Constitutional Law — Individual Rights, State Action & Levels of Scrutiny

What are constitutional individual rights generally rights against?

The government, rather than private individuals or businesses.

What is required to claim that someone violated a constitutional individual right?

State action.

What does “state” mean in the state action requirement?

Government, including federal, state, and local government.

What types of conduct can constitute state action?

Passing a law or taking official action as a government official.

Does a privately owned mall generally violate the First Amendment by refusing to host a political rally?

No. The mall’s decision is private action.

Does a town raise a First Amendment issue by allowing one political group to rally in a public park while excluding another because of its views?

Yes. The town’s decision is government action.

Can a private actor’s conduct ever be attributed to the state?

Yes, in certain circumstances involving government enforcement or support, or when the private actor performs the functions of a town.

How can judicial enforcement turn private discrimination into state action?

A court’s enforcement of a discriminatory private practice constitutes state action.

What is an example of judicial enforcement of a discriminatory practice?

A court enforcing a discriminatory property covenant.

Can discriminatory use of peremptory jury challenges involve state action?

Yes. A court’s involvement in jury selection can make the discriminatory conduct attributable to the state.

When does government support of private discrimination constitute state action?

When the government affirmatively helps enforce the discriminatory practice.

Is granting an operating license to a discriminatory business, by itself, state action?

No. A license alone is insufficient.

What is a company town?

A privately owned community that operates like a town, with features such as roads, parks, schools, or police.

Why can conduct by a company town count as state action?

Because the private owner performs functions associated with a town.

Which government did the Bill of Rights originally limit?

The federal government.

What makes most Bill of Rights protections applicable to state and local governments?

The Due Process Clause of the Fourteenth Amendment.

What is selective incorporation?

The application of most Bill of Rights protections to state and local governments through the Fourteenth Amendment’s Due Process Clause.

What do levels of scrutiny evaluate?

Whether the government has sufficient justification for an action affecting constitutional rights.

What is the default level of scrutiny discussed in the video?

Rational basis review.

What must be shown under rational basis review?

The law is rationally related to a legitimate government purpose.

Who bears the burden under rational basis review?

The challenger.

Must the government prove that its stated purpose was its actual purpose under rational basis review?

No. A conceivable legitimate purpose can suffice.

Can a court identify a conceivable purpose that the government did not consider under rational basis review?

Yes.

What is the usual result under rational basis review?

The government usually wins.

Which level of scrutiny does the video apply to an age requirement for motorcycle driving?

Rational basis review.

What must the government show under intermediate scrutiny?

The law is substantially related to an important government purpose.

Who bears the burden under intermediate scrutiny?

The government.

Must the purpose be the government’s actual purpose under intermediate scrutiny?

Yes.

Does intermediate scrutiny require the least restrictive alternative?

No.

Which level of scrutiny generally applies to classifications based on sex?

Intermediate scrutiny.

What must the government show under strict scrutiny?

The law is necessary to achieve a compelling government purpose.

Who bears the burden under strict scrutiny?

The government.

What alternatives does a court consider under strict scrutiny?

Whether less burdensome means could achieve the government’s compelling purpose.

What is the usual result under strict scrutiny?

The government usually loses.

What are the key words for the three levels of scrutiny, from lowest to highest?

Legitimate purpose + rationally related; important purpose + substantially related; compelling purpose + necessary.