State Axn & Civil Rts
Analysis of State Axn in Civil Rts Leg.
- State Axn Not Req'ed When Cong. Exercise Pwrs
- 13th amend. rts
- Applicable2 priv. parties (CC, spending, tax)
- To protect nat'l cit. rts
- State Axn Req'ed When
- 14th & 15th enabling cl. exercised
- 14th D/P incorp's B/R
- Civil War Amend.'s
- State Axn Not Req'ed 4 13th (slavery) & Civil Rts Stt
- State Axn Req'ed 4 14th & 15th & Civil Rts Stt Created
- Debate 4 scope of enabling pwr Cong. has under 14th, §5
- Maj. that Cong. can't reach priv.
- Nec. & proper theory #1 says Cong. can reach priv. interferences
dir'ed @ state officials' ability 2 accommodate rt.
- Nec. & proper theory #2 (Brennan) says Cong. can reach
priv. interferences dir'ed @ priv. indiv's trying 2 exercise 14th
- Enforceable Civil Rts
- Rts of Nat'l Citizenship
- Derived from fed. union / polit. so Cong. can enforce dir'ly
w/o state axn
- Rt 2 travel
- Rt 2 B free from priv. interference in fed. elections
- Rt 2 inform fed. officials of viol's of fed. law
- Rt 2 assemble 2 petition Cong. 4 redress of grievance
- Rt 2 B protected from viol. while in lawful custody of US
- Rts Created / Recog'ed by 13, 14, 15th Amend.
- Specif. Rts under Civil Rts Stt. Cong. Seeking 2 Enforce
- Priv. Axn & State Axn
- Priv. Actors Free 2 Discrim. So State Neutrality Not State
- State Axn Quest.
- When not act dir'ly so div'ing line of state neutrality &
- Quest. of state axn is matter of def'ing priv. sphere of freedom
- Priv. Axn as State Axn
- Pub. fn: priv. party exercising fn. trad'ly & excl'ly
reserved 2 state
- Nexus Cases: state involvement w/priv party & see if fair
2 attrib. priv. actor's axn 2 state
- Pub. Fn
- All attributes of pub. entity must B there (Marsh, town)
- Trad'l & excl. 4 state so no pub. fn. 4 utility co. &
- Enforcing known priv. discrim. suff. 4 pub. fn. (PA v. Bd
of Trust, Evan)
- Prop. rt by fed. 2 sell so if can't, like badge of servitude
- Will 2 B enforced in discrim. matter
- Factors 4 state axn (Burton)
- Pub. prop.
- Pub. ass'n so sponsorship
- Lease control by state
- Profit by state so partnership
- Quest. of involvement
- State Axn in Auth. / Encouragement
- Not notice oblgn stand.
- Aff. act stand. where state must B responsible & ass'ed
w/specif. acts of civil rts viol.
- No gen. oblgn by state 2 protect priv. actor's civil rts
- But if left person in custody, then state axn if didn't take
- State Participation
- Active approval /
- State axn when judge supervise priv. atty's jury preemptory
- Must B involved w/activity causing injury /
- State initiation of act / pract.
- Gen. permission, passive approval, acquiescence insuff.
- Adoption / repeal of stt.
- Kind of Civil Rts Viol'ed & State Axn
- More inclined 2 find racial discrim. so higher state oblgn
4 racial discrim.
- Crim. Stt's 4 Civil Rts Leg.
- Stt Construction
- Rts protected
- Auth. Cong. used 2 protect rts
- Vagueness issues
- Two Stt's
- 18 USC §242
- Punishes anybody 4 deprivation of rts, priv's, / immunities
- 14th auth.
- Req's specif. intent 2 deprive V of fed. rts (Screws) so not
- 18 USC §241
- Priv. conspiracy 2 viol. civil rts punished
- 14th auth.
- Can prosec. priv. indiv. when conspire w/state actors (Price)
- OK 2 just allege some state axn 2 go forward w/trial
- Civil Stt's 4 Civil Rts Leg.
- Four Stt's
- Civil conspiracy 2 deprive rts of any person / class of E/P
- 13th auth.
- Must have some racial / class based invidious discrim. animus
- Can't apply 4 econ. based conspiracy (Carpenters v. Scott)
- 13th auth.
- Cong. def'ed badges of servitude as inability 2 sell prop.
- Discrim. intent req'ed b/c of race
- Deprive rts
- State axn req'ed but no strict scienter reqt
- All persons have same rt 2 make & enforce K
- Priv. indiv's reached
- Discrim. intent req'ed
- Cong'al Pwr 2 Remedy
- Broad Remedial Pwrs 2 Enforce 14th & 15th
- Preventive remedies which ct can't
- No need 2 adjudicate as long as remedial
- Ct uses RR
- Dif. Remedies
- Trad'al remedies forbid pract's viol'ing Const. / enforce
jud'ly det'ed Const. rt
- Preventive remedies 4
- Prior purposeful discrim.
- Facially neutral pract's which perpetutates effects of prior
discrim. / lend 2 purposeful discrim.
- If some subst'l dang. / risk of purposeful discrim. exist
- Cong. Pwr 2 Det. Substantive Const'al Viol. (Morgan)
- Cong. can only expand but can't contract 14th / 15th rts
- Cong. has fact finding competence that ct doesn't
- Limit substantive reach of Morgan 2 discrete & insular
- Cong. can't revise Ct. Const'al dec.
- Can remedy actual viol's
- Can make findings of neutral laws creating risk of purposeful
This material is copyrighted by the author. Use of this material
for profit is strictly prohibited without written consent
from the author.
Ms. Haeji Hong
Go Back to Law School Notes
Go Back to Con Law 2 Outline