Protection of Individual Liberties: State Action Required

 

In General

1. The Constitution’s protections apply only to government action.

   Practically all of the individual rights in the Constitution only protect against government action. Private conduct need not comply with the Constitution, although it does need to comply with federal statutes.

   1. Exceptions: Private conduct must comply with the Constitution:

      1. Thirteenth Amendment: The Thirteenth-Amendment prohibition of slavery applies to private conduct.

      2. Private entity serving public function: When a private entity is performing a task traditionally performed by the government, the Constitution’s protections apply to that entity.

         • Example: Political parties running elections are private entities that serve a public function.

      3. Entanglement: Constitutional protections apply if the government authorizes, encourages, or facilitates unconstitutional activity.

         • Example: A restaurant that leases its property from the government is bound by the Constitution’s protections of individual liberties.

      4. Statute: Congress, by statute, may apply Constitutional norms to private conduct.

         • Example: The Commerce Clause may be used to apply Constitutional protections to private conduct.

2. Applicability to states

   The protections afforded in the Bill of Rights are not directly applicable to the states. However, the Fourteenth Amendment’s Due Process Clause (which does apply to the states) has been interpreted to make most of the Bill of Rights’ protections applicable to the states (known as selective incorporation). The only rights not incorporated are the:

   1. Second-Amendment right to bear arms

   2. Third-Amendment right to not have soldiers quartered in a person’s home

   3. Fifth-Amendment right to grand jury indictment in criminal cases

   4. Seventh-Amendment right to a jury trial in civil cases

   5. Eighth-Amendment right against excessive fines

 

Levels of Scrutiny

Government regulations or actions that restrict individual liberties are reviewed under various standards, depending upon the liberty at stake.

1. Strict scruntiny

   A law will be upheld only if it is necessary to achieve a compelling government purpose and if there is no least restrictive alternative. Least restrictive alternative: depending on the level of scrutiny, the court will consider whether there is a less burdensome manner by which the legislature may achieve its goal.

   • The government has the burden of proof.

2. Intermediate scrutiny

   A law is upheld only if the law is substantially related to an important government purpose.

   • The government has the burden of proof.

   • The court probably does not consider the least restrictive alternative.

3. Rational basis

   A law is upheld if it is rationally related to a legitimate or conceivable government purpose.

   • The challenger has the burden of proving no legitimate government purpose or that the law has no rational relation to that purpose.

COMPARISON OF DIFFERENT LEVELS OF SCRUTINY
		RELATION TO PURPOSE		PURPOSE		LEAST RESTRICTIVE ALTERNATIVE?		BURDEN OF PROOF
STRICT SCRUTINY		Necessary		Compelling Actual Purpose		Yes		Government
INTERMEDIATE SCRUTINY		Substantially Related		Important Actual Purpose		Probably Not		Government
RATIONAL BASIS TEST		Rationally Related		Legitimate Conceivable Government Purpose		No		Challenger