Constitutional Law Outline



State Action

• Stems from constitution as a limit on government power, not a general code of conduct

• One exception is 13th amendment – it governs primary conduct

• Values associated with state action:

• Federalism: scope of congress’s power governed by prohibitions in constitution

• Individual liberty: protects a zone of private discretion

• Can restrict your kid’s speech

• Types of state action problems:

• Private actors performing public functions – Marsh

• Private action enforced by state government – Shelley

• State subsidization of private conduct – Burton

• State licensing and authorization – Moose Lodge, Jackson

• Private actors acting under government authority or with government assistance – Flagg Brothers, Lugar, Edmonson

• Pure inaction – DeShaney

• Civil Rights Cases:

• Arise from exclusions of blacks from hotels and railways

• Congress acts under section 5 power to enforce prohibitions in section 1

• Section 1 says “no state,” not no person

• Harlan: certain people are citizens, so that should be good against anyone

• Court rejects this: if this is what it means, it collapses everything and unlimits congress’s power

• Power to enact statute turns on whether conduct is unconstitutional under section 1

• Does section 1 reach private conduct, or only public?

• Is this much of a limit now?

• Now you’d use commerce power (Heart of Atlanta), that’s why Title VII is done with commerce power – to avoid state action requirement

• How does it protect individual rights?

• Putting a sphere of conduct off-limits to government regulation

• Public Function Doctrine

• Marsh v. Alabama: the court holds that a “company town’s” restriction on leafletting is state action sufficient to implicate the first amendment

• Company is government, so limits on coercive power that would apply to government should apply to them

• No other place to go – private authority has a potential to be really restrictive

• Balancing test: company’s autonomy vs. freedom of speech

• Because company’s property is open to visitors, they subject themselves to some regulation

• Some concentrations are so like government power in constricting liberty that they should be subject to restraint

• But how far does this go?

• Jackson v. Metropolitan Edison: the court reformulates the test to ask whether the private entity is exercising “powers traditionally exclusively reserved to the state.”

• Judicial enforcement:

• Shelly v. Kramer: race restrictive covenants

• Covenants are meaningless without state enforcement, and this is state action

• If you voluntarily enter into it, it’s okay But state can’t enforce it.

• What if you had a party and wanted to exclude women, and used the police to kick them out?

• Is this different?

• Dunno. A broader version of state action could affect physical autonomy. This could affect all private action – yikes!

• So Shelly has been read narrowly

• Subsidization:

• Burton: other forms of government entanglement with private action

• Focus is one whether coffee shop is a state actor because of a close connection to the parking authority

• Today he would sue under Civil Rights Act of 1964

• Court holds that coffee shop is a state actor

• Test? Case-by-case analysis, looked at number of factors

• But some subsidy is inevitable, so you can’t take that too far

• Ways of reading Burton:

• State entanglement with private activity creates state action. This keys off the “symbiotic relationship” idea

• State subsidization of private activity creates state action. The problem is that some subsidy is inevitable, e.g., police and fire protection. In subsequent cases the court draws the line at general services versus targeted ones.

• State dependence on private activity creates state action. This emphasizes the way in which the discrimination benefited the authority’s own revenues

• State symbolism may create state action. The court emphasized the flag flying over the restaurant

• Limiting principles on Burton

• Subsidies -- Randell-Baker v. Kohn: court rejects claim that private school for “problem” students was a state actor, even though it was heavily regulated and 90 to 99 percent of its operating budget came from public funds. The receipt of public funds was not dispositive because, in this, the school was no different from many private contractors who get most of their business from the state

• Symbolism -- San-Francisco Arts: court rejects claim that the USOC – who was given the exclusive right to use the word “olympic” by the government – was a state actor. Important point here is that court rejects a very strong symbolic argument for state action

Congress’s Power to Enforce the Reconstruction Amendments

• 13th Amendment:

• Section 1: “Neither slavery nor involuntary servitude… shall exist within the United States, or any place subject to their jurisdicton.”

• Section 2: “Congress shall have power to enforce this article by appropriate legislation”

• 14th Amendment:

• Section 1: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

• Section 5: “The congress shall have the power to enforce, by appropriate legislation, the provisions of this article”

• 15th amendment:

• Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

• Section 2: “The congress shall have power to enforce this article by appropriate legislation.”

• Section 5 14th amendment: congress can enforce provisions of the article

• 13th and 15th amendments have similar provisions, but 14th amendment has been most important

• 2 imporant scenarios for this:

• when congress lacks the power under the commerce claus

• when congress has commerce clause power, but wants to subject states to damages – congress can override 11th amendment immunity of states

• We do this last because:

• It ties up all the issues

• Disagreement between congress and court about interpretation of constitution

• Cases about scope of congress’s power

• Results frequently turn on substantive scope of underlying constitutional provisions

• Theories of Congress’s Power Under the Enforcement Provisions

• Remedial: congress has power to enact laws to remedy or prevent violations of the reconstruction amendments. Congress has discretion over what sorts of remedies are “necessary and proper,” but it has no power to define constitutional “violations” differently than the courts

• This remedial power is particularly important in two contexts:

• Complex remedies: congress can formulate intricate enforcement schemes – such as provisions of the Voting Rights Act – that would be beyond the power of a court to fashion

• Preventitive Remedies: congress may ban or regulate activity that it reasonably believes may lead to future constitutional remedies

• Substantive: congress has independent power to determine what is a constitutional violation under the reconstruction amendments. There are two versions of this power:

• Strong theory: congress can reach an independent conclusion on what the constitutional text itself means, as long as its conclusion is a reasonable reading

• Congress can disagree with the court

• Weak theory: congress can use its special factfinding competence to determine that a violation of the constitutional text exists, even where courts might (because of their institutional limitations) be unwilling to declare a violation. But congress has no independent authority to determine what the constitution means in the abstract.

• Court is sometimes deferential because it’s a court, but congress can do better factfinding in cases where to do so would expose an unconstitutional nature

Katzenbach

• Voting Rights Act: weird Puerto Rico provision

• Problem: court already held that literacy requirements are not unconstitutional

• Court holds that congress’s power under section 5 isn’t limited to prohibiting clauses that are unconstitutional

• Congress’s section 5 power is remedial, a preventive remedy for other forms of discrimination

• Congress can implement complex remedies

• Congress can have preventitive remedies

• Prevent a practice that may lead to constitutional violations

• Other theory: congress has power to disagree with the court

• In legislating, they act on their own interpretation

• 2 views:

• strong theory

• weak theory

City of Boerne

• chooses among the theories

• One-way ratchet: why can’t congress interpret more narrowly than the court?

• Problematic because rights frequently are in conflict

• In Employment Division v. Smith, court held: if a law is generally applicable, government doesn’t have to create exception to allow freedom of religion

• The RFRA, at question in City of Boerne, tried to overrule Smith:

• Says you now have to apply a compelling interest test if you burden exercise of religion, even if the law is generally applicable

• Court holds that RFRA is unconstitutional

• Court adopts remedial theory – congress can only remedy constitutional violations

• So can congress interpret free exercise of religion clause?

• Here, congress really is trying to overrule Smith. They clearly disagree with court of free exercise, so they’re changing meaning of constitution

• Court cites Marbury

• What if the court hasn’t ruled on a question? Can congress make its own interpretation?

• They can go first, but it can’t be in conflict with court’s interpretation

• Congress’s interpretation isn’t given any deference

• Two-part test

• Congress must be seeking to prevent or remedy an actual constitutional violation; and

• The remedy must be proportional to the violation

• Proportionality analysis: RFRA fails because

• The legislative record does not indicate any particular pattern of state action intentionally discriminating against religious exercise – at least in the last 40 years or so

• The RFRA applies very broadly – unlike the Voting Rights Act, it isn’t limited in time, geographic application, or to particularly egregious practices

• Clear statement rule: one check on congress’s power under section 5 – which the book doesn’t mention – is that congress will be held to have invoked its section 5 power only when it clearly says so.

• Government’s argument – can be prophylactic by banning constitutional practices if you’re trying to get at unconstitutional ones (proportionality test)

• Also look at sweep of law:

• RFRA is very broad – suggests that congress isn’t going after narrow problem but broader problem of incidental burdens – which isn’t unconstitutional

Section 5 after Boerne

• Cases after City of Boerne are 11th amendment abrogation cases (congress may abrogate the states’ 11th amendment immunity when it acts pursuant to section 5)

• Florida Prepaid: the court rejected congress’s attempt to hold states liable in private suits for patent infringement. Although patents are “property” protected by the 14th amendment, there were two problems under section 5:

• Congress hasn’t demonstrated any widespread pattern of state patent infringement. In fact, the legislative history indicates exactly the opposite

• The other problem is that the state doesn’t violate your rights until it fails to give you an adequate post-deprivation remedy – that is, there’s no constitutional violation unless the state not only takes your property but doesn’t provide a remedy for it under state law. Here, there’s no evidence whether any states don’t provide adequate remedies, and the federal law doesn’t make any distinction between states that do and those that don’t.

• Key point: proportionality test is fairly strict

• College Savings Bank: the court rejected a similar effort to abrogate the states’ immunity under the Lanham Act – the federal trademark statute – in cases where the states had falsely advertised their own products. The court holds that not just anything counts as a property right that can be protected under section 5. In order to hold that congress was remedying a constitutional violation here, the court would have to say that you have a constitutional right not to have a competitor falsely advertise its own product – which the court is unwilling to say.

• Kimel v. Florida Bd. Of Regents: the court held that congress could not validly abrogae the states’ sovereign immunity in the Age Discrimination in Employment Act, which was enacted under Section 5 and banned virtually all discrimination based on age. The court said that since the ADEA made illegal a lot of practices that would survive rationality review, it was not a valid exercise of the section 5 power. After Kimel, congress can probably only enforce the Equal Protection Clause in contexts where some form of heightened scrutiny would apply.

• Not anything you could get damages for is a constitutional property right

• The remaining cases concern two efforts to turn the section 5 power into something almost as broad as the commerce power itself:

• First, you could say everything is “property,” so that congress could protect almost any interest from states that might impinge on it somehow. It seems to Young that College Savings Bank rejects this idea, and that has to be correct

• Second, you could say everything is “equal protection,” so that anytime a state treats one group differently from another congress can step in and regulate

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