Introduction Generally—What Does The Constitution Do?
Approaches to Incorporation
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Approaches to Incorporation (Selective v. Total Incorporation) Total Incorporation Exactly as the name implies—the bill of rights are totally incorporated through the phrase listed above in the 14th amendment Promoted by Justice Black by stating the primary reason for the enactment of the 14th amendment was to bring about the incorporation of ALL of the bill of rights Benefits: It is clear and easy to understand—simplicity Broadly protects our individual rights Uniformity of protection Disadvantages: Not grounded in historic reality and lacks any originalist or historic support Federalism—this isn’t respecting the state’s rights because you are imposing a rule on the states that the federal government had designed for itself Selective Incorporation (AKA “Fundamental Rights Theory”) Not plausible to suggest that the 14th amendment makes all the liberties guaranteed by the bill of rights, the term liberty is its own stand alone principle that judges have to interpret on their own in each case and judges are left to interpret what type of liberties are “fundamental” and are thus incorporated in the 14th amendment Process: If it is a “fundamental” liberty it is included within the 14th amend and you take each bill of right liberties and one by one ask if it is “fundamental and essential to the fundamental scheme of ordered liberty” (Duncan v. Louisiana) Benefits: Has textual support and conforms with tradition Disadvantages: Tricky and time consuming where judges have to determine if the liberty is “fundamental” and “of the very essence of the scheme of ordered liberty” Allows for judicial activism Counter argument to this is that both approaches allow for judicial activism This approach won the day and is what is currently used Where we are today: Pretty much all have been adopted except: 3rd (quartering), 5th (grand jury), 7th ( right to jury trial in civil trials), and 8th amendments Technically it is NOT accurate to say that the state “violated the 1st amendment”—you must say that the state “violated the 1st amendment as applied to the states through the 14th amendment” Once incorporated, the right is exactly the same as the federal right Doctrine of State Action Rule: The constitution only protects rights from government action, not private action Any official act of any government entity or official acting under color state authority will be subject to the scrutiny of the constitution protection of individual liberty Policy Arguments: To what extent do we want to insulate the Why would we want to limit government action The text and the original intent prohibits any expansion of coverage of the constitution Public Function Doctrine Tests: Marsh: Balancing test that looks at the public and private uses Jackson: Look to see if function is traditionally and exclusively a state function Marsh v. Alabama Facts: Shipbuilding corporation owns the entire town; town is privately owned; town wanted to infringe on a person’s right to free speech Holding: Court did not allow them to infringe on a person’s free speech and adopted a balancing test “When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position” Rule: Ownership does not mean absolute dominion—“the more an owner for his advantage, opens up his property for the use by the public in general, the more his rights become circumscribed by the statutory and constitutional rights of those who use it” Jackson v. Metropolitan Edison Co Facts: Lady wanted power, but the company cut her power Holding: Power providing is NOT something traditionally and exclusively done by a government function Rule: If the private function is traditionally and exclusively reserved to the states, then the constitution and the bill of rights apply Dissent: Exclusive would mean that nothing would ever fall under the public function doctrine. This opinion essentially restricts Marsh to its facts Nexus or Entanglement Exception Rule: This focuses on the acts of the government and if the government is so involved enough in the private actions, state action should be found The SCt does NOT say that this exception exists! Shelley v. Kraemer Facts: People entered into a racially restrictive covenant; blacks moved it, and the whites sued to rescind the sale to exclude the blacks Issue: If the government enforces the racial covenant, is that considered state action? Holding: The sate action is the judicial enforcement of legal agreements Problem: EVERYTHING will be considered state action if they try to enforce the contract that they have privately made Narrow Interpretation: In the absence of the state court’s enforcement, the willing buyer and seller would have completed the action, and here, it is an affirmative role of the court to enforce discrimination There is a difference between abstaining and enforcing an action Instances Shelley would be invoked: Peremptory challenges Prejudgment attachment context Burton v. Wilmington Parking Authority Facts: The coffee shop would not provide coffee to a negro; state was renting the shop to this owner; black person sued Rule: Look for the relationships that are “mutually beneficial”, “interdependent”, “symbiotic”, “but for relationships” Note: The government could have written into the least that stated that the shop couldn’t discriminate If the state tolerations behavior it is NOT enough, it must be Active facilitation of the conduct, OR Mutually beneficial state of affairs where the line between public and private is too thin Significant subsidies and monopolies have been insufficient; government issued liquor license is not enough Page of Directory: resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E collection -> A chapter of the kappa beta delta international honor society collection -> Example of a Letter of Application for Candidacy for Business and Separate Accounting* Program Accreditation collection -> Northeastern Council of Business Schools & Programs (October 14-15, 2016) collection -> Defense of Investment Professionals: Securities Litigation in the finra arbitration Setting By collection -> Airborne Topographic Lidar EA88E61A-F827-4590-985B-EC1F412EAE4E -> Jurisdiction over the Parties or Their Property (jop) collection -> Riparian Water Boundaries Titles and Rights EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? 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