a state fails to do so.

c. Court subscribes to the notion of private autonomy.

4. Pure Inaction and Government Neutrality

a. Two ways that a private actor can violate a state action.

1. State delegates a traditional state or public function to a private entity

2. Private actor a) becomes entangled w/ private entity or b) state encouraged the private actor’s conduct.

b. State action can also be violated by pure inaction (failure to act.)

5. How to identify State Action

a. Ask three questions:

1. Identify public actor (legislature, police, etc.)

2. What did the actor do?

3. Is that act constitutional?

b. Six-part test:

1. Aside from the 13th Amdt US Const, inapplicable to “pure inaction?”

2. But no such thing as pure inaction

3. Did the government action in contravention of Const?

4. Find government actor

5. Identify that actors’ action

6. Constitutional question mark

6. Primary point is that you realize that there is a state action requirement and the free exercise clause and free speech does not apply to private organizations. There are a few hard cases where we have to decide if government. To decide we have test from Burton. Does it look like an arm of government? Is there a symbiotic relationship?

C. State Action Cases

1. Deshaney v. Winnebago (1989)

FACTS: State awarded custody of a child to a father who beat the child so badly he suffered brain damage. Mom and child sued for violation of due process.

ISSUE: Was there a state action to allow this due process suit?

HOLDING: No. 14th Amdt does not require the state to protect life and liberty for its citizens against a private actor.

REASONING (Rehnquist): If state had child in custody, they would be responsible but not when child is with a private actor.

DISSENT (Brennan): State action was the department in WI that allowed child to live with this terrible parent.

2. Flagg Brothers v. Brooks (1978)

FACTS: NY law allowed for companies to repossess goods and sell them if their creditors defaulted. Flagg was a company that did this and their victim sued for violation of due process b/c there was no prejudgment hearing.

ISSUE: Does a state statute allowing a private company to take another party’s possession w/o a prejudgment hearing violate due process?

HOLDING: No. State didn’t act, it just failed to act and didn’t violate any laws. No state actors are named – this is a private suit.

REASONING (Rehnquist): This case is different from Fuentes and other prejudgment cases where the state or the court was involved with the seizure.

DISSENT (Stevens): Using this precedent, the state can divest itself of authority and never be subject to the 14th Amdt.

3. Lugar v. Edmonson Oil (1982)

FACTS: P filed prejudgment seizure against D in state court and the sheriff seized the goods w/o a prejudgment hearing.

ISSUE: Does state’s prejudgment seizure policy violate due process?

HOLDING: Yes. When a state and private parties act together, due process must be upheld.

REASONING (White): 2-part test to determine if state is acting:: 1) deprivation must be caused by the exercises of some right or privilege created by the state and 2) party charged w/ deprivation must be a state actor.

DISSENT (Powell): It’s unfair to P who didn’t know he was a state actor and subject to due process.

Policy issue:

Q: Does the state permit passive acquiescence of violating Due Process?

A: That’s the question that emerged after Lugar.

4. Shelly v. Kramer

FACTS: Two black families (in different states) bought homes that were in areas with restricted covenants saying blacks couldn’t own homes there. In both cases, the states enforced the covenants and in both cases, the black families appealed.

ISSUE: Does the court’s role of enforcing these covenants violate the 14th Amdt?

HOLDING: Yes. If it wasn’t for the state enforcement of the covenants, the black families could live in their homes so this is a state action.

REASONING (Vinton): There’s nothing wrong with the covenants themselves – people can discriminate – but when judges do it, it’s state action that is subjected to the law.


Bryant:This case is one of the biggest enigmas in constitutional law.

Bryant: Courts take race and property rights as two of the most serious things they enforce.

Policy issues:

Q: How is this different from Flagg Brothers? The state enforced a law there and the court is upholding the covenants here.

A: State law is different from a covenant that is directed at an individual.

Q: Does this mean that if a black person goes onto a white’s land for a BBQ and the white man doesn’t want him there, the black p

other courts and is now consensus

Consensus is not available to the courts; leave that to the legislators.

Representation + Reinforcement

Courts should literally interpret what’s addressed by the Const but on other issues, they should look at the political climate and what political representation supports.

Leads to interpretation that is too open and gives judges too many value judgments to make.


We don’t want Const and laws to be “rock hard” like Scalia says. Let ppl who lose cases strengthen their arguments and try again.

This model wants unsettlement, which means that there’s no way for a court to interpret a constitutional challenge.

B. Privileges and Immunities Clause

1. Constitutional Text

Amendment XIV, Section 1, Clause 2 of the United States Constitution:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

2. Slaughter House Cases (1873)

FACTS: Louisiana passed a law giving all slaughterhouse business to one company and competing butchers sued, arguing that the law violated the Privileges and Immunities Clause.

ISSUE: Did this violate implied rights in the Privileges and Immunities Clause?

HOLDING: No. Privileges and immunities under 14th Amdt was meant to protect rights of citizens of the US and not citizens of every state; it’s a narrowly constructed reading and the original intent of the 14th Amdt dealt w/ slavery, not the rights of businessmen like in this case. And it doesn’t apply to the states.

REASONING (Miller): Privileges and Immunities Clause was meant to a) protect your rights as citizens of the US and not your rights as citizens of a particular state (when that state has the power to pass whatever laws it likes within reason) and b) make sure that all people within that state had the same rights as everyone else and those rights weren’t abridged. The original intent was not to get involved with suits like this. Thinks that the Privileges and Immunities Clause grants the following rights: