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



1. Activity by government and any of its components who claim a legal right to violate an individual’s civil rights/liberties.
o RESTRAINT on GOVERNMENTAL action and not action of the PRIVATE CITIZENS, unless they are acting as “state actors”
2. Gives the indiv. who’s rights have been violated the right to sue for damages sustained
3. QUESTION TO ASK: Is the person, who is an embodiment of the state or an actor of the state, engaging in conduct that indisputably violates the Constitution?

1. AGENCY STATE ACTION QUESTION – Is the person or entity that acted in a way that is transparently unconstitutional an actor of the state? Is the conduct attributable to the state/government?
a. Process: 1) Is there an undisputable constitutional violation?; 2) If yes, was the conduct done by a STATE ACTOR?; 3) If yes, then there is state action
i. Easy state action cases — includes cases where:
1. The state has acted; or
2. There is no state action
ii. Hard state action cases — includes cases where:
1. The court finds that a private actor must be subject to constitutional requirements because the state has delegated a traditional state or public function to the private entity.
2. The court finds that a private actor must be subject to constitutional requirements b/c:
a. The state has become entangled with a private entity; or
b. The state has approved, encouraged, or facilitated private conduct.
2. FALSE POSITIVE STATE ACTION – Questions the court treats as state action question, but there really aren’t state action questions – Must consider: whether the indisputable state action is unconstitutional
a. Process: 1) Is there an undisputable state actor?; 2) If yes, was the conduct an undisputable constitutional violation?; 3) If yes, there is state action.
i. Example: You have an undisputable state actor who has acted, but the question remains whether or not their action are in violation of the constitution.

1. In determining if state action exists, consider the following:
b. Is there an ALLEGATION of a constitutional violation? Does it appear that there is a constitutional violation?
c. Is there a STATE ACTOR?
d. Is this an AGENCY state action issue or is it a FALSE POS. state action issue?

Civil Rights Cases [1883, Bradley] — Holding: the 14th Amendment’s due process and equal protection cases apply only to STATE ACTION and not PRIVATE INDIVIDUALS. Congress’s power to enforce the 14th Amendment does not provide it with the authority to regulate individual conduct.

a. Harlan dissent à takes a broad view of the 13th and 14th Amendments supporting state action.
i. Argues that the 13th and 14th Amendments are not limited to government, but that congress can regulate individual action
ii. Argues the 13th Amendment applies to the eradication of ALL burdens of the slaves and minorities.

Flagg Brothers v. Brooks [1978, Rehnquist] à Holding: A state’s MERE ACQUIESCENCE in a private action DOES NOT convert that action into action of state

Lugar v. Edmonson [1982, White] à Holding: A PRIVATE PARTY’S joint participation with state officials in the seizure of disputed property is SUFFICIENT to deem that party as a state actor for the purposes of the 14th Amendment.

Deshaney v. Winnebago County [1989, Rehnquist] à Holding: A state’s FAILURE TO ACT is NOT SUFFICIENT to confer state action. The 14th Amendment ensures that the individual is protected from actions of the state and not from the actions of others.

Shelly v. Kramer [1948, Vinson] à Holding: Judicial enforcement/encouragement or undisturbed action of discriminatory behavior made by private entities is state action. The application of a facially neutral law to enforce private action that is discriminatory is state action [NARROW HOLDING: applies if there is a willing seller and buyer. When there isn’t a willing buyer, the action is not state action]. Even when a covenant is reasonable and consistent with public policy, it cannot be enforced.

b. Neutral Law – covenants enforcing land use
c. Private Action – racially restrictive covenants discriminating against minorities.

· The following help determine if there is a STATE ACTOR [NOTE: This list is not mandatory or dispositive]:
1. SYMBIOTIC RELATIONSHIP? à Has the state BENEFITTED from an entity’s actions?
a. Ex.: Burton v. Wilmington Parking Authority [1961, Clark] – Coffee shop was restaurant that refused to serve food to blacks. Shop was located within a parking garage that was operated by the Wilmington Parking Authority, which was an agent of the state. The WPA entered into a relationship with the shop to off set the shop’s debt, and the shop enjoyed tax-exempt status from the WPA. The top of the building displayed the national and state flag. In this case, the land and building were publicly owned, maintenance and construction was made by city donations and public loans, and the building’s upkeep was the responsibility of the WPA.
2. FUNDING à Who funds the conduct or the entity? Where did the money come from?
a. This factor ALONE is NOT SUFFICIENT for state action.
i. Ex.: Rendell Baker v. Kohn [1982, Burger] — the government supplied the school with 90% 99% of its funding and the school still wasn’t considered a state actor. The school was privately owned and was educating ½ of its students who were from public institutions. Student sued the school after he was discharged for failing to comply with policies.

3. PUBLIC FUNCTION DOCTRINE à Is the conduct part of a traditionally, exclusive state function [ex. Education, incarceration, national security, etc.]?
a. Rendell-Baker
b. West v. Atkins

4. GOVERNMENT ENDORSEMENT à Is there a possibility of public confusion or perception that government endorses the actions of the actor?
a. Burton—coffee shop was in public parking garage

5. DIRECT or INDIRECT GOVERNMENT CONTROL à Is the actor and/or conduct regulated or controlled by the government?
a. Ex: Appointment of the Board of Trustees, sub-contracting out of duties, licensing of people/organizations/buildings, granting of monopolies, etc]

Theories of Constitutional Interpretation (not covered in class)

A. Originalism → Judges deciding constitutional issues should confine themselves to enforcing norms that were stated or clearly implicit in the Constitution as it was understood by those who ratified it
1. Hard originalists → the meaning of the Constitution should be settled by asking the framers and ratifiers specific questions (i.e. does the due process clause include the right to choose abortion) (Scalia and Thomas)
2. Soft originalists → original understanding is important not for particular answers to particular questions, but in order to get a general sense of purposes and aspirations
3. Do you look at the intent of those who ratified it or those who drafted it?
B. Natural Law → the highest law, precedes positive law → search for the ultimate Truth that can be understood through evaluation of nature
C. Moral Arguments → values that are continually derived, annunciated, and seen in relevant application → uses modern moral reasoning when there is not clear precedent of text on the matter
D. Tradition → the relevant past includes, not only the intentions of the framers and ratifiers, but also the entirety of the history and values rooted in history
E. Common Law/Precedent → Courts must ascertain conventional morality and convert moral principles into legal ones by connecting them w/ the body of constitutional law → judgments emerge from past decisions rather than text and history
F. Representation Reinforcement → a decision from outside the text of the Constitution is okay as long as it promotes representation from more social groups

nted to overrule Barron (1833) [5th Amendment just compensation provision does not apply to the state government, just to federal governments, as it’s not a fundamental right] and Twining (1908) [self-incrimination is not a fundamental right that is central to a free country, thus it isn’t protected from state action, but only the federal government], making the 14th Amendment applicable to states [NOTE: Palko basically said the same thing — 5th Amendment [double jeopardy] didn’t apply to the states because it wasn’t a fundamental right. However, the 1st Amendment – press, speech, assembly, and religion are and are incorporated into the 14th Amendment; Duncan held that the 6th Amendment “right to a trial by jury” is incorporated in the 14th Amendment and is a fundamental right, applying to the state and the federal government.] 4. 7th (Jury trial in civil cases), Grand Jury, 2nd, 3rd, 9th and 10th not incorporated

III. Substantive Due Process
A. General
1. Court has used Due Process Clause to undo the harm done by the Slaughter House cases, through the back door → this has created some awkwardness that would be eliminated if Slaughter House was overruled
2. Privileges and Immunities Clause applies to U.S. citizens, Due Process and EPC apply to all “persons”
3. Court determined that “persons” includes corporations
4. Lochner is no longer good law → the court has almost entirely declined to protect economic liberties → but it is still the foundation for modern due process cases
B. Lochner v. New York (1905) → facts: questioned constitutionality of state statute providing that no bakery or confectionary employee may work more than 60 hours in one week or ten hours in one day, state contends that statute is reasonable b/c it provides for the general welfare by providing cleaner bread, it encourages the health of the baker, and a baker is more clean when he is not overworked
1. Court rejects all of these arguments → strikes down this statute as an abridgment of the liberty of contract
2. idea that liberty of contract is part of the 14th amendment comes from the fact that it was in the Civil Rights Act of 1866 → the goal of the 14th amendment was to next adopt that Act
3. court recognizes that the state, in its police power, may impose some restrictions on the liberty of contract b/c of the need to protect the safety, health, and morals of the general welfare → if the regulation directly serves this purpose then it is reasonable
4. Peckham Test: is this a fair, reasonable and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary and arbitrary interference w/ the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for support of himself and his family
5. dissent argues that this is a labor law restriction and should not be evaluated through the police power → gov’t should make law saying that bakers have to work less hours for same money →the majority answers that this is beyond the sphere of permissible governmental actions →premised on the notion that any gov’t use of power for the purpose of redistributing wealth is impermissible → this is the key to understanding substantive economic due process and its demise