http://supreme.justia.com/cases/federal/us/17/316/case.html
it’s relevance is
1) implied federal powers
2) First instance of means-ends rational review (proportionality in the broader sense) in the U.S. Supreme Court (1819!)
Lecture from Saturday:
The State Action Doctrine
1) Constitution’s are public law documents. Not private law.
a) Thus, a Constitution only binds public law persons, as a general rule.
b) Furthermore, the U.S. Constitution only binds the federal government, as a general rule.
Are there exceptions to these general rules?
Are there exceptions to these general rules?
Third party effect and color of law doctrines are attempts to extend the protection of the public law document to private law interactions.<
Third party effect asks if the public law document can have persuasive interpretive value to determining the rights and duties of private persons – can the constitution be used to interpret, e.g., a private law contract?
Color of Law
The color of law doctrine asks whether there is state action in the case because the private law person is acting as if they were the state; the private law person acting as-if they were the state may be acting “under color of law”.
Remember the case where the state would not enforce the private law contract – because court enforcement was state action.
How do courts adjudicate conflicts between competing fundamental rights?
E.g., my right to property versus your right to privacy One way to resolve conflicts is with the general principle of proportionality which is means ends review with strict scrutiny for suspect classes
Proportionality = Means Ends Review (Mere Rationality)
Is the law a rational means?
If no, it is unconstitutional.
If yes ask:
Is the law’s end permissible? (Zweckmäßigkeit)
If no, it is unconstitutional.
If yes, then do proportionality strictu sense
Proportionality Strictu Sensu (Strict Scrutiny)
Does the law interfere with a fundamental right or burden a suspect class?
What is a Suspect Class
A suspect class is a discrete and insular minority, politically powerless, which has been subject to historical discrimination.
Examples: Mentally handicapped people, illegitimate children, black people in the U.S., possibly also hispanic people, possibly also women, possibly also
(probably not) gay people
What is a fundamental right?
A right is fundamental if it is essential to the concept of ordered liberty.
What is essential to the concept of ordered liberty?
Your guess is as good as mine. History? Economy? Ideology?
Proportionality Strictu Sensu
What does strict scrutiny mean?
Proportionality strictu sensu means that the law must be necessary to serve a compelling state interest.
Incorporation of Fundamental Rights
The Bill of Rights only applies to the federal government as a general rule.
Exceptionally, fundamental rights are incorporated by the XIVth amendment and apply to the states as well as the federal government.
Takings Clause
Private property will not be taken for public use without just compensation. Private property will not be taken by the government for private use.
Private party may be taken for public use, but must be fairly compensated.