Constitutional Law II
I. Overview of Individual Liberties
a. 6 ways of viewing the Constitution
i. Textualism
1. Text alone, dictionary explanation
ii. Original intent
1. Framer Focused
iii. Original meaning
1. What was the meaning at the time, entire societal view
iv. Representation reinforcement
1. People speak minds, broad first amendment interpretation, participate in processes
v. Conventional Morality
1. What do Americans think about this
vi. Critical Morality
1. What actually is, regardless of what most Americans think
a. Not explicitly used most of the time
b. State Action Doctrine
i. Decision Tree
1. Is the Person a government official or body?
2. Is it a private party?
3. Is it entangled with a state?
4. Is it entwined with a state?
ii. States, municipalies, federal government all included, 13th amendment is textual exception
1. Positive—preserves federalism, federal government doesn’t get o powerful and take over
2. Protection of individual liberties only applies to state action. “No state shall…”
a. Civil Rights cases (1883), US v. Stanley: follow Constitutional text closely. Constitution doesn’t limit what private parties can do.
b. But what is state action? If state leases space to business that discriminates, is that state action?
i. (Yes: Burton v. Wilmington Parking. But no good test – sometimes state is simply “involved enough.”)
c. State inaction isn’t action: Descheny v. Winnebago County. When social worker doesn’t act to protect a child, that’s not state action.
iii. Exceptions to state actions:
a. Public functions exception:
i. Private conduct is state action when
1. Traditionally
2. Exclusively
3. Reserved to the state
ii. Examples
1. Marsh v. Alabama
a. Privately owned city with no indication of being privately owned
b. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it (broad)
2. Jackson v. Metropolitan Edison Co.
a. Electricity cut off without warning
b. State action when sufficient nexus between state and could be treated as action of the state itself
c. Exclusive matters, would otherwise change Marsh—very narrow
3. Amalgamated Food v. Logan Valley Plaza
a. Picketing in mall pickup area (extends Marsh)
b. More property is open to public, more rights are restricted, can control disruptions in other ways
4. Lloyd Corp v. Tanner
a. Restrictions on speech thus distinguishes from Logan Valley…doesn’t completely ban
b. Limits Logan
5. Hudgens v. National Labor Relations Board
a. Same facts as Logan
b. Overrules Logan, Marsh still applicable (narrows)
6. Elections, Parks, Policing Power
b. Entanglement exception:
i. if government authorizes, encourages, or facilitated conduct:
1. if state action, government may
a. cease involvement with private activity
b. comply
2. evaluate quality and quantity of interactions between the government and the private actor
ii. 4 areas
1. Judicial and Law enforcement activities
2. Government and licensing activities
3. Government subsidies
4. Voter initiatives that permit discrimination
a. Shelley v. Kramer
i. Restrictive covenant based on race.
ii. voluntary compliance with restrictive covenant wouldn’t violate 14th A.
iii.
b. Laws are upheld only if proven necessary to achieve a compelling government purpose.
c. Government has burden.
d. Law must be narrowly tailored to meet the compelling reason.
2. Intermediate
a. For gender & nonmarital children.
b. Law will be upheld if substantially related to an important government purpose.
c. Government has burden.
3. Rational Basis
a. For everything else.
b. Law will be upheld if rationally related to a legitimate government purpose.
c. Challenger of the law has the burden.
d. Test very deferential to government; laws rarely held unconstitutional under this test.
iii. Did the government meet the level of scrutiny?
1. Court looks at ends & means of the laws. What is the fit between the ends & the means?
a. Strict: end must be compelling. Very tight fit.
b. Intermediate: end must be important.
c. Rational: end must be legitimate. Minimal fit.
2. Analysis often focuses on over/under inclusiveness of the laws.
a. Very important to argue this after determining level of scrutiny. The more ways you can say this, the better off you’ll be as a challenger.
3. Why these levels?
a. Immutable trait
b. Political powerlessness
c. Relevance
d. History of discrimination
c. The Rational Basis Test:
i. This is the presumptive test to apply unless you can show a stricter test should apply.
ii. What is a legitimate purpose?
1. Traditionally legitimate: police purposes, such as protecting safety, public health, or public morals. Just about anything not forbidden by the Constitution can meet this test.
2. Romer v. Evans (1996):
a. Colorado amendment to prohibit gays from having any sorts of protected status is not legitimate.
